$16,000 Fine For Recording Telephone Conversation for Broadcast Without Prior Permission - No Excuse Because Call Made By Independent Contractor, By Subsequent Approval, or By the First Amendment
Two FCC cases were released last week fining broadcasters for violations of the FCC rule against broadcasting a telephone call (or recording a call for broadcast purposes) without first obtaining the permission of the person at the other end of the call. In one case, a licensee was fined $16,000 for phoning a woman, pretending to be a hospital calling with news that her husband had been in a motorcycle accident and had died. The FCC refused to reduce or eliminate the fine because the call was made by an independent contractor, as the Commission found that the contractor had been hired to provide recorded "bits" for the station, and was thus not acting outside of any limits set by the licensee. The decision also made clear that the violation occurs as soon as the person at the other end says "hello", if a recorder is running, even if the person being recorded subsequently consents to the broadcast of the call.
The size of the fine may seem surprising, but the Commission's staff found $16,000 to be appropriate due to the fact that the same licensee had just recently been fined for a similar offense. In another case released the same day, the fine was "only" $4000. Here, the call was made to airport officials in the context of asking these officials questions about a local controversy. The licensee raised a host of defenses - all of which were rejected. First, the FCC would not eliminate the fine based on the fact that the station employee making the call had immediately identified himself as being from the station. The licensee argued that, as the caller had identified himself as being from the station, the recipients of the calls should have known that they were on the air, and had thus implicitly consented to being broadcast as they kept talking. The FCC rejected this argument for two reasons. As the call was immediately put on the air, the decision found that once the "hello" was broadcast without prior permission, the station had violated the rules. Moreover, the exception in Section 73.1206 (the rule that bans the broadcast of phone calls without permission) that allows calls to be broadcast where the person on the call can reasonably be expected to know that the call will be broadcast applies only to situations where the caller "originates the call" to the station - calling the station to be put on a program (like a talk show) that they know or should anticipate will be broadcast.
The station went on to argue that this rule was a violation of its First Amendment rights. Where the station was covering a news story (not trying to produce some entertainment segment, as was the case with the larger fine described above), the licensee argued that some discretion should be exercised by the FCC before imposing a fine. The decision found that the FCC had weighed the privacy rights of individuals not to be broadcast on the air versus the station's interest in covering the news in adopting its rules in this area, and thus found that there was no First Amendment issue.
When one looks at these cases together, it seems that the Commission's decisions go very far in restricting the use of recordings made for broadcast. If newsgathering does not provide an exception to Section 73.1206, any sort of "undercover" investigation by a station which uses the telephones, where a recording of a telephone conversation is made and intended for later broadcast, could subject a licensee to FCC fines. Whether the FCC would in fact go so far if a major news story was broken in this way remains to be seen. But stations need to be careful.
Note: In any sort of newsgathering using the phones, regardless of FCC rules, be aware of state laws regarding the taping of telephone conversations. Some states require that both parties consent before a call is taped ("two party consent" states), while others require only that one party to the call consent to the taping. Thus, in any taping of a telephone call, beware of the law of your state, as the penalties for violations could present more problems than even the FCC rules described above.
