Posted on February 2, 2011 by David Oxenford

Rule Against Broadcast of Telephone Conversation Without Prior Permission is Constitutional, Says FCC

The FCC today upheld a $4000 fine issued to a broadcaster for broadcasting a telephone conversation without first getting the permission of the people on the other end of the line, denying reconsideration that the broadcaster had sought - arguing that the fine violated its First Amendment rights.  The telephone conversation that led to the fine was between a station employee and two airport officials, about a controversy concerning the local airport.  As summarized in our original article about that decision, the alleged violation arose from a call by the station employee to the airport officials to talk about the local controversy.  The employee allegedly identified himself as a station employee, and started to ask questions - without specifically stating that the call was being broadcast.  Even though the airport officials kept talking once they knew that the call was being recorded, the FCC still fined the station $4000, finding that the violation occurred once the officials said "hello" on the phone without having been told beforehand that the call was being broadcast.  The decision denying reconsideration is most notable for its long discussion of the First Amendment, which the station argued should override the FCC's rules against broadcasting a telephone conversation without prior permission.

The broadcaster argued that, as in any case restricting speech rights, the FCC needed to show a compelling interest to restrict a broadcaster's free speech rights.  Here, the broadcaster argued, no such compelling interest justifying the FCC's blanket rule against broadcasting a conversation without getting prior approval had been shown.  The broadcaster made the point that this was not some case of a wake up call to a visiting celebrity, or a spoof call to a prominent person where the caller was not identified, but was instead a case of a reporter calling a news source for comment on a news controversy.  The subjects knew that they were talking to the station, and thus should have assumed that the substance of their statements might end up being broadcast.  The mere fact that their actual statements were being broadcast live should not, contended the broadcaster, be a sanctionable offense. 

The FCC rejected the broadcaster's arguments, finding that there was no specific speech being restricted here.  There was no decision being made based on the content of any speech, which would demand the higher showing of justification.  Instead, the FCC found that the blanket rule was akin to laws governing the taping of telephone conversations without permission - they don't restrict speech itself, just the retransmission of conversations in which one party has some expectation of some degree of privacy.  The FCC also found that no undue burden was put on the broadcaster in its newsgathering efforts, as the reporter could have merely said that the conversation was being broadcast up front, and no issue would have arisen.  Thus, the FCC found that their rule against the broadcast of any telephone conversation without prior permission is justified, and that the application of the rule in this case was not excusable. 

Expect this case, or one like it, to one end up in the Courts.  The question of whether the FCC's rule, which even bans the taping of a conversation for broadcast before prior permission is received (meaning that a tape made of a conversation technically cannot be broadcast from the beginning, even if the subject of the call consents to the use of the tape for broadcast mid-way through the call), is reasonably justified, much less justified under the First Amendment's heightened scrutiny that is applied to restrictions on speech, is one that has been raised before, and will no doubt be raised again.  But until it is finally resolved in Court, this case, like the many others that we have written about before (see, for example cases here [consent that comes after "hello" is too late], here [broadcast of voicemail message without permission is prohibited] and here [unauthorized action by a former employee no excuse]) makes clear that the FCC takes this rule very seriously, and will impose penalties on those who violate its terms. 
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Posted on February 9, 2010 by David Oxenford

$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. 
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