The FCC last week proposed to fine a broadcaster for calling someone with their tape recorder running, with the intent to broadcast the taped conversation on the air. According to the Notice of Apparent Liability issued by the FCC, the recording was stopped after the radio station announcers identified who they were, and the person who was called said that he did not want to be recorded. What was taped was essentially the station employees calling the individual and saying hello, saying that they were from the radio station, telling the individual that he was being recorded, and the individual telling the employees to stop recording – which they immediately did. The recording was ended before anything substantive was said, and it was never broadcast on the air. Nevertheless, the station was fined $2000 because these initial stages of the conversation were recorded with the intent to use the recording on the air. According to the Commission, the FCC’s rules require that when a conversation is either broadcast on the air, or recorded for purposes of broadcast, the consent of the person being recorded must be obtained before the tape starts rolling. As with an over-the-air broadcast, if the tape is running when the person being called by the station says "hello,’ in the Commission’s view, the station has violated the rule – even if the tape is never used.
The station argued that this position makes the recording of telephone conversations not very entertaining, as the greetings and introductory comments in any call have to be done twice – once before the tape starts and a second time after approval for the recording has been obtained. The FCC adopted this rule about 30 years ago, even though many states allow the recording of a telephone call as long as one party to the call consents to the recording. Seemingly, the FCC’s rule even makes recording for news purposes by the station more cumbersome, as consent needs to be obtained before any recording is done (see the case we wrote about last year, where the Commission held that the taping of a call without permission, even in the context of the discussion of a public issue, was impermissible). The fine was imposed in this case makes very clear that the Commission remains ready to enforce this rule whenever a complaint is filed.