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
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 today issued two fines to stations who violated the FCC’s rule against airing phone calls for which permission had not been received before the call was either taped for broadcast or aired live. We’ve written about other fines for the violation of this rule, Section 73.1206, many times (see here, here, and here). What was interesting about the new cases is that they made clear that a station needs to get permission to record or broadcast the phone call even before the person at the other end of the line says "hello."
In one case, the station was broadcasting using a tape delay. The station placed a call to a local restaurant and, when the person at the other end of the line said hello, the station DJ informed the restaurant employee that he was being broadcast and asked if that was OK. The person responded "yep." But he changed his mind later in the call. The station claimed that, had the person not given permission, the tape delay would have allowed the call to be dumped but, as permission was given, the station continued to run with the conversation on the air. The FCC found that insufficient, as permission had not been received prior to the person saying hello. The second case was much more straightforward – a wake up call by the station to a randomly selected phone number. While the station immediately informed the person who answered the phone that the call was on the air – that did not happen until the recipient of the call had already said hello. In the first case, the fine was $6000 – in the second, $3200.