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.


Continue Reading More Fines for Stations That Broadcast Telephone Conversations Without Prior Permission – Permission After “Hello” Is Too Late

FCC Chairman Kevin Martin announced that he will be leaving the Commission on Tuesday as the new President is inaugurated, and thus will not be present at the FCC to set any last minute policy for the DTV transition.  In fact, if Martin had decided to stay for the end of the transition, he might well have had to stick around for a while, as there are bills making their way through Congress to delay the February 17 deadline for the transition to digital television.  Senator Rockefeller has introduced a bill that would extend the deadline to June 12, which Senate Republicans blocked last week, though it will reportedly be reintroduced this week.  At the same time, the three remaining Commissioners have all released letters that indicate that there are significant transition problems that need to be resolved before the transition deadline.  While there are those who wonder if the delay will really solve the problems that may exist – the movement is in the direction of a delay.

The letters from the Commissioners are most interesting.  First came a letter from Commissioner McDowell, not directed to Congress, but instead to Chairman Martin, publicly asking for information about the FCC’s DTV phone bank to answer questions from consumers about the transition.  According to the McDowell letter, he was unable to get information about the status of upgrades to the system to handle the expected influx of calls at the end of the transition.  McDowell also complained about calls that were not answered at all, or which had long wait times, when consumers called – wait times that often resulted in connections with a voicemail system.  And he raised questions about the failure of the phonebank to be open on weekends.  It has now been announced that IBM has been hired to man the phonebank, perhaps answering some of the questions Commissioner McDowell raised in his letter.


Continue Reading Kevin Martin Departs as Congress Looks at June 12 DTV Transition Deadline – While Remaining Commissioners Write Letters About Transition Problems

The digital television conversion end game is upon us, and everyone seems to be getting a little testy.  Seemingly, not everyone is convinced that the consumer education efforts have prepared the public for the transition, and thus Washington seems to be preparing for problems.  But, in a last minute attempt to solve some of the potential issues, both Congress and the new Administration have stepped into the breach to put pressure on broadcasters and the FCC to be prepared to deal with the February end date for analog TV.  Congress passed legislation authorizing the FCC to allow some television stations in each market to continue to operate in analog after the end of the transition to tell consumers who didn’t make the switch what to do (an analog "life line service").  At the same time, Congress urged the FCC to mind the transition and not start off on new regulatory battles, causing the cancellation of this week’s FCC meeting.  In this event-filled 10 days, the new Obama administration also stepped into the DTV transition, a potentially significant issue that will face the new administration less than a month after taking office, pushing broadcasters, cable companies and direct broadcast satellite companies to pay for and establish phone banks to provide assistance to consumers stranded by the transition.

The cancellation of the Commission’s meeting was perhaps the strangest of these matters.  The FCC was prepared to hold a meeting later this week, with a full schedule of items to consider, including various items related, in one way or another, to the digital transition.  Included were a series of fines to broadcasters, consumer electronics stores, and others for not doing everything required by the rules to facilitate the digital transition.  The Commission was also planning to start the rulemaking process to authorize digital "fill-in" translators, i.e. low powered TV stations rebroadcasting a main station on other channels within the main station’s service area to fill holes in digital service.  Plus, the FCC was to deal with the Chairman’s proposals for a free wireless Internet service on channels being vacated by television stations as part of the transition.  Yet, Congressman Henry Waxman, the new chair of the House Energy and Commerce Committee, and Senator Rockefeller, the newly appointed Chairman of the Senate Commerce Committee ( the committees with responsibility over the FCC) wrote a letter to the FCC saying that it should concentrate its efforts on the transition, and not take up issues on which the new administration may want a role (perhaps the wireless service).  After receiving the letter, the December meeting was canceled (the first time in memory that the FCC did not have a monthly meeting as seemingly required by Section 5 of the Communications Act). 


Continue Reading Congress Throws an Analog Lifeline While Telling FCC to Deal With the DTV Transition and Cancel Meeting, While New Administration Pushes for Phone Banks for Consumer Complaints

A Canadian radio station has apparently pulled off an amazing stunt that would have prompted an FCC fine if it had been done by a US radio station – calling Vice Presidential nominee Sarah Palin and engaging her in an on-air conversation under the premise that she was talking to French President Nicholas Sarkozy.  A recording of

Watch what your employees are up to. That’s the message of a recent decision by the FCC, fining a broadcaster $4000 for airing a telephone call that was taped and broadcast without the consent of the caller. In the case released earlier this week, the licensee asked for forgiveness based on the fact that the employee had already left the employment of the station, and because the licensee did not know of the conduct, could not even confirm that it occurred, and did not condone that conduct if it had in fact taken place. Essentially, the FCC found that the evidence provided by the caller who complained to the FCC was so convincing that the Commission could conclude that the call had in fact been aired without the caller’s consent even though the licensee could not confirm it, and the licensee was responsible for the actions of its employees. This sends the clear message to licensees that they must carefully supervise their employees, and think twice about putting that “wild and crazy” disc jockey on the air if the licensee thinks that he won’t be restrained by the Commission’s rules.

This case is another example of the FCC’s rules against airing phone calls without the consent of the caller (or taping those calls for airing without consent), except in the limited circumstances where a caller should know from the context of the program that, by calling the station, he will be put on the air. For instance, if the caller calls on a call-in line to an on-air show where the stations employees are regularly putting callers on the air, then the station should not have problems under the rules. But broadcasters are safest if they are cautious with such phone calls – warning callers with a taped or live message that there call may be taped or put on the air before the taping or airing occurs


Continue Reading Fine for Airing Telephone Call Without Permission – Unauthorized Employee No Excuse