Don't Touch That REC button . . .

Posted on May 17, 2012 by Harry Cole

UNLESS and UNTIL you’ve got consent – Section 73.1206 leaves very little wiggle room.

The telephone rule strikes again! Back in February of last year, we thought we made it pretty darn clear that, with very few exceptions, you’re not supposed to record any part of a telephone conversation for future broadcast unless you have first obtained consent from the other party to the conversation. You can look it up – it’s Section 73.1206. And yet, barely three months later, another licensee did just what it wasn’t supposed to do. If only it had paid attention to CommLawBlog.com, it could have avoided a $2,000 fine. Oh well, maybe next time.

Truth be told, this violation was not as bad as some others we’ve seen – including, particularly, the one we wrote about last year. In this case, a station’s morning team called some guy at about 6:00 a.m., possibly to discuss some dispute the guy was involved in. With the recorder running (but not on the air), the announcers ID’d themselves. The guy immediately asked whether he was on the air. No, responded the jocks, but they acknowledged that “[t]echnically you’re being recorded right now.” [Note: Why they qualified that admission with “technically” is not clear, since they were, in fact, recording him. But it was 6:00 in the morning, after all.] The guy astutely advised them in no uncertain terms that he did not consent to the broadcast of his voice.

To which the announcers replied: “Oh bummer”.

The announcers then terminated the recording and, to their credit, did not broadcast the snippet of conversation they had taped. But the caller was obviously cheesed off, and he complained to the Commission.

The Enforcement Bureau wasted no time in bringing the hammer down. As it pointed out in the Notice of Apparent Liability, the rule leaves no room for doubt:

before broadcasting or recording a telephone conversation for later broadcast, a licensee must inform any party to the call of its intention to broadcast the conversation, except where such party is aware, or may be presumed to be aware from the circumstances of the conversation, that it is being or likely will be broadcast.

(Those are the Bureau’s italics, not ours.) In responding to the Commission’s initial inquiry, the licensee admitted that the announcers made the recording with the intent of broadcasting the conversation. Bingo – violation.

There are a couple of take-home messages here. First, Section 73.1206 does mean exactly what it says, and the Commission is going to enforce it. So even if the recording is not broadcast, the rule can still be broken. Second, the First Rule of Holes applies: when you find yourself in one, stop digging. In this case, the licensee saved itself at least $2,000 by not broadcasting the recording. That exercise of judicious self-control was, in the Bureau’s view, a sua sponte “corrective measure” taken before the Commission got involved at all. As a result, the standard penalty for a Section 73.1206 violation – i.e., $4,000 – was halved.

Still, even at half the standard penalty, two grand is a hefty price to pay for such an easily avoidable violation. And that’s not counting the legal fees rung up for helping to prepare the response to the FCC’s inquiry, or the internal hassle that invariably accompanies the response process. So can’t we all agree that, as tempting as ambush phone calls may be (particularly at 0 dark 30), it’s best to just say no to that temptation?
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Old Complaints Never Die . . . And They Apparently Don't Fade Away, Either

Posted on February 21, 2011 by Harry Cole

Four-and-a-half-year-old allegation of telephone rule violation leads to $25K fine

The FCC’s rule on the broadcast of telephone conversations is straightforward and, when you get right down to it, pretty simple. But a recent fine for a violation adds a new and troubling dimension to the enforcement of that or any other rule, a dimension that broadcasters should be aware of.

First things first. The telephone rule (Section 73.1206, if you want to get technical) comes into play when a broadcaster wants to air a telephone conversation, live or recorded. When that happens, the licensee is required, BEFORE the call is EITHER broadcast OR recorded, to inform the person on the other end of the call of the licensee’s intention to broadcast the conversation. The mike can’t be opened and the recorder can’t be started unless and until that notice has been given – and if, upon receiving the notice, the caller chooses not to participate further, that’s that. (There are some narrow exceptions, but they’re not relevant here.)

The practical, and wholly intended, upshot of the rule is that it discourages – actually, it flat-out illegalizes – a wide range of classic radio bits that many find amusing. Fake phone calls – designed to elicit shocked or befuddled reactions which in turn generate laughter from all but the unfortunately shocked/befuddled soul on the call – are taboo. So, for example, if an announcer were to call someone and claim to be an intruder hiding under the call-ee’s bed (without, of course, letting on that the whole thing was a joke), and if that call were to be broadcast live as it was happening, that would be a violation of the rule. Ditto if the announcer identified himself as a loan shark looking to collect on a debt.

The standard penalty for violation of Section 73.1206 is $4,000. 

Now, about that recent fine.

A complainant alleged that the host of a radio show in San Juan, Puerto Rico had – without providing the required notice – made prank calls on-air, claiming to be, in one instance, an intruder hiding under the call-ee’s bed, and in another, a loan shark looking to collect on a debt. If the allegations were accurate, it was an open-and-shut violation of the telephone rule.

But here’s the problem. The complaint was filed with the Commission in April, 2006, but it appears from the Notice of Apparent Liability that the Commission didn’t bother to ask the licensee for its side of the story until October, 2010, four and a half years later. 

Quick, how much detail can you remember about what were you doing four and a half years ago? 

Not surprisingly, the licensee responded that it couldn’t confirm or deny that the incidents happened as alleged. Hey, stations aren’t required to keep tapes of all their programming, 24/7, forever, and a lot can happen over the course of some 40,000 hours of broadcast programming. The licensee did confirm that, back in 2006, it aired a show featuring an announcer with the name identified in the complaint, and that announcer’s show did include a segment in which “listeners called in and requested telephone calls be made to family members or friends”. 

In other words, the licensee at most confirmed a couple of the extraneous details of the complainant’s allegations, but stopped well short of admitting anything close to a violation.

But that was enough for the Enforcement Bureau, which concluded that the licensee had confirmed enough of the complainant’s allegations to make the complaint “credible” absent any “countervailing evidence”.  That’ll be $25,000, please – make the check payable to the FCC, and thanks for your business.

Wait a minute. $25K? What happened to the standard $4,000 fine for telephone rule violations? 

The Bureau did start at the $4,000 level, but didn’t take long to adjust that figure upward more than six-fold. It turns out that the program in question was broadcast not only on the station mentioned by the complainant, but two other stations as well. And it also turns out that this particular licensee had been fined for violations of the telephone rule on at least four separate occasions previously. None of those earlier occasions involved the San Juan station (or the two others which carried the show at issued here), but they provided a “history of prior offenses” sufficient to justify upward adjustment of the fine.

So just like that, allegations raised four and a half years ago but apparently ignored by the Bureau in the meantime suddenly blossomed into a healthy five-figure fine.

Sure, the licensee in question here may have had a checkered history and may have deserved what it got. (We’re not in a position to resolve that – although at least two of the licensee’s earlier telephone rule violations shed a less than favorable light on its programming. Check them out here and here.) But the question of its recidivistic nature entered into things only after the Enforcement folks had determined that a new violation had occurred. And that determination was made on the basis of allegations which the licensee had been given no opportunity to challenge until four and a half years after the fact.

Which brings us to the lesson here. It appears that the Enforcement Bureau does not view itself to be under any obligation to give broadcasters the opportunity to respond to complaints within a reasonable time after the alleged misconduct. And when it does finally get around to asking for the broadcaster’s side of the story – in this case, more than four years after the fact – it will happily take a wholly reasonable non-committal answer (e.g., “we can’t confirm or deny the allegation”) as a failure to adequately rebut the complaint. That seems to put the targeted broadcaster at a huge disadvantage.

Unfortunately, until greater advances are made in time travel, there may be no effective way of counteracting this. That is especially so when the allegations involve something as ephemeral as a snippet of unrecorded programming. A reasonable statute of limitations might be nice, but the statute of limitations that routinely applies to broadcasters is, at bottom, no limitation at all, as this case demonstrates.  (Of course, the longer the Bureau delays in getting the enforcement process started, the more it jeopardizes its own ability to be able eventually to collect any fine that might be assessed -- so even if the Bureau isn't worried about due process considerations, it might consider whether its time is prudently spent initiating forfeiture proceedings that will just die on the vine.)

All of which merely underscores the importance of vigilance at the time of broadcast. The best defense against allegations of long-ago misconduct is to try to avoid any misconduct in the first place.
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