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?