Former TV licensee cops plea to violating telephone rule, ignoring Enforcement Bureau

Ah, the telephone call rule. Section 73.1206. The fact that we’ve written about it at all is surprising – surprising because the rule is so clear and so simple that any violation of it comes as something of a surprise. And now we have an even more surprising instance: a television licensee (make that former licensee – more on that below) managed to get cross-wise with the telephone rule. While such TV violations are not unheard of, the more common instances of phone rule transgressions involve radio station announces who place on-air prank calls to unwitting victims. So the fact that the Enforcement Bureau has brought a $35,000 hammer down on a TV station serves as a reminder that Section 73.1206 limits all broadcasters, radio and TV alike.

Unfortunately, we don’t know many details of the violation in question. That’s because the guilty licensee entered into a Consent Decree, i.e., essentially a plea deal. The Decree itself says only that, on August 21, 2012, the Commission received a complaint alleging that, the day before, Station KTVX had “twice broadcast a recorded telephone conversation without prior notification to the other party to the conversation”, a telephone rule violation to which the licensee eventually confessed without further elaboration.

Despite this lack of specifics, the Consent Decree does provide a few take-home lessons.

First and foremost, the telephone rule is alive and kicking, and the Enforcement Bureau is ready, willing and able to enforce it. For anyone who may still be fuzzy on the niceties of the rule, here’s how the Bureau has previously described it:

[B]efore 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.) To paraphrase, when a broadcaster wants to air a telephone conversation, live or recorded, the mike can’t be opened and the recorder can’t be started unless and until notice of the broadcast/recording has been given – and if, upon receiving the notice, the caller chooses not to participate further, that’s the end of the matter. (The limited exceptions apply to call-in shows or other contexts in which the caller may be presumed to have consented to the recording.)

Second, as noted, the rule applies to TV as well as radio. In fact, it seems to apply more forcefully to the former than the latter because here the TV licensee got whacked for $35K. Historically, violations on the radio side tend to draw penalties of $4K or so. But the penalty in this case may have been increased because of an unusual quirk, which leads us to the third take-home here.

As noted, the violation occurred on August 20, 2012. But a month earlier the licensee had filed an application to sell the station; that application was pending when the complaint rolled in. It appears that the licensee was advised of the complaint because, according to a footnote to the Consent Decree, the licensee entered into an agreement “related to the [proposed] assignment” to place funds in escrow to cover the liability that might arise from the allegation. The assignment was then approved in October, 2012 and closed two months later.

Meanwhile, apparently nothing was done about the complaint until April, 2014 – some 20 months after the alleged violation and 17 months since the licensee had stopped being the licensee. In early April, 2014, the Enforcement Bureau finally got around to sending a letter of inquiry (LOI) to the now-former licensee.

The now-former licensee didn’t bother to respond to the LOI – and still hasn’t responded to it. Why? The Consent Decree doesn’t say. But like Alex Forrest, the Bureau is not going to be ignored. It appears that the Bureau somehow managed to contact the licensee, enter into “discussions” with it and, voilà, the Consent Decree emerged. The Decree doesn’t explain how the $35,000 penalty figure was arrived at, but it’s possible that $25K is attributable to the failure to respond to the LOI. Even then, that would leave $10K attributable to the telephone rule violation, a significantly greater amount than might have been expected if the station involved had been radio rather that TV.

So the final lesson here is that, even if you have stopped being a licensee, the FCC will likely hold you responsible for transgressions that occurred while you were still a licensee. At a minimum, they will expect you to respond to their inquiries about such transgressions (or alleged transgressions). That being the case, it’s best not to ignore billets doux from the FCC whenever they might arrive.