FCC Again Fines Radio Stations For Broadcasting Telephone Calls
by Jerry Glover
August 31, 2012
Several months ago, we posted an article on this site summarizing an FCC decision which fined a radio station for broadcasting a telephone call without letting the person receiving the call know in advance that that the station would be broadcasting the call. The FCC’s Enforcement Bureau recently issued two new decisions against a station group owner and two of that group’s radio stations for violating the telephone broadcast rule. See In re Spanish Broadcasting System Holding Co., Inc. (WZNT), No. EB-06-IH-27171 (August 22, 2012) and In re WSKQ Licensing, Inc., No. EB-07-IH-8320 August 22, 2012).
Case No. 1
Station WZNT(FM) in San Juan, a subsidiary of Spanish Broadcasting Systems, Inc. (“SBS”), made so-called “joke” telephone calls as part of a comedy segment entitled “You Fell For It.” The first call, which was broadcast, went to an individual and pretended to be an intruder hiding under that person’s bed who, understandably, became upset. During the second call to another recipient, also broadcast, the show’s host pretended to be a loan shark attempting to collect on a debt. Apparently, no attempt was made for either call to inform the caller in advance that the call was being broadcast and/or recorded for later broadcast. A complaint was filed with the Commission.
SBS claimed that the station did not keep recordings or transcripts of its programming so it could not confirm or deny whether the segments in question ever aired. But then SBS also conceded that it did regularly air a program with the “You Fell for It” segment and that segment included prank calls requested by friends and family of the call recipient. The owner noted that another radio station it owned, WSKQ, had originated this series of programs and that the current series was simulcast on two other of the owner’s radio stations.
The telephone broadcast rule requires a licensee, before broadcasting or recording a phone conversation for later broadcast, to inform the party on the call that it intends to broadcast the conversation. 47 C.F.R. Sec. 73.1206. This rule is meant to protect the call recipient’s privacy and dignity. Since the SBS could not deny that the broadcast calls had occurred and since a similar complaint had been found sufficient to fine another of the owner’s stations for the same type of prank calls, the Commission found that the owner had violated the telephone broadcast rule.
The owner argued that the complaint should be dismissed because it was filed with the Commission by a person who was not a recipient of one of the calls in question. The Commission did not accept this argument noting that the Commission had accepted third party complaints in other telephone broadcast cases. The Commission also dismissed owner’s argument that a violation of the rule cannot be found if there is no recording of the alleged conversations noting that the Commission had never required a transcript/recording in order to investigate a complaint. That the owner had conceded running the series and conceded further that the series included prank call requests from family/friends coupled with the fact that the complaint was made very quickly after the broadcast (and was therefore considered reliable) and the fact that a sister station had been fined for a similar prank call gave the Commission a sufficient basis to conclude the calls had been made and broadcast.
SBS also made a bizarre claim that the so-called prank calls could actually have been scripted programming (a form of radio theatre) utilizing actors instead of members of the public. Not surprisingly, the Commission did not find this argument persuasive since affidavits from station employees never asserted this “theatre” program had occurred
The Commission levied a forfeiture of $25,000.00 against SBS.
Case No. 2
One of the employees of WSKQ/New York (owned by SBS) preteded to be an employee of a local hospital and made a prank call to a woman and told her that her husband had been seriously hurt in an accident and that he later died at the hospital. Apparently sounds of distress from the call recipient were heard during the call. This call was broadcast more than once. The call recipient had not been informed of the radio broadcast. The station alleged it received the call recipient’s permission to broadcast the call after the fact. SIDEBAR: Does anyone reading this article think the prank call was actually funny?
Following a complaint, SBS argued that the call had been made by a “vendor” with whom the station had contracted to produce a prank call feature show. Therefore, the station was not liable. The Commission quickly rejected that argument noting that a licensee is responsible for anything and everything on its air. The Commission noted that SBS had conceded that very same argument in a 2008 action against it by the Commission for a similar telephone broadcast rule violation. The Commission noted that the vendor was contracted specifically to make prank calls so it was clear that the station intended to broadcast this type of call. Therefore the station’s actions were willful. The Commission also noted that getting permission from the call recipient after the fact was irrelevant since the rules requires consent before broadcast.
The station was fined $6,000.
Getting permission to air a phone conversation before the broadcast may make prank call radio segments impossible to produce. Do I hear any real objections?