FCC Fines Radio Station $2,000 For Unconsented Taping of Telephone Call That Was Not Broadcast
by Jerry Glover
May 18, 2012
The FCC has fined a Maryland radio station $2,000 for taping a telephone call it placed to an individual even though the station never broadcast the recording. Nassau Broadcasting III, LLC, No. #B-11-IH-1561 (FCC May 17, 2012).
The station called the complaining party at 6 a.m. and began recording immediately without the recipient’s consent. Here’s the taped conversation:
Complainant (C): Hello
Station (S): Hi, is this [C’s name]?
S: Hi [C’s name], good morning, this is Phil and Arianna with 106.9 The Eagle.
S: Good morning, how are you doing [C]?
C: Am I on the air?
S: Technically, you’re being recorded right now.
C: But are we not live on the air?
S: But we are not live on the air.
C: Okay well you don’t have my permission to use any of my voice on the radio.
S: Oh bummer. Okay but can we at least discuss with you about tonight and [recording stopped].
The station admitted it had intended to broadcast the recording but noted that it never did.
The Federal Communications Act of 1934 (47 U.S.C. Sec. 503(b)(1)) any person who “willfully” or “repeatedly” fails to comply with any provision of the Act or any FCC rule is liable for a forfeiture penalty (i.e., a fine). The Act defines “willful” as “the conscious and deliberate commission or omission of any act,irrespective of any intent to violate” the law. 47 U.S.C. Sec. 312(f)(1) (emphasis added). The Commission has defined “repeated” as an act committed or omitted more than once, or lasting more than one day. See Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362, par. 10 (2001). The Commission must show that someone committed an unlawful act willfully or repeatedly by a preponderance of the evidence.
The Commission’s rules require a licensee, before broadcasting or recording a telephone conversation, to tell the other party to the call that it intends to broadcast the conversation. 47 C.F.R. Sec. 73.1206. The only exception is where the 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.” Id. The Commission assumes that awareness if the party being called is associated with the station or the party initiates the call at a time when the station customarily broadcasts telephone conversations. Id.
The Commission has enacted these rules to insure that a person’s right of privacy and their dignity is preserved.
The Commission defines a “conversation” to include “any word or words spoken during the telephone call.” See Cumulus Licensing, LLC, 24 FCC Rcd 1667, 1670 (Enf. Bur. 2009) (emphasis in original). Here, the station began recording as the call was being placed and the station intended to broadcast the call. Typically, the station should place the call, ask the person called if they consent to being recorded and, if they consent, to begin the recording at that point.
In this case, the station personnel placing the call did not tell the called party that they were recording until the called party asked about recording. The recording stopped because the caller stated he/she did not want her voice on the radio. The Commission held, therefore, that the station had willfully violated the Communications Act by recording a telephone conversation without permission.
The Commission reviewed its forfeiture penalty rules noting that a forfeiture of $4,000 is used for an unauthorized broadcast or recording of a telephone conversation. See The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087, 167115 (1997) recons. denied, 15 FCC Rcd 303 (199). The Commission can adjust the base amount of the forfeiture after considering the following: “the nature, circumstances, extend and gravity of the violation and the degree of culpability, any history of prior offenses, ability to pay and such other matters as justice may require.” 47 C.F.R. Sec. 1.80(a)(4).
Here, the Commission credited the station with not broadcasting the small portion of the telephone call it had recorded and did not wait until the FCC ruled against the station. Therefore, the Commission gave a “downward adjustment” to the forfeiture and fined the station $2,000.
It is important for station personnel to be trained in the rules regarding the recording of telephone conversations. Although recordings made without consent can lead to some humorous broadcast material, that prospect is not enough to overcome the privacy rights of those who are called.