Two big fines for the broadcast of telephone conversations without first getting consent of the person at the other end of the phone were released by the FCC today, and each raises a number of interesting issues. Section 73.1206 of the FCC’s rules prohibits the broadcast, or recording for purposes of broadcast, of telephone calls without first getting the consent of the person on the other end of the phone. In the first case released this week, a broadcaster was fined $25,000 for the broadcast of two phone calls on two commonly-owned stations. In the second case, the same broadcaster was fined $16,000 for a violation of the rule at a different station. These cases are very interesting in that they address and reject many defenses to the fines that were raised by the broadcaster.

The $25,000 fine came in the follow up to a Notice of Apparent Liability which we wrote about here. In this case, a station was accused of airing two calls in a program called “You Fell For It.” A complaint alleged that the station called individuals and put them on the air without notice. The licensee first attempted to defend against the claim on the grounds that the person who complained was not one of the people who was called and put on the air without consent. The FCC found that this was not necessary – any listener to the station could complain about a violation of the rules. The FCC found that this rule is not one where the only complaint can come from the individual harmed by being put on the air – though the FCC does not present any policy basis of why the rule should be enforced if the individuals who are apparently being protected (individuals who want to preserve their privacy by not going on the air) do not complain about the station’s conduct.

The station also suggested that there was insufficient proof that the calls actually took place in the manner suggested by the FCC, as the station did not keep records of these calls. The FCC determined that a detailed complaint was sufficient to sustain a fine, even in the absence of actual tapes or records of the call. Again, this was done even though a third party – not the station or the person who was called – filed the summary of what supposedly went on the air.

The station also suggested that, from time to time, it aired scripted bits on the air, and this could have been a scripted segment, not an actual telephone call. Again, this was rejected. The FCC determined that, as the licensee did not specifically state that this particular program contained scripted segments, and the evidence that scripted segments did from time-to-time occur came from other stations in the company, this claim could be given no weight.

Finally, the FCC concluded that the $25,000 fine was appropriate given that two calls were aired on two different stations. The FCC rejected a claim that, as the stations were simulcast to cover the diverse terrain of its market, the two stations should be considered as one. The Commission also justified its increase in normal base fine for this violation as there were other instances of noncompliance with Section 73.1206 by the licensee, and as the licensee had substantial resources, justifying a fine of this magnitude (even though the licensee claimed that, despite its large revenues, it actually had a net loss – the FCC finding that the gross revenues, not the profits of the company, were important in accessing the amount of the fine).

In the second case, the station called a woman and told her that her husband had been in a motorcycle accident and died – which was untrue – before being told that the call was a joke. The station sought to avoid the fine by arguing that it did not make or record the call. Instead, the call was done by a program vendor who supplied the station with such bits for its program. While the rule prohibits the recording by the licensee of telephone calls without the consent of the person being called, the FCC said that, even though the call was made by a third-party vendor, as the licensee had contracted with this vendor to provide the bits for the show, the licensee was liable for his actions. To hold otherwise would, the FCC said, allow licensees to avoid its rules simply by hiring third parties.

After-the-fact consent by the person called was also rejected as a defense. The FCC concluded that the rule is to protect the privacy of an individual when they are called and the mere fact that they later consent does not protect them (or others in the future) from calls made in violation of the rules.

This case makes clear that the FCC is intent on the enforcement of its telephone rule, and that stations need to be very careful in recording calls for broadcast without first obtaining the consent of the person being called. As set out above, a litany of potential defenses to the violations were rejected by the FCC – leaving very little if any room for fighting off a fine should a station be caught having made a recorded or broadcast a call without permission.