Peter Gutmann of Womble Carlyle Sandridge & Rice, PLLC weighed in the other day on the regulatory ins and outs of FCC broadcast phone call policy.
The perhaps inevitable result is this second opinion from another legal eagle:
There are some complexities to this decision and its application of the FCC’s so-called telephone rule to voicemail . My different view of one aspect of the case is set forth below:
The FCC Rule in question here, 73.1206, does not require stations that want to broadcast a recorded conversation to obtain the consent of the person who is calling, but only to "inform" the person who is calling of the station’s intent to broadcast before any recording is made. This recent FCC decision on Clear Channel admittedly uses the word "consensual," but any mention of consent is not based on the language of the rule. The ultimate issue must be whether notice of intent to record was given, and this case apparently involved a station employee’s private cell phone with no special voicemail notice. Because prior notice satisfies the rule, I take the position that the "please leave a voicemail" message merely must go on to provide notice of intent to broadcast, giving the caller the opportunity to hang up before leaving a voicemail.
Dennis P. Corbett
Leventhal Senter & Lerman PLLC