Clear Channel’s recent $12K fine for putting a call siphoned out of the voicemail of one of its air talents attracted the legal-eagle-eyed interest of the attorney Peter Gutmann over at Womble Carlyle Sandridge & Rice, PLLC. This is his take on the issue. As usual, WCSR ask that you not take this into an actual courtroom for actual litigation – it is intended for general educational purposes only.
Unauthorized Broadcasting of Telephone Conversations
July 9, 2008
The Federal Communications Commission has expanded its penalties for the unauthorized broadcast of telephone conversations.
In order to protect expectations of privacy, the FCC does not permit telephone conversations to be broadcast without the knowledge and consent of all parties. An exception is where the parties may be presumed from the circumstances to be aware (or are actually aware) that at least part of a conversation is likely to be aired (as during a call-in discussion program).
The Commission’s ruling arose in explaining the basis of a fine levied against a North Dakota AM station that had broadcast a voicemail left on the private cell phone of the host of an on-air discussion show. Although the station licensee professed no knowledge of the incident, the caller was able to provide an audio recording of a broadcast containing his voicemail during which the host noted that the message had also been played over the air the previous day. (Without that evidence, it is possible that the licensee could have deflected the caller’s allegation through its own sworn statements denying the incident.) The FCC found that the overall record supported a finding that the broadcasts had occurred.
In prior cases, the Commission had ruled that personal answering machine messages, both incoming and outgoing, were “conversations” (defined as any words spoken during a telephone call) within the meaning of its regulation. In the North Dakota case, it found that a voicemail left on a private cell phone warrants similar treatment, since the caller would have no expectation that his message was apt to be broadcast. This interpretation suggests that as technology continues to evolve, newer forms of personal communication are likely to come within the scope of the rule.
In assessing an appropriate fine, the Commission tripled the usual $4,000 base amount for this type of infraction, citing the repeated unauthorized broadcast of the conversation as an aggravating circumstance warranting an upward adjustment. The Commission further noted that the licensee had a history of violating the same rule on its other stations (thus suggesting that group owners face increased potential liability for rule violations). Finally, the Commission stated that it wanted to “ensure that the forfeiture is not simply an affordable cost of doing business.” Whether the result is apt to achieve its stated purpose remains uncertain, though, since the offender in question facing the augmented $12,000 fine is Clear Channel.
In any event, it is essential to ensure that all production staff, air talent and newspeople remain aware of the need to notify and obtain authorization from any person calling the station (or called from the station) whose voice might be broadcast, whether live or through recording. The only exception is if the station’s intention to broadcast the call is clear from the circumstances.
