Broadcasting Voicemail Without Permission? No Way! It's still a phone call!

REDUX

I've warned broadcasters before about the FCC rule against broadcasting telephone conversations unless the other party has been informed that the call will be broadcast. The base forfeiture amount for the unauthorized broadcast of a telephone conversation is $4,000. But as reported (May 2nd, 2008 - "Phat Phones Without Fat Fines!"), many keep on doing it because an unsupervised (or supervised) disc jockey thinks he or she has to keep things "edgy" by broadcasting a surprise telephone call. Live or recorded, it will really get a laugh, right? But the FCC Rule is clear: Telephone conversations may not be broadcast live or pre-recorded!

Now, the FCC has added more definition to the prohibition and brought it into the new millennium as well -- and this one looks like it will cost the broadcaster a whopping $12,000 in fines.

In the past, the recorded conversation problem has typically come from someone preparing for a show, or a news reporter, taping a live telephone conversation and then playing that tape on the air without obtaining consent before taping. But rule was created before the advent of VOICEMAIL. What if someone leaves you a voice message without your asking for it -- and it's really juicy. Can you use it? After all, you didn't ask for it and the caller must know it's being taped. They left a message in an obviously recorded format. Isn't that okay under the exception where the parties may be presumed, from the circumstances, to be aware (or were actually aware) that at least part of a conversation is likely to be aired, as for example, during a call-in discussion program?

Well, now we know. The FCC now says no! And the rule extends to voicemail left on mobile phone devices as well.

The "guidance" came in the case a North Dakota AM station that had broadcast a voicemail left on the private cell phone of the host of an on-air discussion program called "News and Views." The licensee stated that none of its employees or managers have any knowledge of the broadcast, but the complaint to the FCC included an audio recording of one of the broadcasts of the station's DJ playing a message left on his voicemail by the Complainant. He also reveals that the message was played over the air the day before, indicating that the message was broadcast at least twice.

The ruling concludes that a voicemail message left for a station employee is a protected "conversation" that may not be broadcast without prior consent of the caller. It likens voicemail to its prior rulings that messages or conversations recorded on answering machines are protected and consistent with the Commission's longstanding concern with avoiding invasions of privacy.

So, here is the rule. Whether the call is live or taken from an answering machine, or left as a voicemail message where the caller obviously knows that the message is being recorded, the rule still "requires prior notice before a conversation is broadcast." Further, the Commission has made it clear that "conversation," as used in the rule, includes "any word or words spoken during the telephone call."

Management, pay attention to this! The ruling reiterates the principle that even when the management is unaware of what the air talent is doing, it is still the licensee who is responsible for material broadcast over its station and for compliance with the Communications Act and its rules; a licensee may not avoid liability for any violation merely by claiming that it does not know what did or did not go out over the station. Since the licensee in this case had a history of violations relating to the telephone broadcast rule, and there were repeated broadcasts, and "....to ensure that the forfeiture is not simply an affordable cost of doing business," the fine was raised to $12,000.

What's the takeaway? Management, make sure that all production staff, air talent and news people are properly instructed in your station's on-air policies, and make sure your station has some on-air policies. Get with your broadcast lawyer and make create a written code of conduct that gets published and provided to every station employee.

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.