Phat Phones Without Fat Fines!

Avoid Getting "Hung Up" At The FCC!

"Let's surprise someone in our listening area and put them on the radio. Call them and broadcast the conversation. By the time they figure out they're on the air, we'll have a good comedy bit done and ... it'll be a great morning waker-upper! Right? Any thing wrong with that? We do it all the time!"

How many times have I hear that? Or ... "Why not, every other station is town does it!"

For years disc jockeys and air personalities have broadcast telephone conversations. What they often don't know (and sometimes do know) is that these antics are frequently done illegally, and they and the station can get in a lot of trouble for it. And it's surprising how often this happens.

Why do it? The answer is always that comedy bits pulled on unsuspecting people can have high entertainment value. Depending upon the desired effect, telephone conversations are often used as a part of games, jokes and other devices to get listener attention and controversy. The practice is widespread and I am always amazed at the lack of knowledge of the FCC rules about broadcasting telephone conversations. Frequently, the air staff will think it's okay, and even argue against legal advice just because the station across the street is doing it.

The FCC rule is clear! Telephone conversations may not be broadcast live or pre-recorded, unless the other party has been informed that the call will be broadcast. The standard forfeiture for this violation is $4,000.

In fact, a broadcaster must inform the caller or the party being called before their voice is put on the air, AND, you may not record the conversation first and obtain the consent afterward.

In some situations, the Commission allows you to presume that the called party is aware from the circumstances that the conversation is, or will likely be, broadcast. For example, callers who phone into a call-in show expect to speak on the air. But in other situations you cannot ask for permission while on the air with something like this: "Hello, this is Jam Session, WWKK, we are live and on the air." The notice of intention to broadcast the conversation is required before the call is broadcast.

Another frequent gag is calling a competing station to somehow embarrass them. On top of this not being an original idea, it's a bad one, too. In one case, an air personality called the general manager of a competing station to ask about rumors of staff changes at their station. The call was aired live without obtaining permission. The FCC rejected an argument that a general manager knows that any call from a competing station might wind up on the air.

Contests can create unsuspecting problems. A station contest that required listeners to answer the phone, "I listen to the new sound of 13Q" and aired the calls live was held to be an activity that constituted a "conversation," requiring a notice of intention to broadcast before the telephone call is broadcast or recorded. To pass muster, the called party must be given a real opportunity to refuse to have the conversation broadcast or recorded while not yet on the air or tape. The notice must be given to the called party before initiating the recording and give the called party the opportunity to decline.

This is particularly important for News and Talk stations. As some stations turn away from music-intensive formats in favor of News and Talk, or in response to the FCC localism docket, they may be caught because of a reporter's attempt to obtain telephone actualities for later broadcast without first telling the source that the conversation will be taped, or a talk host trying to get a difficult target into a conversation. Compliance may dampen the spontaneity of the conversation, but the rule requires that notification of the recording for broadcast be obtained before the call is recorded.

Oh, by the way, this won't work either: Some stations have tried to deal with the rule by airing an announcement that any call from the station may be broadcast over the air. The FCC has informally advised that such announcements do NOT substitute for the required actual notice.

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.