Heads Up: What's a Telephone Recording -- Digital Delay Systems

I've written before about the rules regarding broadcasting of telephone conversations. No matter how often reminded, this still appears to be one of the most often violated rules in broadcasting. New air staff or new technology are two of the most frequent reasons.

In the past, I've reminded broadcasters about warning air staff that their cute on-air pranks of surprising a called party by putting them on the air can land the station a big fine, and can count against them at license renewal time. I've also written about how broadcasting voicemail messages can land the licensee in trouble. Recently, the Commission added another technology to the pantheon of troublesome technology ... and this time it's the same technology it has encouraged broadcasters to use to avoid other violations in the area of indecency.

Here's the facts: A restaurant serving a burger named for an athlete recently badly injured in a motorcycle accident received a call from a radio station personality while on the air. The station was using a 10-second delay. The radio host told the restaurant employee who answered the phone, "You are on the air." He gave the station's slogan and then asked, "Is that OK?" And received the response, "Yep," and then responded to questions about how the burger should be prepared, such as: "Does the burger come out bloody?" before he hung up. The FCC received a complaint, presumably from a local listener, that alleged that station personnel did not identify the call as originating from a morning radio show, and that the station broadcast the conversation over the air on two occasions without consent from the employee or the restaurant.

Remember: The FCC rule requires that before recording a telephone conversation for broadcast, or broadcasting such a conversation simultaneously with its occurrence, a licensee shall inform any party to the call of the licensee's intention to broadcast the conversation, except where such party is aware, or may be presumed to be aware from the circumstances of the conversation, that it is being or likely will be broadcast.

The charge was that the telephone call was recorded on the 10-second delay before without informing the called party that it was being recorded or would be broadcast. The licensee contended it did not violate the rule because the station uses a digital delay system, which "dumps" the content of the conversation if the call recipient objects to broadcast of the conversation, and broadcasts the call on a 10-second delayed basis if the station obtains consent. Further, it contended that the use of the digital delay system itself does not constitute a "recording."

The commission staff disagreed. It emphasized that a recording need not be permanent and that the digital delay system constituted a recording of the conversation that began before notice or permission had been obtained. The Commission took the opportunity to remind all licensees that before a telephone conversation is recorded for later broadcast or is begun for simultaneous broadcast, the licensee must inform the other party that the conversation will be recorded for broadcast purposes or will be broadcast live, as the case may be. The recording of such conversation with the intention of informing the other party later -- whether during the conversation or after it is completed before it is broadcast -- does not comply if the conversation is recorded for possible broadcast. Likewise, the initiation of a live broadcast of conversation with the intention of seeking the other party's permission for its broadcast sometime during the conversation does not constitute compliance.

The additional lesson here is that calls must be placed by off-air staff who recite the notice before transfer to the air staff, or the digital delay systems must be disconnected before informing the called party.

I cannot overemphasize how important it is that management must inform all air staff of these rules and the FCC interpretation. There should be a specific statement of policy about recording or broadcasting of telephone calls placed in every studio, provided to every air staff member and in the employee manual of every station! You do have an employee manual ... right?

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.