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"Recording Callers"

March 10, 2011

Ask The Attorney

In our latest "Fresh Content" feature, we ask attorney Communications Law attorney John Garziglia about a sticky situation in the studio. It canhappen to any station at any time and probably has happened to you. What should you do when one of your employees records a listener without telling him or her first that the recording device is on.

RI: I just walked in to the studio and realized that my morning man (highest ratings in the market) recorded a listener and played it back on the air. He did not tell the caller he was recording and there was no contest running. The caller is not complaining. In fact nobody is. However, I am the GM and I saw it all happen.

JG: Let's assume here that this was not a request line caller or a call-in show.  Rather, this was just a bit that was being done with a listener the morning man called, or a listener who called the station.  The listener had no idea the call would be broadcast.

So, upon finding this out, as GM restrain yourself from expressing yourself with words such as #@!*&# and $%@#&% (since there are microphones around and in a broadcast station one never knows for absolute certainty that microphones are off), and ask your morning personality and anyone else on your station staff who might likewise do this (including your news staff) to join you for a refresher course on the relevant FCC rule. The FCC rule is Section 73.1206 which prohibits putting callers on the air or recording them for later broadcast without informing them of the intention to broadcast the conversation.

The FCC has emphasized time and again that the caller must FIRST be informed he or she will be put on the air, prior to going on the air, or prior to rolling tape.  Rolling tape first, and then asking a listener if a call can be broadcast, is a violation of the FCC's rule.

News people can be particular egregious in a violation of this rule as starting out a conversation with "I am recording this conversation for possible later broadcast" is often a conversation killer.  Yet, the rule is what it is, and getting actualities first, and then asking the called party if parts of the conversation can be broadcast, is a violation of the FCC's rule.  Remarkably, however, it is not often that news people are tagged with this violation.

Rather, the violator who is pursued by the FCC is often a snarky radio personality who, as part of a bit, calls someone and makes a fool of them, or calls the competition and scores with a fake phone call.  It is for these calls that station personnel must be especially careful to clearly state prior to putting someone on the air that the call is being broadcast, or prior to rolling tape that the call is being recorded for possible future broadcast.  While any call in violation of the rule can result in an FCC fine, it usually takes a complaint filed with the FCC to set the FCC's enforcement processes in motion.

The exception to all of this is where the caller or called party is aware or may presume from the circumstances of the conversation that the call is likely to be broadcast.  This exception covers call-in shows, station contests and request-line calls to telephone numbers dedicated for these purposes.

Also, while the FCC rule recognizes no difference, it is less likely that a CALLER to a radio station will file an FCC complaint than will a person CALLED by a radio station out of the blue.  Unless the listener has a reason to be unhappy about what was broadcast, it is likely that nothing will come of it even though there was possibly a violation of the FCC's rule requiring advance notice to broadcast, or to record a telephone conversation for later broadcast.

Back to the question above, if the caller called a request line number that is given out over the air where certain calls are routinely put on the air, it is arguable that the morning man did nothing wrong and there was no obligation to inform the listener in advance.  But, where there is a doubt, the caller should be informed.

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