In a fact pattern worthy of a law school exam question, an IRS employee calls the Howard Stern Show and is put on hold. The IRS employee on a different line, apparently either using fat fingers on a conference call feature, or on a speakerphone, takes a call from a taxpayer while on hold with Stern. The Howard Stern Show then picks up, hears the IRS employee talking with the taxpayer and puts the nearly hour-long conversation on the air live. The law school question is … in how many ways might the Howard Stern Show be civilly and criminally liable?
The question will likely be answered by the courts. The taxpayer has sued both the IRS for violations of the Federal Tort Claims Act and unlawful disclosure of tax returns and personal information, and the Howard Stern Production Company, and Stern individually, for negligence, invasion of privacy, and the intentional infliction of emotional distress.
Notably, no FCC violation is alleged. The FCC’s rule Section 73.1206 restricting the broadcast of telephone conversations does not apply to satellite radio.
The allegations against Howard Stern are negligence, invasion of privacy, and the intentional infliction of emotional distress. Each is a state law claim. The requirements for successfully bringing such a claim, and the levels of proof, vary from state to state.
Not currently alleged by the taxpayer are violations of federal and state wiretapping statutes, which prohibit the intentional interception and subsequent disclosure of oral or telephone conversations. The overhearing of a private conversation over an open second telephone line, and the broadcasting of that private conversation, may or may not violate that statute.
So, what is the lesson for radio stations here? How about – don’t piss off or embarrass unknowing private individuals by putting them on the air without their knowledge or consent? There is a huge difference between radio personalities and hangers-on who thrive on making on-air fools of themselves, and private individuals who may loath publicity and react very badly at being insulted or denigrated.
Every radio personality, program director, and program producer needs a sixth sense. That sixth sense needs to trigger caution when radio programming elements, particularly live ones, potentially cross the line into lawsuit-inducing conduct.
Before putting non-station-affiliated individuals on the air, put yourself in the shoes of the person and ask: Did the individual himself or herself contact the station seeking to be put on the air? Is the conversation that is about to be broadcast not surreptitiously obtained? Is the purpose of the broadcast something other than for the warped amusement of the listening audience? Is there no chance that any private or personal identifying information will be broadcast? Notably, with the Howard Stern broadcast of the taxpayer call to the IRS, not one of these questions can be answered “yes.”
The FCC’s Enforcement Bureau files are full of radio station telephone calls gone wrong. While the FCC is not involved here, this is a significant lawsuit which can equally result in huge defense costs and damages.
The Howard Stern Production Company and Howard Stern can likely afford to defend themselves. For your own radio stations, the insurance deductible under your errors and omissions insurance policy, as well as the non-productive time spent in defending a complaint or lawsuit, are likely not worth the programming value of embarrassing private individuals.
John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455. or[email protected]