In a Consent Decree released the day after Thanksgiving, the FCC agreed to accept a payment of a $35,000 penalty from a former television licensee for recording two telephone conversations for inclusion in a newscast, where the station called an outside party and recorded those conversations for inclusion in the newscast – before getting permission to do the recording. The licensee also apparently did not fully respond to FCC inquiries about the facts of the case, leading to the $35,000 fine. The FCC noted that the licensee had already sold the station, and was holding this money in a post-closing escrow account to be used to satisfy any fines that might arise from this conduct.

The decision is significant for several reasons. First, it is couched in terms of privacy regulation, with a discussion of the importance of privacy regulation to the FCC in the opening paragraph (see the Public Notice that accompanied the release of the Consent Decree). Recently, the FCC issued huge fines to independent telephone companies for not properly securing customer information – indicating a new emphasis on privacy regulation by the FCC. Couching Friday’s consent decree in those terms indicates that privacy issues are now a high priority for the FCC. As we have written before, privacy is a subject of interest to many other government agencies, and the recent interest of the FCC in this issue promises one more place where businesses can look for trouble should they respect the privacy of those with whom they interact, or should they not secure private information about their customers.

The second interesting aspect of the decision is the fact that these calls were recorded as part of a news investigation. In print media, reporters are routinely calling sources for information about issues that they are investigating, and writing reports based on those calls, often directly quoting the individuals who are called. Here, the FCC is saying that the broadcast equivalent of that routine journalistic technique is not permitted if the actual voice of the recipient of the call is broadcast. Presumably, the station could use the statements made by the person who is called just as would a print journalist if the call’s contents were reported by the station’s own staff rather than played from a recording. But the FCC seems to be saying that there is an extra level of privacy expectation in the use of the other party’s voice itself. There have been prior cases with the same holding that there is no news exception from the rule (Section 73.1206 of the FCC rules) on the use of calls recorded without first receiving the consent of the other party (see, for instance, our article here), but this emphasizes the point with the decision’s specific discussion of privacy expectations.

This case should serve as another reminder for both radio and TV broadcasters that they cannot start to broadcast a telephone conversation, or even to tape that conversation for later broadcast, without first getting the consent of the other person on the call. Even the broadcast or recording of the other person saying “hello” has been found to be a violation (see our article here). So, other than cases where a person calls an on-air call in program where there is assumed to be clear notice that the person will be put on the air if they call, stations need to be careful to observe the FCC’s prohibitions in this area or, as this former licensee found out, they will face the consequences.