• Hi, You've Reached My Voicemail ... Please Pay the FCC $4,000
  • June 20, 2008
  • Law Firm: Holland & Knight LLP - Washington Office
  • It’s time once again for broadcasters to sit down with their on-air talent and go over some of the rules of the Federal Communications Commission (FCC). This time, it’s to remind on-air talent not to broadcast telephone calls without first informing the person on the other line that the call will be broadcast, and also getting the person’s verbal consent before putting the person on the air.

    It is not just live telephone calls that can get a station in trouble − voicemail greetings can cause problems, too. Recently, the FCC proposed a $4,000 fine against a station that broadcast the voicemail greeting on an individual’s mobile phone without first obtaining the consent of that individual.

    Specifically, a person complained to the FCC that on February 23, 2007, on-air talent for station WNOV(AM), Milwaukee, Wisconsin, called the complainant’s mobile phone and played his voicemail greeting over the air without permission. After further investigation, the FCC issued a Notice of Apparent Liability for Forfeiture (NAL) against the station, proposing to fine the station $4,000 for violating Section 73.1206 of the FCC’s rules. That rule requires that, before broadcasting or recording, a station must inform any party to the call of the station’s intention to broadcast or record the conversation, except when the 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. For example, it is clear that during a call-in talk show, any listener who calls the program is presumed to be aware that the call will be broadcast over the air, and therefore the rule is not implicated.

    In issuing the NAL to WNOV(AM), the FCC’s Enforcement Bureau analogized the facts of the situation to cases in which it had previously found that a recorded answering machine message is a “conversation” within the meaning of Section 73.1206. For example, in a 2002 decision, the Enforcement Bureau found, essentially on privacy grounds, that telephone users are entitled not to have their voice transmitted to the public, regardless of whether their voice is live or is lifted from an answering machine. In 2007, the Enforcement Bureau arguably went even further, declaring that an answering machine message constitutes a “conversation” protected under Section 73.1206.

    The NAL issued to WNOV(AM) serves as another reminder of the FCC’s broad (perhaps overly broad) interpretation of the word “conversation.” It appears that any prerecorded material transmitted by telephone would be deemed a “conversation” by the FCC, thus triggering the requirements of Section 73.1206.

    Under FCC procedures, WNOV(AM) must either pay the $4,000 forfeiture or file an appeal with the Enforcement Bureau. In response to any appeal, the Enforcement Bureau will either cancel the proposed forfeiture (which may be unlikely in this situation, given prior precedent), issue a forfeiture order upholding the proposed $4,000 forfeiture or issue a lesser forfeiture based on various factors. For example, if WNOV(AM) has no history of prior offenses, the Enforcement Bureau is likely to reduce the forfeiture.

    Nevertheless, stations are advised to avoid the situation entirely by clearly instructing their on-air talent to obtain prior consent before using any called party’s voice over the air, unless it is clear from the situation, such as a call-in talk show, that the called party’s voice will be placed on the air.