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FCC fines broadcast company for violating telephone broadcast rule, despite conversation not being aired

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A Maryland radio station and its parent company was fined $2,000 by the Federal Communications Commission for recording the beginning…

A Maryland radio station and its parent company was fined $2,000 by the Federal Communications Commission for recording the beginning of a telephone conversation without getting prior permission, even though the recording was never broadcast.

On May 27, 2011, two on-air personalities of WWEG 106.9 "The Eagle" called an individual at about 6 a.m. The transcript of the conversation shows that the two identified themselves at the beginning the conversation. The other party immediately asked if the conversation was on-air, and was told that it wasn't live, but that the conversation was being recorded. The individual did not want to be recorded, and the recording was stopped right away.

The individual then filed a complaint with the FCC, claiming the calls were “attempts to bait [complainant] into a conversation regarding a previous dispute with a neighboring business which conducts considerable business with [Nassau],” according to a Notice of Apparent Liability for Forfeiture filed by the FCC.

The FCC said that Nassau Broadcasting III, LLC, "willfully" disobeyed the telephone broadcast rule "by recording a telephone conversation for broadcast without giving prior notice to the individual being recorded,” according to the notice.

Section 73.1206 of the FCC rules requires that before broadcasting or recording a telephone conversation for later broadcast, the caller must inform the person receiving the call of his or her intention to broadcast the conversation, except when the individual is aware, or may be presumed to be aware, that the conversation may be broadcast.

This section of the rules "reflects the Commission’s longstanding policy that prior notification is essential to protect individuals’ legitimate expectation of privacy and to preserve their dignity by avoiding the broadcast or recording of their conversations without adequate prior notice," according to the notice.

Nassau admitted that the recording was made with the intention to broadcast it, but the conversation was never aired, according to the notice.

Washington, D.C.-based media lawyer David Oxenford, who has 30 years of experience representing media parties before the FCC, said fining a station for a conversation that was never broadcast was not something he "see(s) happening every day."

Oxenford said the issue should be concerning to broadcasters "who could find themselves in a similar situation." Oxenford, a partner at Davis Wright Tremaine, blogged about the incident on the firm's Broadcast Law Blog.

Program director at 106.9 The Eagle, Kym McKay, declined to comment on the issue, and Nassau Broadcasting could not be reached for comment. The FCC also could not be reached for comment.

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