The FCC's role

August 1, 2012

In addition to state and federal laws governing the taping of phone calls, the Federal Communications Commission has its own requirements concerning such taping.

The FCC requires that an individual notify other parties to a call before using a tape recorder in an interstate call. The rule requires that the individual either get consent from all parties before making the call, notify the participants at the beginning of the recording, or use a “beep tone” that is repeated regularly throughout the call.

The FCC rule only applies directly to local telephone companies, but those companies are required to impose similar rules on the public through their customer agreements. The only penalty that can be enforced by the local carrier is revocation of telephone service. (In the Matter of Use of Recording Devices in Connection with Telephone Service)

Broadcasters and the Phone Rule. Broadcasting a telephone conversation without notifying the other party involved in the conversation is subject to monetary fines or an admonition under an FCC regulation.

The “Phone Rule” states that a person who intends to broadcast a conversation or record a conversation for later broadcast with another party on the telephone must, at the beginning of the telephone call, inform the party that the conversation will be broadcast. No consent from the party is required.

The Phone Rule is enforced primarily against radio “shock jocks,” especially those who call people while on the air as part of a practical joke, but the rule has been applied to all kinds of broadcasters, including news gatherers.

FCC rulings make clear that when a person originates a call to a “call-in” talk show, it is presumed the person knows of the possibility of his or her voice being aired. (In the matter of Entercom New Orleans License, LLC)

The FCC is authorized by Congress to issue fines up to $27,500 for a single offense and no more than $300,000 for continuing violations, but may issue only admonitions on a first offense. (Broadcast of Telephone Conversations)

The Phone Rule extends to broadcasting previously recorded messages. The FCC has recently imposed fines for both for broadcasting a recorded voicemail greetings of an individual (In the matter of Courier Communications Corp.) as well as voicemail messages left on radio personality’s personal cell phones (In the matter of Capstar TX Limited Partnership)

Even if the recording is not subsequently aired, a station can still be fined under the rule; it is applied wherever the recording is made with the intent to broadcast (In the matter of Nassau Broadcasting III, LLC). However, deciding to not broadcast a recording after it has become clear the party does not consent may become a basis for a reduction of fines. If a program host calls and identifies himself and his station, the FCC has found that this does not inform the other party that their conversation will be broadcast (In the matter of REJOYNETWORK, LLC)