By: David Oxenford, Wilkinson Barker Knauer LLP
Did you know that the FCC has a rule that requires that a broadcaster notify its audience that a program has been pre-recorded when the program “creates the impression” that it is live? Probably many broadcasters had forgotten about that rule (if they ever knew it existed). This week the FCC’s Enforcement Bureau entered into a Consent Decree with Salem Media Group, in which Salem agreed to pay a $50,000 penalty and set up a monitoring and compliance plan for 3 years, after admitting that it violated this FCC rule. The Enforcement Bureau specifically states that the action “will send a signal to the industry that the Commission remains vigilant in its duty to ensure that licensees adhere to the live broadcasting rule.” Consider yourself warned!
Section 73.1208 of the FCC’s rules requires broadcast stations to disclose to their audience that program material is prerecorded when “time is of special significance, or . . . [when] an affirmative attempt is made to create the impression that [the program material] is occurring simultaneously with the broadcast.” The program that led to the Enforcement Bureau action was called HealthLine Live, airing on Saturdays on over 20 Salem stations. The FCC, in its initial investigatory letter to Salem station KRLA(AM), the originating station (a letter available, as of the date of this article in the station’s public file), noted that because the word “Live” was in the title of the program, and because the program featured listener calls, the program gave the impression that it was being broadcast live. Reviewing the transcripts of the program provided by the licensee, it certainly seemed to convey the impression that the program was a live discussion of health issues.
The FCC began its investigation as a listener complained to the FCC that the program could not be live as the host had died before the program was broadcast. The program apparently continued to run for several months between the date that the listener stated that they originally heard the program after the host’s death and the date that the listener filed the complaint with the FCC.
In response to the FCC’s investigatory letter, the licensee admitted that the program was in fact prerecorded, and that the host was indeed dead. Because of the number of stations that broadcast the program, and the fact that only a handful of those stations mentioned to their listeners that the program was prerecorded, the FCC determined that a significant penalty was appropriate.
The rule requires that broadcasters notify their audience when a seemingly live program has in fact been prerecorded. That notification must come at the beginning of the program and be clear and understandable to the audience. On TV, the rule states that the notice can be given either visually or aurally. Commercials, promos and PSAs are exempt from the requirement.
With the warning provided by this case, broadcasters need to make sure to review all of their programming to be sure that they are not airing programs, or segments of programs (including any network programs), that appear to be live but are in fact not live, without providing notice to their listeners or viewers. Don’t re-run a talk show when the host is on vacation without mentioning that the program was recorded at an earlier date. Don’t include pre-taped phone calls in a program without providing notice that the calls have been prerecorded. If you include some live and some prerecorded calls in a program, disclose at the beginning of the program that portions of the program have been prerecorded. With the explicit warning that the FCC has provided in this Consent Decree, broadcasters need to be vigilant to avoid problems that can result in a costly lesson.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
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