DA 96-257 Federal Communications Commission Record 11 FCC Red No. 6 Before the Federal Communications Commission Washington, D.C. 20554 LETTER February 26, 1996 Released: March 4, 1996 IN REPLY REFER TO: 95090106 95100532 96010186 Citicasters Company Licensee, Radio Station WKRQ(FM) One East Fourth Street, 6th Floor Suite 600 Cincinnati, OH 45202 Attention: James R. Bryant Dear Licensee: By letter dated August 4, 1995, we inquired into an alleged violation of Section 73.1206 of the Commission'sRules regarding the broadcast of telephone conversations.Our letter reported a complaint that on April 26, 1995. adisc jockey/radio personality of Station WKRO(FM), Cin- cinnati. Ohio, telephoned Don Henley and, without hisknowledge, recorded and subsequently broadcast parts of the conversation. In your reply of September 11. 1995. you concede that a conversation between two air-personalities and Mr. Henleydid occur. You assert that two air personalities ofWKRQ(FM)'s regular morning show called Mr. Henley for the purpose of thanking him for complimentary comments about WKRO(FM) he had offered during a recent concert.You state that upon reaching Mr. Henley. the disc jockeyimmediately identified himself and the other disc jockey.informed Mr. Henley that the call was from the 0-102 early morning show and that the call was "on the air inCincinnati." You further stated that the conversation wasbrief and that it was recorded and played on the air. You also have provided us with a copy of the tape from which a transcript was made for the Commission and for Mr. Hen-ley's representative. In support of Mr. Henleys complaint, he submitted adeclaration stating that he was never informed that the conversation would be broadcast, and that if he had been so informed, be would not have continued to converse with the disc jockeys. A listener of Station WKRO(FM) also submitted a declaration testifying that she did not hear the disc jockeys inform Mr. Henley that the conversation was going to he broadcast, or was being taped. A review of the tape provided reveals that Mr. Henley was informed that the call was "on the air in Cincinnati."The disc jockey. however, did not so inform Mr. Henley until after the conversation had already begun and Mr.Henley's voice had already been recorded for broadcast. Section 73.1206 in pertinent part requires that beforebroadcasting a telephone conversation live, or recording itfor broadcast, a licensee must inform any party to the call of the licensee's intention either to record the conversationfor broadcast or to broadcast the call simultaneously withits occurrence. In reexamining this rule in 1988, the Com- mission stated, [Wie believe that it is reasonable and desirable to retain for individuals the right to answer the tele- phone without having their voice or statements trans- mitted to the public by a broadcast station in the absence of prior notice. For similar reasons, and in order to ensure effective compliance with respect to the broadcast of telephone conversations, we believe that individuals should continue to have the right to prior notice in cases where a telephone conversationis being recorded for later broadcast. Amendment of Section 1206; Broadcast of Telephone Con- versations, 3 FCC Rcd 5461, 5463 (1988). "Conversation" as used in the rule includes any word or words spokenduring the call. Heftel BrOadcasting-Contemporary, Inc., 52FCC 2d 1005, 1006 (1975). Thus, individuals have a right to such prior notice even if it involves recording andbroadcasting only one word. Based on the facts of this case, it appears thatWKRO(FM) has violated Section 73.1206 of the Commis- sion's Rules by recording and broadcasting the telephone call to Mr. Henley on April 26, 1995, without informinghim, before broadcasting it, of its intention to do so. Ac- cordingly, you are hereby admonished for this rule viola- tion, and are cautioned to use care to avoid such violationsin the future. This matter will be made part ofWKRQ(FM)'s permanent file. Sincerely, Norman Goldstein, Chief Complaints and Investigations Branch Enforcement Division Mass Media Bureau cc: Cara R. Burns, Esquire Charles R. Naftalin, Esquire 2906