On 28 January 2020, the FCC announced an Enforcement Order supporting its ambition to protect consumers from not knowing that a prerecorded broadcast program that seems live is prerecorded. The specific event was a call-in radio program called HealthLine Live, broadcast on Los Angles’ station KRLA. One listener noticed the so-called “live” broadcast on the air wasn’t live, and complained to the FCC because it was misleading.

Broadcasters are typically obsessed with perfection and disclaimers, but someone missed this gem. It could have as easily been a missing disclaimer graphic on a pre-recorded TV news broadcast. The implications of the FCC Order could be far reaching and beyond the scope of this report. The story here is that all it took to turn a simple oversight failure or dumb decision into a federal case with a five-figure fine was one complaint.

Engineers are the final content control filter. If you see a questionable legal anomaly such as this in an upcoming playlist, fix it before airtime, tell Traffic, and investigate why it was missing. Broadcasting is filled with traps. Resolve them before any become an expensive surprise like this one.

For your convenience, the following is an abridged and occasionally paraphrased version of the FCC ORDER. The official FCC document is DA/FCC #: DA-20-100, File #: EB-IHD-17-00025424.

ORDER

Adopted: January 28, 2020

Released: January 28, 2020

By the Chief, Enforcement Bureau:

1.The Federal Communications Commission (FCC) has a longstanding goal of protecting consumers by ensuring the public knows when certain program material is “live,” rather than taped, filmed, or recorded. Specifically, any taped, filmed, or recorded program material in which time is of special significance, or by which an affirmative attempt is made to create the impression that it is occurring simultaneously with the broadcast, must be identified by broadcast licensees as taped, filmed, or recorded. Doing otherwise may mislead the public. The Enforcement Bureau of the FCC has entered into a Consent Decree to resolve its investigation into whether Salem Media Group, Inc. (Salem) violated the FCC’s live broadcast rules by broadcasting prerecorded programming as “live” without announcing before the broadcast that the programming was prerecorded. To settle this matter, Salem admits that it broadcast prerecorded programming as “live” without previously announcing that the programming was actually prerecorded, it will pay a $50,000 civil penalty, and will implement a compliance plan to help ensure future compliance with the Commission’s rules.

2.After reviewing the terms of the Consent Decree and evaluating the facts before us, we find that the public interest would be served by adopting the Consent Decree and terminating the referenced investigation regarding Salem’s compliance with the live broadcast requirements of section 73.1208 of the Commission’s rules.

Several boilerplate details followed. Accordingly, it was ordered that the following Consent Decree is adopted and the matter is terminated.

CONSENT DECREE

By the Chief, Enforcement Bureau:

1.The Federal Communications Commission (FCC) has a longstanding goal of protecting consumers by ensuring that the public knows when certain program material is “live,” rather than taped, filmed, or recorded. Specifically, any taped, filmed, or recorded program material in which time is of special significance, or by which an affirmative attempt is made to create the impression that it is occurring simultaneously with the broadcast, must be identified by broadcast licensees as taped, filmed or recorded. Failing to do so could mislead the public that a show perceived as live is actually prerecorded.  The Enforcement Bureau of the FCC and Salem Media Group, Inc. (Salem), by their authorized representatives, hereby enter into this Consent Decree for the purpose of terminating the Enforcement Bureau’s investigation into whether certain of Salem’s broadcast radio stations violated section 73.1208 of the Commission’s rules (Rules) in connection with the broadcast of previously recorded program material. As set forth herein, to resolve this matter, Salem agrees to implement a compliance plan and pay a $50,000 civil penalty. This 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.

BACKGROUND

Under section 73.1208 of the Rules, licensees are required to disclose that material is prerecorded when “time is of special significance, or . . . [when] an affirmative attempt is made to create the impression that it (i.e., the program material) is occurring simultaneously with the broadcast.

The Commission received a Complaint in August 2017, alleging that KRLA broadcast the call-in show, HealthLine Live (Show), as “live” but it was actually prerecorded.

KRLA is licensed to New Inspiration, which is ultimately owned by Salem. On December 11, 2017, the Bureau issued an LOI to New Inspiration, seeking more information about the complained-of programming.

On January 24, 2018, New Inspiration responded to the LOI, providing a narrative statement, responsive documents, and recordings of the Show (LOI Response).

The Bureau thereafter issued additional inquiries to New Inspiration, to which New Inspiration responded. In its LOI Response, New Inspiration stated that the Show was taped or prerecorded; that in addition to KRLA, multiple other radio stations owned by Salem broadcast the Show and did not announce before the broadcast that the programming was taped or recorded; that at several times during the Show, the host suggested that he was taking calls from listeners and speaking with them live over the air; and that the title of the Show and the apparent interactive discussions with callers suggested to a listener that the Show was being presented live.

The Parties subsequently agreed to enter into the Consent Decree.