The $50,000 Question: Is It Live Or Is It Memorex?.. How To Avoid A "Salem"

The interwebs have been jumping, my phone has been ringing and my e-mail has been stuffing from many of you concerned about the recent Consent Decree that was reached between Salem Media and the FCC in respect to the disclosure of prerecorded programming.  Before this turns into a level of misunderstandings about the rule like is the case right now with "calls to action", let's attempt to give some clarity.  To understand how we got here, let's go back and look at this all began. 

Some have assumed that this started with the Mercury Theatre Of The Air production of "The War of The Worlds" by H.G. Wells narrated by Orson Welles on Halloween in 1938 and honestly, that's where I originally targeted some of my research on this towards, but actually, it happened sooner than that.  While I do not know whether this was a rule that existed in the pre-1934 Federal Radio Commission (predecessor to the FCC), the first references I was able to find was in the 1935 Yearbook from Broadcasting Magazine.  "Rule 176" (this was before the Code of Federal Regulations) specified:

A mechanical reproduction shall be announced as such except when its merely incidental, as for identification or background. The exact form of announcement is not prescribed but the language shall be clear and in terms reasonably used and understood.  The following are examples of statements sufficient for this purpose:
“This is a phonograph record.”
“This is a player-piano record.”
In all cases where electrical transcriptions made exclusively for broadcast purposes are so construed as to record a single continuous program upon more than one mechanical reproduction, rather than a recordation of the entire program upon a single mechanical reproduction, the announcement required shall be made at the commencement of each program and in no event less than every 15 minutes.  All other announcements required hereby shall immediately precede the use of each separate mechanical reproduction.

More insight into this rule can be found in the Commission's 1936 decision in World Broadcasting System, Inc. (3 F.C.C. 40).  It is aparent that the reason for this rule was to require radio stations to distinguish between music and other programming that was performed on phonograph records or transcription vs. the use of a live band/announcers.  This was at a time when many larger radio stations had their own in-house bands.  The request made by World was to clarify whether short one minute "spot programs" each needed to be disclosed as a mechanical recording.  This proceeding did also touch on the fact that more smaller stations were starting to get established with smaller budgets and therefore are unable to maintain a house band and were more dependent on transcribed programming and phonograph records.  The request for this decision was opposed by the American Federation of Musicians (the musicians union) but was supported by the National Association of Broadcasters.  The FCC would reach the following conclusions:

• That some regulation in the nature of the existing Rule 176 is necessary to protect the listening public from deception and the artists and producers from unreasonable injury;
• That at the same time, the economic situation from the station’s standpoint (which involves the furnishing of a free service to the public) must be recognized;
• That in all cases, save a few as specifically set out in the rule as amended, the use of mechanical reproductions of any duration shall be announced in accordance with reasonable standards; and
• That requirements for the announcement of mechanical reproductions is necessary and in the public interest.

In other words, is it live or was it prerecorded?  The FCC would make changes to Rule 176 that would clarify that mechanical recordings of less than 5 minutes only need to be disclosed at the beginning of the recording while recordings of more than 5 minutes must be disclosed at the beginning and the end as well as at 15 minute intervals with exceptions to long speeches, plays, operas and symphonies.  

By 1942, stations were only required to disclose once every half hour whether mechanical recordings would be used.  By 1956, the rules would be amended to state that the only programming that needs to be identified as pre-recorded is any program "in which the element of time is of special significance and presentation of which would create, either intentionally or unintentionally, the impression or belief on the part of the listening audience that the event or program being broadcast is in fact occurring simultaneously with the broadcast” (14 R.R. 1541 amending 47 C.F.R. §§ 3.118 (AM rules) & 3.228 (FM rules)).

The modern language, which can be found in §73.1208 reads:

(a) 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, shall be announced at the beginning as taped, filmed or recorded. The language of the announcement shall be clear and in terms commonly understood by the public. For television stations, the announcement may be made visually or aurally.

(b) Taped, filmed, or recorded announcements which are of a commercial, promotional or public service nature need not be identified as taped, filmed or recorded.

The original “mechanical recording” rule seems to have its roots in the influence of the musicians and actors unions, which at the time, had a powerful presence at many radio stations across the country.  As the days of the radio station band would dissipate and recorded music was more prevalent, the focus turned into what would seem to be some form of a consumer protection rule.  The rule as we know it now which originated in 1956 was intended to prevent radio stations from misleading the public when an event is being broadcast under the impression that it is “live” and it is indeed not.

Over the years, you would see some references to the recording, especially 1970s situation comedies that had a live studio audience or laugh track.  Those of us old enough remember on CBS, “All In The Family is recorded on tape before a live television audience.”.

So with all that said, what happened at Salem?  The answer is very simple, they ran a program with the title “HealthLine Live”, but the presentations under controversy were previously recorded programs.  The key word here is “Live”.  It’s in the title of the show and to the average Joe or Jane Consumer who does not know much about how radio syndication works would think the show was really live.  Those of us who have lived on the west coast will know that when NBC airs “Saturday Night Live”, they will always run an on-screen disclosure for the west coast that the “program was pre-recorded for this time zone”.  In response to the FCC’s Letter of Inquiry, Salem admitted that the program was indeed pre-recorded and that the program aired on multiple Salem owned and operated stations. As a part of the Consent Decree, Salem will pay a $50,000 civil penalty.  It could have been higher.

So, how would this affect your station?   As long as you are not running programming that claims to be live when it was originally recorded, then you will be fine.  If you are replaying one of your DJ or news shows, you may want to put the disclosure at the top of the hour on the recorded replay.  If you are running national programming that you feel may give the impression that it may be live, it may be a good idea to run the disclaimer.  For Pacifica stations carrying “Democracy Now!” and you are not getting the 8AM ET live feed from the satellite or stream, then you should play it safe and put the message in that it was pre-recorded. 

There was also concerns by stations regarding voice tracking and how that fits in.  As long as the voice tracking does not give a direct impression that the talent is currently live at the microphone, then you will be OK.

So, here’s the tips to avoid a run-in with the FCC:

• Avoid putting the word “live” into a program name if you know that program will be broadcast later or if you plan to syndicate the program through Pacifica Audioport, A-Infos Radio Project, PRX or any other distribution method.
• If you MUST have a pre-recorded show with “live” in the name, you MUST run a disclaimer.
• Pre-recorded news actuality shows that may seem like live spot news (such as Democracy Now! not played at 8AM ET) should have the disclaimer just to play it safe.
• Play it safe and always run the disclosure message on any repeat of a phone-in show.  Not only does it meet the rules, it will reduce the number of frustrated listeners trying to call in live.  If your phone system has the capability, during hours when there is no live programming, have the calls go into a recording to advise the calling listener that the show on the air is pre-recorded and that calls are not being taken at this time.
• If you know that there is content (or a show title) that would suggest that the program is live but is actually pre-recorded, run the short disclosure right between the top of the hour and the start of the show.  (“The following program was pre-recorded.”)
• Never ever record voice tracks that suggest that the program is live. A voice tracked program is not a live program.
• Avoid the term “live and local” unless you can truly live up to that.
• On remotes, if you are recording for later playback (i.e. after the end of a song or stop-set), the remote talent should never say that they are “currently live”, even if it looks good in front of a live audience. 

This proceeding really came out of left field and definitely dropped the jaws of a few of us policy watchers including myself.   Whether the rule is needed in this day and age is debatable and until the rule is ever eliminated or otherwise changed, stations must follow it, regardless of how archaic it is.

Shout out to AmericanRadioHistory.com for some of the material used in the research on this subject.

Michelle Bradley - REC Networks - 202-621-2355

This material did not originate from an attorney and therefore can't be construed as legal advice.  By using this advice, you are releasing REC Networks and Michelle Bradley of all liability in connection with any consequential damages in connection with the use of this advice.  If you need true legal advice, please contact an attorney.