CONCURRING SEPARATE STATEMENT OF COMMISSIONER HAROLD FURCHTGOTT-ROTH

I support today's forfeiture order, nonetheless, I write separately to question the continued utility and effectiveness of FCC rules addressing privacy issues, such as this one. 47 CFR § 73.1206 provides, in pertinent part, that "[b]efore recording a telephone conversation for broadcast, or broadcasting such a conversation simultaneously with its occurrence, a licensee shall inform any party to the call of the licensee's intention to broadcast the conversation." That section forms the basis of today's forfeiture. Rather than promulgated pursuant to some specific statutory directive, this provision was promulgated in 1970 based on our general statutory authority. ⁽¹⁾

I believe the Commission should re-examine the utility of rules -- like this one - that are not based on a specific statutory charge. Among the factors to be considered in assessing the efficacy of these rules are: the availability of remedies in other fora, the possibility of asymmetrical regulation, and the ability of the Commission to focus resources on its core mission. Here, it appears that private parties have extensive remedies under state law to cure any privacy violations. Relying on state law remedies would also place radio broadcasters on the same footing as other media outlets (i.e., newspapers) that are not subject to these privacy rules. Finally, elimination of the rule would allow the FCC to more aggressively focus its enforcement attention on those areas squarely and solely within the FCC's jurisdiction. Therefore I encourage my colleagues to take a closer look at these types of rules in upcoming biennial review proceedings. In the end, we may better serve the American people by doing fewer things, but doing them better.