Can someone consent on behalf of someone else for a call-in radio show?

Question

There's a morning radio show that airs here (and I'm sure there are plenty others that do something similar) that does something like this:

• Girlfriend/wife suspects boyfriend/husband is cheating
• While girlfriend is secretly listening, the radio show hosts call boyfriend pretending to offer a free romantic gift
• Boyfriend says to send gift to someone other than his girlfriend
• Girlfriend catches boyfriend, lots of on-air drama, etc

What I don't get is right before they call the boyfriend to trap him they ask the girlfriend something like "do we have your consent to put your boyfriend on the radio?"

Why is that? If this is about recording a phone call then wouldn't they already have permission to record everything once she consents (at least in one party consent states)? If something more is needed, what legal right does she have to consent on his behalf?

Answer 1

Don't believe everything you hear on the radio or see on TV. That radio show is probably staged with actors; read https://didyouknowfacts.com/former-dj-radio-business-fake/ and the linked AMA on Reddit.

If it happens that radio show is not entirely acted out, I'm sure the radio station has their legal ducks in a row. The station as a business and the DJ as an individual would have some legal exposure to "out" or reveal affairs on the air, so if the show is not a total act, all callers will have signed or agreed to verbal releases which state that all participants are recorded and the outcomes may be unpredictable, the station and the DJ are not liable, etc. One or two party consent for recording and broadcasting will be respected; if they weren't, the station would be sued out of existence.

The idea that they ask for consent on the air and act like that is required is simply more of the act. 99% of the listeners have no legal training, and the magic word "consent" makes the show sound more real and lawful. As above, there could be releases agreed to on the phone before the call is switch to broadcast, i.e. "do you agree to let us broadcast you and are you aware of this and any ramifications?" and that would be recorded by the station for their legal protection. But a good lawyer could get around that in court.

See also Is it legal for police to travel with a film crew and publicize arrest footage without consent? and also Is 'You the Jury' TV show really legal?

Answer 2

Specifically in the case of recording phone calls for broadcast: No, all parties must consent before any recording can take place.

See this FCC rule (emphasis mine):

The Commission's rule regarding broadcast of telephone conversations is set forth at Section 73.1206 of the Commission's rules, 47 C.F.R. § 73.1206.

Pursuant to this rule, before 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, except where such party is aware, or may be presumed to be aware from the circumstances of the conversation that it is being or likely will be broadcast. Such awareness is presumed to exist only when the other party to the call is associated with the station (such as an employee or part-time reporter), or where the other party originates the call and it is obvious that it is in connection with a program in which the station customarily broadcasts telephone conversations.

Since this consent is required before recording, and can't be granted after the fact, and assuming that radio stations actually cover themselves legally (rather than rely on ignorance of the law), there are no real "surprise" calls. At best, the content of the call will be a surprise, but the fact that it is for radio broadcast won't be.