CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

In early December a licensee in that situation (represented by our colleague, Jim Riley) sought a waiver of this requirement. Its last renewal was granted in 1997, and it argued that uploading a raft of issues/programs lists dating from 1997-2005 would be extremely burdensome and would not provide any benefit to the public. That was particularly so because no member of the public had objected to its timely-filed-but-still-not-acted-on 2005 renewal application (which covered the 1997-2005 period). 

The Bureau agreed, noting that its own policy is to “review each renewal application individually, and not in combination with prior pending renewal requests”. Because of that, pre-2005 issues/programs lists would ordinarily be irrelevant – and even possibly confusing to the public, according to the Bureau – if they were to be included in the online public file. (The Bureau didn’t address why such lists might be less confusing in a station’s locally-maintained paper public file.) Accordingly, the Bureau has agreed to a narrow waiver of the uploading requirement for both commercial and noncommercial TV stations.

Specifically, if a station’s most recent license renewal application (filed between 2004-2007) remains pending, that station does not have to upload issues/programs lists from prior pending renewal terms to the FCC’s online system, provided that:

all issues/programs lists covering the prior license term (i.e., the lists that aren't being uploaded to the online system) are still available to the public in the paper version of the public inspection file maintained at the station itself; and

the station’s most recent license renewal application was not opposed by any member of the public; and

action on the station’s most recent license renewal application was not deferred by the Commission as a result of “enforcement matters” related to “the station’s obligation to air programming responsive to the needs and interests of its community or the recordkeeping related thereto”.

Note that this waiver does not apply to issues/programs lists covering programming aired during the current license term, i.e., the license term which began in 2004-2007 (depending on the state in which the station is located). In other words, your online public file must still include issues/programs lists covering the last eight years or so.

Everything in the file, EXCEPT: (a) political broadcasting files created prior to August 2, 2012 and (b) letters/emails from the public. 

(First Important Note: commercial stations not affiliated with one of the top four national networks in any of the Top 50 TV DMAs don’t have to upload any political files to the online site until July 1, 2014, although they may if they want to. Top 50 market network affiliates, on the other hand, have been required to upload all political documents created on or after August 2, 2012.)

(Second Important Note: The Commission has made clear that communications from the public about the station that are posted on social media are not required to be placed in the paper public file, much less the online public file.)

Of course, the FCC has taken care of a large chunk of the uploading job by automatically importing into the online file all applications and reports filed electronically through other FCC systems, including applications filed through CDBS and Children’s TV Reports. So as you sift through your paper public file, don’t worry about having to manually upload those types of materials (although you should probably double check your online file to confirm that all the applications/reports that are supposed to be in the online file are, in fact, there).

While the contents of station files will vary from station to station, for most stations it’s likely that the biggest uploading chores will involve: (a) quarterly issues/programs lists and (b) contracts and other ownership/organization-related materials. We already covered the process of uploading documents – including particularly issues/programs lists – last September. Check back there for general tips on accessing and uploading to your online public file. Of course, back then we were primarily concerned with walking our readers through the process of uploading their October, 2012 issues/programs list, i.e., the first new document that all TV licensees had to upload. Now’s the time to go back through all the old issues/programs lists that have accumulated since your last renewal grant (yes, that will mean several years’ worth of lists) and upload those to the site.

And it’s also the time to tackle contracts and ownership-related materials, if you haven’t already done so.

First, what materials are we talking about? 

The rules regarding the public availability of contracts and ownership/organization documents are spread over several different sections of the FCC’s regs. While those rules do not necessarily provide completely consistent direction, the bottom line, as best we can figure, is the following.

The public inspection file rules (Section 73.3526 for commercial stations, Section 73.3527 for noncommercial stations) require TV station owners to upload copies of the following agreements to the online file: 

• Citizen agreements, which are written agreements between the licensee and one or more citizens or citizen groups entered into primarily for noncommercial purposes. These generally involve “goals or proposed practices directly or indirectly affecting station operations in the public interest, in areas such as – but not limited to – programming and employment”.
• Time brokerage agreements involving brokerage of the licensee’s station, and agreements in which the licensee is brokering another station, whether in the same market or different markets.
• Joint Sales Agreements involving joint sale of advertising time on the station and on one or more other stations, regardless of whether or not the stations are in the same market.

The FCC has created separate folders for each of these types of agreements. You can find links to access those folders in the left-hand column of the public file upload screen.

But over and above such items, your paper public file may include a number of other contracts or ownership/organizational documents. That’s because the public file rules require that the file contain “ownership reports and related materials”. The “related materials” referred to – which are required to be filed with the Commission pursuant to Sections 73.3613 and 73.3615 – include a wide range of items, including:

• Contracts, instruments or documents relating to the ownership or control of the licensee or its stock, or relating to changes in the ownership or control of the licensee. For example: articles of incorporation, bylaws, stock voting agreements, options, mortgages or loan agreements that limit the licensee’s freedom to operate as it pleases. (These materials must be in the file not only for the TV licensee itself, but also for entities with majority interests in or otherwise exercising control in fact over the licensee.)
• Management or consultant agreements with persons other than officers, directors or regular employees of the licensee.
• All agreements with anyone that provide for sharing of both profits and losses.
• Time Brokerage/Local Marketing Agreements where the licensee of the station is brokering time on another station in the same market and more than 15% of the time on the other station is provided by that licensee.
• Network affiliation agreements with a national network (i.e.,a network with 15 or more hours per week delivered to at least 25 affiliates in 10 or more states).

So don’t be surprised if you find such materials in your paper public file. The good news is that the rules provide that full copies of those documents need not be placed in the online file (or the paper file, for that matter) as long as an up-to-date list of such materials IS included in the file. If your most recent ownership report (FCC Form 323 or Form 323-E) contains such a listing (as it should in most instances), you should be off the hook for uploading any of these materials. 

And even if the listing in your most recent ownership report is not up-to-date – for instance, you may have entered into a reportable contract since your last ownership report was filed – you can upload a separate, current list of documents (being sure to include not only the parties to any listed agreement, but also the execution and expiration dates as well). 

Where to put such a list?  The answer to that question is not obvious, but not to worry – here’s the answer.

First, sign onto your station’s online public file upload screen. Once you’re there, click on the “Ownership Reports” link in the left-hand column (marked in red in the illustration below), and when the “Ownership Reports” page comes up, click on the “Contracts and Additional Documents” tab (marked in green below). Then click on the orange “Upload Documents” button and follow the standard upload routine. (If you want to upload full copies of any documents – rather than a mere listing of them – and you can’t find any other appropriate tab for them in the left column of the upload screen, you can put them here.)

Note that, even if you choose to upload a list of documents, rather than the documents themselves, you are still required to provide copies of any of the listed documents to anyone requesting them. Such copies must be provided within seven days of the request.

Careful readers may have observed that the various categories of reportable documents overlap in some respects, but not necessarily consistently. For example, one rule section indicates that time brokerage agreements can merely be listed, while another section indicates that full copies of such agreements must be uploaded. Similarly, TV joint sales agreements do not need to be listed in ownership reports (or provided on paper to the FCC’s headquarters), but full copies of such agreements must be uploaded to the online public file system.

If an agreement isn’t included in the categories we’ve listed above, you don’t have to upload it to your station’s public inspection file. The FCC has helpfully listed a few documents that do NOT need to be kept in the file: Trust agreements (unless the FCC asks for them); employment agreements with stations managers or sales personnel, professional services agreements with attorneys, consultants or engineers, and contracts with performer, sales reps, and labor unions.

Additionally, while agreements for the sale of assets or transfer of control as exhibits to license assignment or transfer of control applications are clearly reportable, they normally don’t need to be uploaded separately. That’s because complete copies of such documents are usually filed as part of the Form 314, 315 and 316 seeking FCC consent to the transaction reflected in the underlying agreement. If the form containing a copy of the agreement has been filed through CDBS, then the agreement itself is already contained in the online public file.

The rules specifically allow stations to redact confidential or proprietary information from Time Brokerage Agreements and Joint Sales Agreements uploaded to the public file, with the caveat that the redacted information must be disclosed to the FCC on the FCC’s request.

Now that you’ve got the lay of the land, it’s time to get cracking. All TV licensee must have their complete public inspection files uploaded to the FCC’s online site by February 4, 2013. Again, the upload process will require each station to inventory its existing paper file to determine what needs to be uploaded. That process may also reveal that some documents that should be in the file are missing. It’s wise to allow yourself some extra time, just in case the inventory and upload processes raise questions that need to be resolved. 

The requirement that TV public files be posted online substantially increases the need for diligence in the maintenance of those files, which will now be accessible 24 hours a day to every gadfly, critic, community activist and competitor. In the 21st Century online world, a station’s file can be visited by anyone at any time – and those visits can’t be monitored like the rare visits to the dusty old paper filing system used to be. That being the case, it’s a good idea to take the time to be sure that the online public file is complete and that, as much as possible, its contents reflect favorably on the station’s operation.

The specifics, such as they are, are set out in the Commission’s local public inspection file rules (Section 73.3526 for commercial licensees, 73.3527 for noncomm’s). Here’s what the rules require TV licensees to place in their public inspection files:

[E]very three months a list of programs that have provided the station's most significant treatment of community issues during the preceding three month period. . . .The list shall include a brief narrative describing what issues were given significant treatment and the programming that provided this treatment. The description of the programs shall include, but shall not be limited to, the time, date, duration, and title of each program in which the issue was treated.

So your list must include, at a minimum, a “brief narrative” describing (a) the “issues” to which the station gave “significant treatment” during the preceding quarter and (b) the programming that “provided this treatment”. The description of the programming must include, at a minimum, certain nitty-gritty specifics about the broadcast of the programming – time, date, duration and title.

Note that, according to the rules, the issues/programs list need not include all of a station’s issue-related programming, but rather just the “programs that have provided the station's most significant treatment of community issues.” What does any of that mean – “significant treatment”, “community issues”, “programs”? That’s generally your call to make as licensee, but be prepared to be second-guessed by critics who may have other ideas about what you coulda/woulda/shoulda been doing. 

While the rule refers to “programs”, it does not prohibit inclusion of PSA’s which, in the eyes of some, may not amount to full-fledged “programs”. If a station has devoted a considerable number of PSA’s to one or more “community issues”, it would probably be well-advised to include reference to those PSA’s in the list. Historically, the Commission has suggested that a station may not rely solely on PSA’s to meet its supposed obligation to address local issues, but that doesn’t mean that a licensee with a substantial PSA effort cannot and should not claim credit for that effort.

Along the same lines, the term “programs” would not necessarily bar you from relying on news coverage of particular issues, including election campaign coverage.

The rules do not mandate any particular format for the presentation of these data. You can use lists or narratives or collections of documents or any other mechanism you like, as long as the end result contains the specified information. How long should the list be? That, too, is your call – but bear in mind that the list is supposed to reflect the programming through which the station devoted the “most significant treatment” to community issues. The shorter the list, the easier it will be for critics to suggest that the station hasn’t really been serious about “treating” community issues, whatever that means.

Once you have your list compiled, what do you do with it?                             

First, you will need to have the list in some digital format. If you simply type it up using Microsoft Word, you’d have it in as a .DOC document. If your list includes copies of programming records prepared in the course of production and broadcast, those might need to be scanned into .PDF documents, or possibly assembled into a single .PDF item. Some licensees may prefer using an Excel spreadsheet (i.e., .XLS) approach. The FCC’s system is supposedly designed to accept documents in any of the following file formats: .DOC, .DOCX, .HTM, .HTML, .PDF, .PPT, .PPTX, .RTF, .TXT, .XLS or .XLSX. Whatever format you use, make sure that you can locate the component file(s) on your local computer drive(s) easily. 

According to the FAQ page at the FCC’s online public file site,

[s]tations must upload electronic documents in their existing or native format to the extent feasible. For example, if a required document already exists in a searchable format - such as the Microsoft Word .doc format or a non-copy protected text-searchable .pdf format for text filings, or native formats such as spreadsheets in Microsoft .xml format for non-text filings - broadcasters are expected to upload the filing in that format unless it is technically unable to do so.

It’s hard to tell exactly what that means, and it’s also hard to say that the FCC is in a position to enforce whatever it might mean – since the regulatory impact of an FAQ presumably lacks at least some to the clout of, like, an actual rule. Still, it appears that the Commission expects uploaded documents to be “in a searchable format”.

Note that the FCC has not mandated any particular file-naming convention. However, it’s always good to name your files in a way that allows the reader to figure out easily what’s in the file. (For example: [CALL SIGN].Issues-Programs List.[Quarter].[Year] should do the trick.)

Once you’ve got the list ready to upload, access the station’s online public records file. (If you’re still a bit sketchy on that process, check out our post here.) When you have successfully logged in, you’ll see a screen that looks like this:

In the menu options running down the left-side of the screen, click on “Issues/Programs Lists”. (We’ve helpfully highlighted it in red in the graphic above.) That should take you to a screen that looks like this:

Click on the red/orange-ish “Upload Documents” button in the middle of the screen. That should take you to this screen:

Click on the green button labeled “+ Add files . . .” in the middle of the screen. The system will then allow you to browse through your local computer drives to locate the file(s) that will comprise your quarterly issues/programs list. Once you have located those files in your local drives, you can simply drag and drop them into the page on the FCC website. 

We understand that the FCC’s system will then take a couple of minutes to process your upload. Exactly what that processing entails is not entirely clear, but don’t be surprised if the uploaded file does not instantaneously show up in your online public file. Still, it would be prudent to check back in on your station’s file – from either the public or non-public side – within a couple of hours to confirm that the upload was completed and that the file(s) you meant to upload did in fact get successfully uploaded.

Good luck.

A couple of miscellaneous observations.

This is the first deadline that requires ALL TV licensees to upload a particular item by a particular date. There will be others down the line, but this is the first time that the Commission’s online public system will be tested with an industry-wide in-rush of uploads. Because of that, some hiccups in the system may occur. Be patient.

Also, note that, on the FCC’s online public file homepage, there is a constantly updated list of materials that have been uploaded to the system. When there is lots of upload activity going on, any particular station’s upload will likely appear on that list for just a couple of minutes. When activity is lower, uploads may remain on the list for a couple of days. Our guess is that, on October 10, the amount of time any station’s upload will stay visible on the FCC’s online list will be minimal, if that makes a difference to you.

Finally, let’s not lose sight of the oddity of the issues/programs list. While the rules do indeed require the quarterly preparation of those lists, the rules do not require that stations in fact air programs that “treat”, significantly or otherwise, “community issues”. While the Commission has historically asserted that some such obligation exists, in fact you will look long and hard – and unsuccessfully – to find any such requirement in the Commission’s rules or in the Communications Act. (Indeed, a strong argument can be made that the Commission could not in any event impose such a programming requirement.)

In this context, the issues/programs list may be seen as a regrettable effort by the Commission to indirectly regulate that which it does not – and arguably cannot – regulate directly, i.e., broadcast program content. Of course, the vast majority of broadcasters do provide plenty of important and useful programming devoted to local, regional and national issues, even though they are not technically required to do. And as long as they’re doing that, stations should be sure to use their issues/programs lists to highlight their efforts.

The FCC has thoughtfully imposed a two-tiered system that you’ve got to negotiate before you can access the business end of your online public file. Although at first blush this might seem a bit cumbersome, it really is a thoughtful approach designed particularly with the multi-station owner in mind. 

The goal is to allow licensees to make individual stations’ passcodes available to relevant station personnel without forcing the licensee to make generally public that super-secret combination, the licensee’s FRN and related password. So the licensee gets to keep under close control its master key – i.e., the FRN combo – that allows it to determine what each station’s passcode is; the licensee can then distribute station passcode information to relevant staff at each station for their particular use.  

Let’s assume that you’re a licensee with two TV stations in different communities, and you want to get both stations working on their respective public files. For a station to get into its own public file for uploading purposes, it will need to know (a) the station’s FCC Facility ID Number (FIN) and (b) the station’s online public file passcode. You, as the licensee, can get them that information.

How?

First, go to https://stations.fcc.gov/. That’s the home page for the TV online public file system. It looks like this:

If you want to see what your current online public file looks like to the public-at-large, insert your call sign in the "Find A Station" box at the bottom and hit "enter".

If, instead, you want to get into the non-public, "back-end" of your file in order to upload new stuff, click on the “sign in” button in the upper right corner.  (As an alternative, you can get there directly by clicking on this link.)  That takes you by default to the “Facility Sign In” page, which looks like this:

If you already had your stations’ passcodes, you would proceed from this page to each station’s public file simply by inserting the correct FIN and pass. But we’re assuming that you’re starting from scratch and haven’t yet figured out the passcodes.

No problem. Click on the very last live link on this page – titled “Sign in using FRN and password”. That takes you to the “FRN Sign In” page, which looks like this:

(Note that you can get to the FRN Sign In page directly at this link.)  Enter the licensee’s FRN – that would be the FRN associated with the stations whose files are to be uploaded – and related password. Click on “Sign In” and the next thing you should be seeing is the “My Stations” screen that looks something like this (we've highlighted with descriptive boxes the two line items that you'll be needing in particular):

We have smudged out the specific details of the particular licensee’s two stations whose information we used to access these screens for demonstration purposes. Yours should clearly identify each station by call sign, FIN, community and channel. (It may also include a station logo.) The last datum listed for each station is that station’s passcode.

Copy and paste each station’s passcode into a separate document for future reference. Yes, yes, Luddites may choose to transcribe them by pencil and paper, the old-fashioned way, but be careful – each passcode is a combination of letters and digits, and it may not be all that easy to tell, say, a zero (0) from a capital O, or a lower case L from Arabic numeral 1. Copying and pasting avoids any misreadings.

With the passcodes, you’re now ready to go back to the Facility Sign In page and get started. We’ll pick up the story in the next post in this series.

A couple of observations about the passcode system. 

As noted above, the FCC has designed the system, with input from multi-station licensees (among others), to provide licensees with a reasonable measure of security. Presumably, at the station level there will be multiple staffers – including management-level and, possibly, non-management-level folks – who you’ll be counting on to get necessary materials uploaded. Obviously, each of them will need to have relatively easy access to the necessary passcode.

But the need may arise to change a station’s passcode – for example, an employee familiar with the code leaves the station’s employ, and you want to make sure that his/her access to the file is immediately terminated. All the licensee need do in that case is get back to the “FRN Sign In” page, from there access the “My Stations” page, find the station whose passcode you want to change, and click on the “Generate New” button at the bottom of the station’s information list. The FCC’s system will immediately give you a new passcode for that station. Copy/paste and distribute that new code to employees who still should have access to the file, and you’re all set.

The Commission’s system does not permit licensees to designate their own personalized passcodes. That’s probably for the best. The apparently random passcodes generated by the FCC’s system are likely far more secure than whatever a licensee might come up with. And in this case, security should be an overriding concern. 

Under the old non-online public file system, anyone trying to mess with the contents of a station’s file would have had to deal with physical barriers (doors, locks, file cabinets, etc.) and personal barriers (receptionists, other personnel) before he/she had any hope of actually getting to the file. Under the new online system, someone bent on mischief needs only two pieces of information – the station’s FIN and its passcode – to get into the file from anywhere, any time of the day or night. The FIN is easily obtainable (through CDBS and elsewhere). So heavying-up on the security of the passcode is obviously the desirable, if not necessarily the most convenient, approach.

Next installment: the Issues/Programs List.

Bear in mind, the 80-minute delay in the start of yesterday’s session was caused by the apparent inability of the FCC – that would be (Irony Alert!) the Federal Communications Commission – to get its phone bridge to work. That alone doesn’t inspire confidence. And, according to a message typed on the online video feed early during the delay period, that inability in turn arose because more than 700 people were logged onto the phone bridge. 

Um, what did the FCC expect? Its new public file system is going to be a necessary part of the lives of thousands of TV stations starting tomorrow, and yesterday afternoon’s demonstration was for most of those stations the first time that they would have a chance to check out the system. (Yes, I know that there was a demonstration on July 17 – but the online feed of that show reportedly didn’t provide adequate access. And yes, I know that there was a second demonstration on Monday morning, July 30, at 9:00 – but since that demo wasn’t announced until late on the preceding Friday afternoon, the Commission couldn’t reasonably have expected a huge turnout. That left yesterday’s show, so the FCC could and should have expected a throng.)

Additionally, it was apparent during the demonstration that the system is still a work-in-progress in a number of respects. Some functions aren’t yet working, some aren’t working with pre-Version 7 versions of Internet Explorer, etc. While this is to be expected in any complex system like this one, you’d think that, before the Commission forces thousands of broadcast stations to use the system, the Commission would have tried to work out more of the bugs.

And one more cause for hesitation: while the Commission folks indicated that help would be available online and by phone once the system kicks in, it looks like their expectation is that most users will familiarize themselves with the system by reading through an extensive – and apparently to-be-regularly-updated – FAQ page. For sure, FAQ’s are a well-established feature of the Internet environment, but it’s not clear that, as a federal administrative agency imposing affirmative obligations on thousands of regulatees, the FCC can appropriately rely on something as informal as an FAQ page to instruct those regulatees how to meet those obligations.

So the preliminary bottom line is: the system looks very sharp (“neato” was one oddly anachronistic descriptive reportedly submitted by an attendee of yesterday’s demo) and may prove user-friendly. Certainly it appears to have been designed in large measure with the uploading station in mind. That’s a great comfort (particularly for those of us who have wrestled with CDBS for years).

But this is a lot like buying a car. The new model always looks great in the ads and great in the showroom. It probably also feels great to drive when you take it for a test spin under the watchful eye of the dealer in the passenger seat. But the real questions don’t usually pop up until you’ve brought it home and driven it in all kinds of conditions -- and your 16-year-old student driver and your 85-year-old parent have also tried to drive it (because, bear in mind, most licensees will likely be relying on station staff to handle most, if not all, uploading to the system).

So rather than give the FCC’s new system any final thumbs up (or thumbs down), let’s reserve judgment until we’ve all had a chance to use it in everyday, real-world situations. 

For those of you who have not yet sat in on one of the FCC’s demonstrations, we strongly recommend that you take the time to do so at Noon (ET) today, August 1.

The public file system allows stations to use Dropbox and other similar non-FCC online cloud storage systems to gather documents before uploading them to the FCC’s system. If you want to use Dropbox, you will have to (a) create a separate Dropbox folder and then (b) download an app that allows exchange of documents between the FCC and that one Dropbox folder.  But watch your step – the drag and drop function from your computer or Dropbox onto the FCC’s website works well with many browsers but apparently has some problems (which the FCC is working to fix) with the most popular browser, Internet Explorer, especially versions 7 and older.

To upload materials to a station’s online file, stations will use the URL http://stationaccess.fcc.gov.  (We just tried and it’s not an active site as of July 30, 2012.)  To review a station’s online public file, members of the public will go to http://public-inspection-file.stations.fcc.gov.  (Also not yet active, as far as we can tell.)

Most of us are used to converting documents to .PDF format for submission to the FCC – mainly because the CDBS electronic filing system accepts only .PDFs and the ECFS system for filing rulemaking comments converts incoming documents to .PDF. The public file upload process, however, is different. Documents headed for the online public file must be uploaded in their native format, whatever it may be (e.g., MS-Word, Excel, WordPerfect).  FCC will take care of converting to word-searchable .PDF format.  If the document to be uploaded was initially created in .PDF, it may be uploaded that way – but it should be in searchable .PDFform. (Cautionary note: many .PDF writer programs do not create searchable .PDFs as a default. Check you’re your IT folks if you have any questions on this front.)

The station profile on the FCC’s website now includes the main studio address.  Remember that a main studio must as a general rule be staffed by at least two employees (one of them management-level) during the normal 40-hour business week. With the main studio address posted on the Internet, FCC inspectors (and others) will have no problem locating the studio for inspection purposes.

The Commission is advising that stations should probably keep back-ups of the documents they upload, just in case.  But stations do not have to maintain copies of uploaded materials at the station for the public to inspect – once the materials have been uploaded to the FCC’s online system, the station’s obligation to make those materials available to the public has been satisfied.  But remember that an on-site public file is still required for letters/communications from the general public for all TV/Class A stations, old political file documents for all TV/Class A stations, and newly-created political file documents for all TV/Class A stations except for affiliates of the Top Four networks in the Top 50 markets. Stations may voluntarily upload political file documents to reduce their on-site paper obligations. However, letters/communications from the public should not be uploaded because of privacy concerns (including especially the provisions of the Children’s Online Privacy Protection Act (COPPA)).

The FCC is not requiring stations to provide a computer terminal to allow the public to go to the FCC’s website.  Staff at today’s session recommended that stations post the URL of the FCC’s public file website on their own station websites.  Whether or not that recommendation can turn into a formal requirement isn’t clear (since it may not have been specifically addressed in the rulemaking proceeding leading up to the adoption of the online system).  But it is clear that the FCC wouldn’t object if those URLs were to get included on stations’ websites.

Important final advisory: The online public file system is still on track to go live on Wednesday, August 1, the day before the online filing requirement becomes effective.

The Commission is planning to provide another demonstration of the system tomorrow, July 31 at 4:00 p.m.  Given the additional information which has come to light since the July 17 demonstration, we’d treat tomorrow’s demonstration as Must See.   This is not conventional webinar. A special platform is used to display a computer desktop that is manipulated by the FCC. Audio is available only by telephone. Access information is available at www.fcc.gov/events/demonstrations-online-public-inspection-file-interface.  The FCC warns that “[p]arties must join the call before the scheduled start time.” Last-minute registration and dial-in were possible today, but there were only 190 participants on the line (possibly because of the late notice provided by the Commission). We don’t know when or if the capacity of the FCC’s telephone bridge might be filled.

Media Bureau waives political file uploading requirement

Even before the new online public file requirement could take effect, it’s been waived!  In a Memorandum Opinion and Order, the Bureau released three days before the effective date, the Bureau has let Station WHAG-TV, Hagerstown, Maryland off the hook as far as uploading any new political file materials goes.

As diligent readers will recall, the online public file rule requires that Top Four networks affiliates in the Top 50 markets must begin uploading all newly-created political materials starting August 2.  WHAG-TV is an NBC affiliate in the Washington, D.C. DMA, which is Market No. 8.  So WHAG-TV was directly in the crosshairs of the rule.

Hold on there, said the station.  It’s not the primary NBC affiliate in the DC market.  That distinction goes to WRC-TV, the NBC O&O in Washington.  In fact, WHAG-TV’s assignment to the DC market is really a matter of “happenstance”.  That’s because, back when Arbitron designated TV markets, Hagerstown was its own market and, trust us, it wasn’t in the Top 50.  (Actually, it was Market 192.)  When Arbitron got out of the TV market designation business around 1996 and the FCC shifted to Nielsen-prepared DMA rankings, Hagerstown got lumped into the DC market and so, too, did WHAG-TV.

But even when that happened, WHAG-TV didn’t embrace its new DMA home.  In 1998 it argued successfully that it shouldn’t be classified as being in any of the Top 100 markets for regulatory fee purposes – and the Commission agreed, possibly on the basis of the Television and Cable Factbook 1997.  The Factbook indicated that the number of DMA television households served by WHAG was “equivalent [to] a remaining market station.”  (WHAG also helpfully observed that, where each of the TV stations licensed to Washington, D.C. proper serve over 2.3 million households, WHAG serves less than a quarter of that number in the DC DMA.)

The Bureau agreed that WHAG really does serve a smaller market and that holding it to the requirements for Big Market stations would run contrary to the fact that the FCC had decided to exempt small market stations from the initial political file upload chore.  Accordingly, waiver granted, and the folks at WHAG are doubtless breathing a bit easier.  (But the waiver applies only to the obligation to upload newly-created political file materials; the station will still be on the hook to upload other, non-political materials.)

They’re scheduled for Monday, July 30 at 9:00 a.m. and Tuesday, July 31 at 4:00 p.m. (We’re guessing that the times are ET, but the notice doesn’t actually specify that.) The notice provides information for accessing the show – but be alert: the audio for the demos is by teleconference, and the notice emphatically instructs that “[p]arties must join the call before the scheduled start time.”

Our colleague Peter Tannenwald attended the July17 demonstration and reported favorably about the FCC’s system. Since it appears that that system is indeed going to be with us for a while, it’s a good idea to get as familiar as possible with it. The online demos are probably a good place to start. And while the new rule applies only to TV stations for now, the smart money figures that it’s just a matter of time before the FCC expands it to include radio stations as well. With that in mind, radio licensees might want to take advantage of this opportunity to see what is likely in store for them.

One final observation. The timing of the notice concerning the demonstrations is puzzling. Why issue this late on a Friday afternoon in order to announce a demonstration occurring at 9:00 a.m. the following Monday? We happened to receive the notice because we subscribe to a service that delivers FCC releases as they get issued. But we suspect that the vast majority of broadcasters don’t enjoy that luxury. And the late release of the notice assured that it would not be included in the Friday afternoon editions of most trade journals. So while it’s nice that the FCC is apparently trying to introduce us all to its spiffy new online filing system (even if that introduction is occurring just a couple of days before we’re all supposed to be using that system officially), the Commission might want to work on its scheduling skills a bit. 

Perhaps the Commission was counting on CommLawBlog to get the word out. In that case, mission accomplished.

In particular, the log-on procedure now requires a station’s FRN and password.   Group owners may prefer a system that does not permit staff at one of the station group to access the public file(s) of any other station(s). Also, some station owners – both groups and single-station folks – may prefer not to disclose their FRN password to the clerical staff that will upload public file documents. In response to these concerns, the FCC is working on an alternative log-on system.

The new public file system is organized into linked categories – with the separate links serving as a convenient reminder of the kinds of documents licensees are expected to upload.  One type of document that will not need to be uploaded: applications and reports filed electronically through other systems, including applications filed through CDBS and Children’s TV Reports. Those items will be imported to the public file automatically by the FCC.  A toggle switch will be displayed beside each imported application or report, allowing the station to delete the document if it was improperly imported or is out of date.  The FCC also plans to try to purge out-of-date applications itself, at least for those that have standard retention periods.  We don’t know for sure yet how stations will be able to purge documents that were not imported by the FCC, although some purging capability will obviously come in handy if there are uploading errors or a retention period expires.

Uploading newly-created materials to the public political file, required initially only in major markets, will take some organizational effort by stations, because each purchase or request for time will have to be recorded in a separate document and uploaded into appropriate folders – one for federal, one for state, and one for local elections.  The FCC's demonstration showed, within those folders, subfolders for (a) each separate elective office and (b) non-candidate issue advertising. It appears that the FCC’s system will allow for a degree of folder customization by the station, but we’ll have to wait to see exactly how that will work.

The FCC will accept uploads in multiple formats, including word processing and spreadsheet programs, although any document not uploaded in Adobe Acrobat (.pdf) format will be converted by the FCC’s server to a .pdf file.

Speaking of electronic filing, there is now a new optional server-based interface for uploading Children’s TV Reports.  It went online July 12, 2012.  It might be worth a look before the next reports are due on October 10.

Stay tuned to CommLawBlog.com for updates from the online public file front.

Well, not exactly. We had suggested that the NAB might ask the court to issue a stay; the NAB instead asked the FCC itself to put the rule on hold pending the resolution of the NAB appeal. For what it’s worth, we’ll stick with our prediction that the NAB will eventually be asking the court for a stay, since it seems unlikely to the max that the FCC will be inclined to grant a stay. That doesn’t mean that the NAB’s petition to the Commission was wasted or ill-advised. To the contrary, the court normally expects parties seeking a stay to apply first to the agency itself. Thus, it makes sense that the NAB would ask the FCC at the earliest possible date for a stay, to get that particular procedural step out of the way. Having done so, the NAB is now in a position to head to court if (as the smart money expects) the Commission denies, or simply ignores, the NAB’s stay request.

Check back here at CommLawBlog.com for further developments.

Form 477 is required to be filed twice a year by CMRS and broadband providers. In 2008 OMB had approved it through June 30, 2011. But that approval did not include a number of changes to the form which the Commission had adopted in March, 2008, but had not released until three months later. When it did release the order setting out those changes, the Commission stated that the changes “SHALL BE EFFECTIVE 30 days after publication of notice of the Report and Order and Further Notice in the FEDERAL REGISTER, subject to Office of Management and Budget (OMB) approval for new or modified information collection requirements.” On July 2, 2008, the text of the Report and Order was published in the Federal Register with the following notation:

The amendments to §§1.7001 and 43.11 in this document contain information collection requirements that have not been approved by the Office of Management and Budget. The Federal Communications Commission will publish a document in the Federal Register announcing the effective date.

On Christmas Eve, 2008, the FCC sent the new rules, including the revised Form 477, over to OMB for its review pursuant to the Paperwork Reduction Act. OMB signed off on the new rules and the revised form on January 30, 2009 – but the revised form was approved for only one year (rather than the usual three), i.e., through January, 2010. OMB was apparently concerned about the burdens the revisions would impose on entities required to complete the form, so OMB insisted that the FCC come back in a year, after re-evaluating the reporting requirements and methods.

Usually, once OMB approval has been granted, the FCC publishes a brief notice in the Federal Register alerting everyone that the rules (a) have been approved by OMB and (b) are effective as of the date of that notice.

Not this time.

It wasn’t until November 7, 2011 that the FCC published the notice declaring that the rules were effective as of that date.  That lag time – from 2009 to 2011 – was noteworthy in and of itself. But further examination of the OMB website reveals even more interesting information.

It turns out that, when the one-year approval issued by OMB in January, 2009, expired in January, 2010, the FCC went back for a full three-year approval, which OMB duly granted (through April 30, 2013) – but not until April 26, 2010, i.e., more than a month after the March, 2010 deadline for filing Form 477.  So the revised version of Form 477 would appear not to have been approved at all by OMB for that particular filing opportunity.  The November 7 Federal Register notice doesn't mention that.

And even though the form had technically been approved by OMB since 2009 (assuming we ignore that gap in 2010), the FCC apparently failed to notify the public (including all affected regulatees) of any OMB approval until November, 2011. Since the Commission itself had specified that the revised rules and form would not be effective until the Commission published a Federal Register notice announcing the effective date, it would appear that Form 477, as revised in 2008, did not become effective until November, 2011. 

Of course, everyone in the industry had used the new form twice a year starting in March, 2009, justifiably assuming that the form and its information requirements had become effective. Imagine their surprise when the Federal Register announced that the new reporting requirement had not really become effective until November, 2011!

When it comes to completing Form 477, we’re not talking about a minor chore that can be tossed off in a couple of minutes. According to the FCC’s own estimate (submitted to OMB in the FCC’s February, 2010 re-submission of the form), the burden of filling in Form 477, per semi-annual response, was a whopping 289 hours – and that estimate was reduced from the Commission’s original 2008 estimate of 337 hours.   Let’s do the math: 289 hours twice a year equals 578 hours, divided by 40 hours/week (i.e., a standard work-week) equals more than 14 weeks. In other words, completion of the form could be expected, on average, to require the full-time attention of a single employee for more than 14 weeks, or more than three months each year.

In view of this burden, it’s not unreasonable to expect the FCC to be clear as to when the requirement has taken effect.

But a glance at the Code of Federal Regulations, which would normally be the authoritative reference on an issue like this, only confuses the issue further. Section 43.11 of the 2009 edition sets forth the text of the revised reporting rule, but includes a footnote stating that it “will not become effective until approval has been given by the Office of Management and Budget.”   And over in Section 0.408, a section in which all OMB control numbers and their related expiration dates are maintained, the expiration date for Form 477 is listed as “06/30/11”. But that’s the expiration date for the old version of the form, not the version as revised in 2008.

For an agency information collection requirement to become effective, the Paperwork Reduction Act provides only that the OMB must approve that requirement. As far as we can tell, there is no separate requirement that the FCC or OMB publish a Federal Register notice reflecting OMB’s approval.   So, theoretically, a rule adopted “subject to OMB approval” could become effective immediately upon OMB approval without further action by the FCC. But how would anybody know that the rule had become effective since OMB does not itself publish its approval actions? And why would anyone even think to delve into the deep weeds of the OMB’s records to see if OMB has indeed issued its approval when the Commission has clearly and unequivocally stated that the Commission would announce the effective date in the Federal Register?

Let’s say you are a regulated company and you have to file some information with the FCC, subject to heavy civil penalties and potential damage to your good standing as a licensee if you don’t file, or if you file the wrong information.   Did the pertinent “information collection” requirement that tells you what you have to file become effective when the FCC formally voted to adopt it? Did it become effective when the text was released? Did it become effective 31 days after it was published in the Federal Register? Did it become effective when OMB approved the requirement? Did it become effective when the form bearing the OMB control number was posted? Or did it become effective when the FCC published the OMB approval and announced that it was now “effective” – a date that, in the case of Form 477, occurred more than three years (and six separate filing opportunities) after the information collection was technically adopted by the Commission? 

You make the call. Good luck.

Notwithstanding the uncertainty about when the rule went into effect, few would disagree that it makes no sense for the FCC to adopt a rule in March, 2008 – presumably because the rule was in the public interest – only to have that rule sit in limbo until November, 2011 as a result of the Paperwork Reduction Act.    The FCC has recently pledged to get its orders out more quickly after they are adopted, but how about tying up the rest of the loose ends, too?