“Possible” culmination? Well, yes. Those familiar with the recent history of the public file requirement will recall that, in 2007, the Commission mandated that TV public files be made available online. But the Commission never jumped through the hoops that would have been necessary to translate that mandate into regulatory reality. Will this latest effort produce different results? It’s hard to say. The Commission sure seems serious about it, but there are a number of practical problems that could gum up the works, at least in the short term.
The vast majority of existing public files for TV stations will have to be uploaded to an FCC-managed website. Each licensee will be responsible for posting: political advertising materials (more on that below); quarterly issues/programs lists; annual EEO Public File Reports; time brokerage agreements; joint sales agreements; must-carry or retransmission consent elections; children’s televisions commercial limits records; citizen agreements; donor lists for noncommercial educational stations; local notice announcements; documentation of continuing eligibility for Class A stations; and materials related to FCC investigations.
Significantly, the requirement to upload these documents, other than the political file materials, is not just on a “going forward” basis. Stations will be required, for instance, to upload all quarterly issues/programs lists going back to their last renewal. Basically, if it’s in your public file as of the effective date of the new rules (and it’s not political or a communication from a member of the public), it will need to be included in the online version.
There is some limited good news on the material-to-be-uploaded front.
First, licensees will not be required to upload documents already available on the FCC website – e.g., licenses and construction permits, applications, contour maps, ownership reports, EEO Program Reports and Mid-Term Reports, children’s television reports, FCC letters of inquiry (as well as other “investigative information requests” from the Commission), and “The Public and Broadcasting” manual. As currently envisioned, the Commission’s system will automatically link such items to the appropriate public file.
Second, letters and emails from the public will not need to be uploaded to the online public file. Instead, stations will continue to keep them in a publicly available correspondence file at the main studio. That includes complaints from the public, regardless of their lack of merit. (And even more good news on this front: the Commission also affirmed that comments left by the public on social media websites, such as Facebook, do not need to be maintained in any file, online or at the station.)
Third, shared services agreements will not have to be made available in any public file. Ditto for written sponsorship identification disclosures. The Commission’s 2011 proposal envisioned broadening the contents of the public file to include such materials, but the Commission has apparently thought better of those ideas.
So much for the broad strokes. Let’s take a look at some of the details.
Political advertising materials – Under the original 2007 proposal, stations would not have been required to make their political files available online. Bad news there: the Commission (Commissioner McDowell dissenting on this point) has decided stations indeed will need to upload political file materials to their online public files.
To cushion this particular blow, though, stations will have to do so only on a “going forward” basis. There will be no need to upload the reams of pages generated prior to the date when the new rules kick in, although stations will still be required to hold onto those old paper files and make them available for inspection at the station.
The majority of stations won’t have to start posting their political file documents until July 1, 2014. But the Big Guys – i.e., any station in a top-50 market affiliated with one of the four biggest commercial networks (ABC, NBC, CBS and Fox) – must comply as soon as the rules go into effect.
Stations will have to immediately post any initial requests or final orders from candidates for specific schedules, including the amounts and classes of time bought and the rates charged. Station will not be required to post general requests by candidates regarding availabilities and/or rates for a general array of time, or a record of the back-and-forth discussions with the candidates after a time request is made. In addition to posting the details of any final, mutually agreed upon time order, stations must provide follow-up reconciliation information about the order, such as the times the spots actually aired, information regarding “make goods” for preempted time and rebates or credits issued.
The FCC acknowledges that reconciliation information typically doesn’t get placed in the public file until after the final billing has been sent out, depending on the licensee’s business practices. Instead, stations make personnel available to answer questions about that data. Written documentation of the final reconciliation is posted at a later date consistent with the station’s business practices. That approach is expressly permitted in the online public file era.
Of course, a lot of stuff regarding a lot of candidates goes into a political file each election cycle. To assist in keeping the file orderly, the FCC is planning to include in its online system organizational features, like subfolders for candidates and issue ads (and the ability for stations to create their own additional subfolders and subcategories).
Acknowledging the fallibility of its own still-to-be-designed-and-tested-and-implemented online system, the Commission also imposes an additional political file duty on licensees. Licensees will have to maintain their own local back-up copies of their political files (but not of the remainder of their online public files) to ensure that, in the event the FCC’s system goes down, they still can make information available to candidates as soon as possible. On this point the Commission reassuringly coos that it does “not expect the requirement to provide back-up access to the political file during any times of outages to be overly burdensome.”
Of course, the Commission may be correct that the actual provision of back-up access may not be a problem. But maintaining a set of electronic back-up files that will enable you to provide that access? That’s another story. The FCC suggests that stations might want to make “mirror copies” of what the station has uploaded to the FCC’s site. Sounds simple. According to the Commission, here’s what would be involved:
[S]tations will need to ensure that they retain any political file records that have not been uploaded or were uploaded after their last download of a mirror copy of their online public file. This means that if a station decides to download a mirror copy of their online public file on a weekly basis, it will need to maintain at the station, in paper or electronic form, any documents that have not been uploaded or that it uploaded to the online political file after its last weekly download. If a station chooses to download a mirror copy of their online public file on a monthly basis, it will need to maintain at the station any documents that have not been uploaded or that it uploaded to the online political file after its last monthly download.
Got that? And if you don’t download any mirror copies, well, then you’ll have to maintain at the station copies of all documents required to be in your online political file.
While the FCC emphasizes that such station-maintained back-up copies will have to be made available only in the event that the Commission’s system itself crashes, the Commission seems to ignore that making those copies available is only part of the burden. Having those back-up copies on hand and ready at all times (since it’s impossible to reliably predict exactly when the FCC’s system will crash) – well, there’s the rub.
Materials about investigation or complaints – Stations currently are required to retain in the public file “material having a substantial bearing on a matter which is the subject of an FCC investigation or complaint to the FCC” of which the subject station is aware. That obligation will continue in the online era. While the FCC will automatically post in each station’s public file any document (e.g., letter of inquiry, order terminating an investigation, notice of apparent liability) from the FCC regarding investigation, the station will be obligated to upload its responses to Commission inquiries (unless the FCC directs to the contrary in any particular case). Stations will still be able to request confidential treatment of particular information; materials subject to a confidentiality request may be placed online with the confidential material redacted.
Complaints a station receives that are not the subject of an FCC letter of inquiry or other investigative request are not required to be posted in the online public file – but heads up! Such complaints are required to be included in the station’s hard-copy, locally-available correspondence file (unless the FCC specifies otherwise).
New obligations – As a general matter, the FCC’s new rules don’t require any new categories of information to be kept in the public file. BUT the rules do require that the online public file include the station’s main studio address and telephone number and the email address of a person designated to handle questions about the public file. Also, stations that have websites will be required to: (a) place a link to the online public file on their home page; and (b) include on their home page contact information for a station representative who can “assist any person with disabilities with issues related to the content of the public files.”
Document formats – When the time comes to upload materials, what exactly will you be uploading? The Commission expects stations to provide documents in their “native formats”, to the extent “technically feasible”. That means that the FCC would prefer to have the “original” electronic versions of documents, rather than PDF versions produced by scanning paper copies (although the Commission acknowledges that scanning may be required for older documents). What if you’ve got electronic copies in both PDF and, say, Microsoft Word (i.e., “.doc”)? It appears that either will do, as long as the uploaded version is text-searchable. Note, though, that stations will not be required either “to create or preserve” metadata. That means that you can, and probably should, “scrub” any documents to be uploaded to the online public file.
Timing – So when does all this falderal begin? Stations will be required to begin using the online filing system as of the effective date of the new rules. That date will be 30 days after the FCC announces, in the Federal Register, that the Office of Management and Budget has approved the new data collection requirements (as required by the Paperwork Reduction Act). Check back here for updates on that score.
Once the effective date arrives, all full-power and Class A TV licensees will have to upload to the online file all newly-created documents required to be placed in the public file except for letters/emails from the public and, in some cases, political file materials. Those licensees will have six months in which to upload all pre-existing public file documents to the online system (again, with the exception of communications from the public and, in all cases, political materials).
Who has to upload political materials and when? Nobody has to upload existing political file materials – they’ve been exempted from the online file requirement. The first folks to feel the brunt of the online rule as far as political materials go are the Big Guys we mentioned above (stations (a) affiliated with one of the top four commercial networks and (b) located in a Top 50 market). If you’re one of them, you have to start uploading your newly-created political documents as of the effective date of the rules. Everybody else can relax until July 1, 2014 on this score.
Once the system is up and running, broadcasters will be expected to actively manage their online public files. The Commission is not specifically requiring stations to take down each item at the end of its retention period, but notes that stations should not allow the public files to become so overgrown with out-of-date documents that it is difficult to access relevant materials
Development schedule for the online system – The FCC says it anticipates “being able to design an online public file that is highly available, scalable, cloud-based and eliminates any user wait times associated with processing documents after upload.” You will forgive our skepticism, but we struggled through the implementation of the new Ownership Report (Form 323). Form 323 was filed through CDBS, an established, tried-and-sometimes-true system with which the FCC had years of experience. As even the Commission admits in a masterpiece of understatement, the revised Form 323 implemented in 2010 caused “problems”. (We in the Real World can attest to the truth of that admission.)
But if the Commission couldn’t get the Form 323 filing to work in a familiar infrastructure environment, is it realistic to think that the Commission will fare better in the terra incognita of the cloud, with a system the Commission seems to be making up as it goes along? The Commission claims the public file system will work smoothly. We’ll see.
Will all of this lead to a new era of transparency, efficiency and regulatory bliss? Maybe, maybe not. Members of the general public (i.e., almost everybody except wayward students working on research and political campaign time buyers) have historically ignored the long-time availability of in-station public files. It’s hard to imagine that those same members will suddenly flock in droves to online public files.
Of course, in adopting the new rules, the Commission has made clear that the public file – online or in-station – is not really just for the public. Rather, it’s also a “tool for the larger media policy community.” The “larger media policy community”? Who might that be? “Public advocacy groups, journalists, and researchers”, that’s who. According to the Commission, these members of the “larger media policy community” act “as surrogates for the viewing public in evaluating and reporting on broadcast stations’ performance”.
Why the viewing public might need “surrogates” is not clear. Certainly many members of the “viewing public” would likely be surprised to hear that the FCC thinks that the public needs any help in “evaluating” broadcasters’ performance. Presumably, though, the FCC figures that it knows what’s best for the viewing public.