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.

First, the Commission has not yet announced that it has, in fact, developed the online system to which the files will have to be uploaded. Until that practical hurdle has been leapt, there’s nowhere to upload the public file materials to. We’ll be on the lookout for a public notice from the FCC about this, probably in the near term.

And in addition to that practical consideration, there are a couple of pesky legal considerations. The materials included in a public inspection file may – and probably often do – include what the Commission refers to as “personally identifiable information” (PII). Governmental collection of PII is subject to constraints. In particular, before the FCC can collect PII, it must prepare a “Privacy Impact Assessment” and it must also prepare a “system of records” and issue a “System of Records Notice” (SORN) which must in turn be published in the Federal Register. The SORN provides details on how the records will be handled by the agency.

Normally, the publication of a SORN starts a 40-day waiting period (a) during which it is to be reviewed by the OMB and Congress and (b) before the end of which the agency may not implement the system.  Do the math and you’ll see the apparent problem: if the 40-day SORN review period hasn’t even started yet (since, according to the Federal Register notice, the system of records is still being prepared, so the SORN hasn’t been published yet), it’s, um, unlikely that that period will wrap up by August 2. 

Of course, the Commission could ask for a waiver of the 40-day period, but there would still be the problem of the 30-day waiting period imposed by the Privacy Act. Section 552a(e)(11) of the Act appears to prohibit any agency from publishing or disclosing any information in a newly-established or newly-revised system of records until the agency has provided a 30-day public notice period, commencing with Federal Register publication of the SORN. And we understand that that 30-day requirement can’t be waived.

Presumably all of these procedural niceties will sort themselves out eventually. Whether that will occur by August 2 is anybody’s guess.

And let’s also not forget that the NAB has filed a petition for review asking the U.S. Court of Appeals for the D.C. Circuit to take a look at the revised public file rule. (Issues on the table: whether the public file rule is arbitrary and capricious, unconstitutional, and/or contrary to the Bipartisan Campaign Reform Act.) Now that we have an effective date for the rule (or at least a theoretical effective date), the NAB might be inclined to ask the Court to stay the effectiveness of the rule pending resolution of the appeal. We’ll keep an eye out and let you know if anything along those lines surfaces.

In any event, for what it’s worth, the FCC has announced that the revised public file rule will take effect on August 2. Check back with us here at CommLawBlog for further developments.

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.

As currently proposed, that form would be required only of television stations (both commercial and noncommercial), although the Commission does say that it expects “eventually” to adopt similar requirements for radio.  The proposed form looks a lot like the 2007 version, which should not be surprising, since both came from the same source. That would be the Public Interest, Public Airwaves Coalition (PIPAC), which designed and championed the 2007 version and has now returned with the 2011 version. 

You may recall that the 2007 Form 355 required detailed reporting of all TV programming (per quarter) in a bunch of categories (including national news, local news, local civic affairs, local electoral affairs, local programming, public service announcements, paid public service announcements, underserved communities programming, religious programming and independent produced programming). Additional information – about such things as closed captioning, video description, emergency advisories – was also required. 

Even the Commission now acknowledges that the 2007 Form 355 was “overly burdensome”. That the 2007 Form 355 was indeed overly burdensome was obvious from the get-go, of course, so the fact that it has taken the Commission some four years to get to this point is not especially comforting.  And sure enough, the FCC still appears to be wearing its 2007 blinders when it characterizes the 2011 Form 255 as “substantially reduc[ing] the burden”. (Although, since the 2007 version had set the bar so low, the Commission had plenty of ways to go before getting to something not overly burdensome.)

The Commission now proposes requiring reporting on programming in three categories: Local News, Local Civic/Governmental Affairs, and Local Electoral Affairs. The definitions of these categories would be (according to PIPAC, source authority for most of the Commission’s proposals here):

Local News: Locally produced programming that reports on issues about, or pertaining to, a licensee’s local community of license.

Local Civic/Governmental Affairs: Coverage of government meetings, legislative sessions, conferences featuring elected officials, substantive discussions of civic issues of interest to local communities or groups, and interviews with or statements by governmental officials and policy experts on issues of importance to the community.

Local Electoral Affairs: Candidate-centered discourse focusing on the local, state and federal races for offices to be elected by a constituency within the licensee’s broadcast area. Local electoral affairs programming includes broadcasts of candidate debates, interviews, or statements, as well as substantive discussions of ballot measures that will be put before the voters in a forthcoming election. 

The Commission requests comment on whether these categories are appropriate, whether the definitions are clear and workable or need refinement, and whether additional or different categories should be included. The NOI also asks whether, in addition to the specific categories, the Commission should include an opportunity to report on programming in other “optional” categories (which it turns out – here’s a surprise – track very closely the other categories the Commission had included in the PIPAC-designed 2007 Form 355).

The Commission does not propose a specific form for the report. Instead, it refers the reader to the proposed form prepared – and posted online – by (wait for it) PIPAC.

These reports would be quarterly and would cover two “composite weeks” from each quarter.  (What’s a “composite week”? It’s a week’s worth of days, but not from a single calendar week. So for the first quarter of a year, the composite week Sunday might be the Sunday from the first week of January, the Tuesday from the third week of March, Wednesday from the second week of February, etc. The Commission would select the component days of each composite week, and then broadcasters would have to use available station records for those dates to prepare the report.)

The NOI suggests that the information to be reported for each item of programming has yet to be tied down. It requests comment on whether entries should be by entire program (i.e., Local News at 5:00 for 30 minutes) or by program segment (i.e. one-minute piece on local school board election). The Commission also requests comment on its tentative proposal to allow a given program or segment to be included in only one category. 

As to the specific reportable information, the NOI (following PIPAC’s lead) suggests that licensees would have to include a title or topic, airdate and time, channel (primary or multicast), whether the programming is first-run, and the length of the segment without commercials. 

While some of these basic items may not be terribly controversial, two other suggested items might be. First, the PIPAC proposal would require broadcasters to identify whether any of the programming described in the Form 355 was subject to sponsorship identification requirements, and, if so, who sponsored the programming. Second, unlike the 2007 version of Form 355, broadcasters would be required to disclose whether any of the reported programming was produced under a shared services agreement, local marketing agreement, news sharing agreement, or any other arrangement with another broadcaster or a local newspaper. A link to the relevant agreement covering that production would also have to be provided.

PIPAC (and, therefore, the FCC) would also require licensees to:

• include in their reports various other links (e.g., to their online public file, their most recent ownership reports, and their most recent children’s programming reports);
• indicate whether the programming reported in their Form 355s is closed captioned (if so, the type of captioning – e.g., live, electronic newsroom – would also have to be disclosed);
• report on all of their “local electoral affairs programming” during the lowest-unit-charge windows before primaries (45 days) and general elections (60 days);
• and report on any programming (even if not otherwise included in the Form 355) that is exempt from captioning.

All of these proposals are technically open for comment, according to the NOI. Are the program categories appropriate? Are two composite weeks per quarter enough, too many or just right? When should the Commission clue broadcasters in to the precise dates selected for each composite week? What exceptions (if any) to all these requirements should be considered? Should reporting on video description be required? How about the PIPAC proposal that would require reporting of the number of complaints received regarding captioning and accessibility of emergency programming?

The Commission also devotes a section of the NOI to the question of cost/benefit analysis.

The problem here, though, is that the Commission appears already to have concluded that Form 355 is needed. The FCC is convinced that there is a “systemic problem”, that the public somehow lacks access to “consistent and uniform” information about broadcasters’ programming. Working from that premise, the Commission claims that a standardized disclosure form will help enable members of the public to be more involved in ensuring that stations address their needs. In particular, the Commission believes that the lack of consistency between various stations’ issues/programs lists makes “assessment and comparison” between broadcasters difficult. 

Of course, broadcast programming is by definition totally public and accessible. And it’s in each broadcaster’s interest to do what it can to maximize the number of people who watch its programming. So the notion that information about programming may somehow be inaccessible is odd.

But the Commission’s real goal here appears to be to create a Commission-maintained database of programming available for slicing, dicing and second-guessing by “researchers” – both on the FCC’s staff and in the private sector – who could “assess” and “compare” broadcasters’ programming. The FCC contemplates that Form 355 information would ultimately be submitted in some “machine-readable” format that would facilitate computer analysis. 

It is not much of a stretch, notwithstanding Commission disclaimers, to imagine the Commission using the data to try to pressure broadcasters (explicitly or by “raised eyebrow”) to air programming to the agency’s liking. That, of course, would raise serious constitutional problems, as previous Commissions have recognized. The NOI ignores those problems, even though Commissioner McDowell raised them and suggested that the NOI expressly address them.

The Commission also claims, somewhat counter-intuitively, that a new standardized disclosure form will help minimize FCC oversight of broadcasters. Professing that it’s really just here to help, the Commission claims that a new Form 355 will help solve the alleged “communications breakdown” between broadcasters and the public.

The NOI’s proposals reflect an effort by the Commission to return to a regulatory approach harkening back to the 1970s. Back then broadcasters (TV and radio) were required to provide detailed analyses of various types of nonentertainment programming in their renewal applications. The Commission even imposed “guideline” percentages for such programming; renewal applicants failing to achieve the minimum levels were theoretically subjected to greater scrutiny. But historically, even such “greater scrutiny” had no perceptible effect, and it was abandoned in the deregulatory actions of the early 1980s. Why the Commission could possibly expect any difference now is a mystery.

Obviously, the potential resurrection of the Form 355 should be a matter of concern to broadcasters. The NOI provides the opportunity to submit comments on the Form to the Commission, although if 2007 is any guide, the adoption of some version of the form may be a foregone conclusion. However, since we are only at the NOI stage, once the Commission receives and reviews the comments filed in response to the NOI, it will still have to issue a notice of proposed rulemaking, inviting another round of comments, before the new Form 355 can take effect. As we learned from the 2007 experience, even if the Commission puts a new form on the books, that’s no guarantee that the form will ever be implemented.

Comments will be due 30 days after the NOI is published in the Federal Register, with reply comments due only 15 days later. (Check back here for updates as to the deadlines.) Even if the Commission appears already to have made up its mind here, anyone with data countering the FCC’s various assumptions would be well-advised to take the time to bring those data to the Commission’s attention now (and at any further opportunities that may present themselves).

TV stations would still have to compile most of the same materials (including political files) currently required to be maintained in the public file – so there would be little lessening of any burdens there. The new rules would also, for the first time, include sponsorship identification information and agreements about news sharing and other shared services among the documents to be preserved, submitted and posted. Far from lessening licensees’ burdens, that would increase them. And under the proposal, all those materials would have to be preserved electronically (rather than in musty old paper files) and submitted to the Commission, which would then post them on the FCC’s own website. 

So any relief the TV universe may experience from the demise of the “enhanced disclosure” Form 355 report is likely to be short-lived.

Some background. As initially adopted in late 2007, Form 355 was a quarterly report intended to replace the existing issues and programs lists – except, unlike issues/programs lists, Form 355 was to submitted to the Commission.  The form sought detailed information about a wide range of program categories (e.g., national news, local news, local civic affairs, local electoral affairs, local programming, public service announcements, paid public service announcements, underserved communities programming, religious programming and independent produced programming). It was viewed by many observers as an intrusive, burdensome obligation which could (and in the eyes of some would) serve as a gateway to extensive content regulation by the Commission. Broadcasters voiced their objections in a number of petitions for reconsideration, as well as in comments filed pursuant to the Paperwork Reduction Act. (Appeals were preliminarily filed with the Court of Appeals for the D.C. Circuit, but they have been held in abeyance because of the pendency of the reconsideration petitions.)

For reasons the Commission hasn’t bothered to announce, the FCC declined to take the steps that would have been necessary to implement the Form 355 requirement. As a result, even though Form 355 was technically on the books as of early 2008, it did not have to be filed while the Commission mulled over the reconsideration petitions. 

The FNPRM vacates the 2007 order creating Form 355. But even as it tosses the form onto the scrap heap, the Commission indicates (in a footnote) that it is seriously considering an alternative reporting requirement that, according to the Commission, “substantially streamlines and revises” Form 355. That alternative was proposed by a coalition of “public interest” groups. Among other things, it would require the reporting of certain “core” categories of programming: Local News; Local Civic/Governmental Affairs; Local Electoral Affairs; and Closed Captioning/Emergency Accessibility Complaints. According to the FCC’s latest order, we can expect to see a Notice of Inquiry seeking comments on that alternative approach “promptly”.

So it’s a tad premature to kiss good-bye the notion of “enhanced reporting”.

The Commission’s 2007 decision also contemplated that TV station’s local public inspection files would be made accessible on-line (either on each station’s own respective website or on sites maintained by state broadcasting associations). That provision has also now been scrapped. But as noted above, the FCC has magnanimously agreed to host the public files of all TV stations. (The Commission claims that it will not review on-line public file documents for compliance with the rules “on a routine basis”. Whether it might do so in the future remains to be seen.) The licensee would still be required to maintain its own separate “back-up” copy of all uploaded public file materials, just in case the FCC’s system crashes. So licensees wouldn’t be relieved of any real burdens, it would appear. (It’s not clear why the Commission itself shouldn’t be responsible for maintaining its own back-up system, but let’s not go there just now.)

According to the FCC, an FCC-maintained public file would ease existing burdens on licensees because the Commission could automatically import into each station’s public file the various items already filed with the Commission (e.g., licenses, applications, children’s programming reports, etc.). But hold on there. For many licensees, these documents make up only a small portion of the total documents included in their public files. All the rest of the materials would still have to be prepared for uploading (e.g., scanned) and then uploaded by the licensee. That’s not an insubstantial burden in and of itself. 

The on-line public file would include all of the information currently required to be in the local public file (except for correspondence from the public – which would have to be maintained in a “correspondence file” at the station, available for public review). Importantly, this would include all political advertising information. Despite the volume of such information and the practical difficulty of keeping up with the flow of political buys in the midst of an election season, the FNPRM proposes that all political files be uploaded “immediately absent unusual circumstances”. 

Additionally, several new items would be required to be uploaded for public review – shared services agreements and sponsorship identification information. It’s not exactly clear what the Commission has in mind when it comes to sponsorship ID information. The FNPRM proposes that licensees be required to compile and post as part of their on-line public files a list of all sponsorship identifications that it broadcast where existing rules require broadcast of a sponsorship identification.

On the positive side, the Commission is proposing to eliminate the need for TV licensees to include a copy of their contour map in their public file (woo-hoo!), but they would have to include express identification of their main studio location.

As the Commission envisions the transition to an FCC-maintained on-line public file, each licensee would be required to upload into its on-line file all materials already in its public file. The Commission doesn’t think that that would pose too much of a burden – although, in an apparent effort to keep its bureaucratic fingernails clear of any dirt, the Commission has delegated to the Media Bureau the chore of figuring out precisely how (and when) the contents of several thousand public files are to be uploaded. As a result, a wide range of nitty-gritty questions – for instance, what format should the uploaded files be in? – remain unanswered.

The FNPRM also proposes to require TV stations to air announcements of the existence, location, and accessibility of their on-line public files at least three times per week as part of their station identification. Although a far cry from the twice-daily announcements that would have been required under the Commission’s 2007 Order, the Commission requests comment on whether the proposed number of announcements would be sufficient, excessive, or just right. The Commission also proposes requiring licensees who have a website to provide a link to the Commission-hosted on-line public file.   

Since the FNPRM is merely a collection of proposals, the Commission takes pains to solicit comments on the wide variety of questions that those proposals raise. A separate section of the FNPRM specifically solicits “cost/benefit” analyses relative to the various proposals. Television licensees in particular should review the FNPRM carefully with an eye toward providing the Commission as much detailed information as possible, particularly with respect to any burdens the proposed system is likely to impose. The FNPRM appears to have been drafted with the preconceived notion that any such burdens would be minimal and easily absorbed. If anyone is in a position to demonstrate flaws in the Commission’s presumptions, now would be a good time to let the Commission know.

While the Commission may attempt to portray its proposed FCC-maintained public file system as affording relief to TV broadcasters (who, under the now-discarded 2007 approach, would otherwise have had to maintain their own on-line public files), the Commission appears to  have other goals in mind. In particular, the Commission perceives this system as a stepping stone toward an “ultimate goal”. And that “ultimate goal” is the transformation of the public file into a source of data that can be “aggregated, manipulated, and more easily analyzed”. (The FNPRM poses a number of questions concerning whether – and if so, how – the Commission might impose standardized formatting requirements to assure the consistency and searchability of all submissions, which would facilitate the aforementioned aggregation, manipulation and analysis of the data.)

Comments on the FNPRM’s proposals will be due 30 days after its publication in the Federal Register, with reply comments due only 15 days after comments are filed. (Check back here for updates on Register publication.) In view of the broad range and deep complexity of the questions posed, not to mention the time required to respond to the Commission’s request for detailed cost/benefit analyses, those timeframes seem inadequate. If the Commission were genuinely interested in developing a solid factual record on which to proceed, it would provide considerably more time. If the Commission has already reached its conclusions and is inviting comments simply as a perfunctory nod to the requirements of the Administrative Procedure Act, then the allotted comment periods should be plenty.

While the proposals appear to be on a fast track, there remain a number of hoops for the Commission to jump through. But the direction in which the FCC is determined to steer this proceeding is clear. TV licensees should pay attention now – as should all broadcasters, since it’s reasonable to assume that, if these proposals are adopted for TV, the radio side will see similar rules in short order.

• While political files are not required to be posted, emails from the public are, and documents available on the Commission's site but not posted on the station's site must be linked to the station's site.  Stations must also retain hard copies of all letters and emails from the public in their public inspection files.
• Stations must make the public inspection file portion of their websites accessible to the disabled, requiring compliance with specific Web Content Accessibility guidelines

Among the new reporting requirements are the following:

• The current issues/programs lists required by TV licensees will be replaced by the all-new FCC Form 355 (available at Pg. 31 of the attached Report & Order), which will have to be filed with the Commission (electronically) each quarter on the 30^th day of the succeeding calendar quarter - that is, the reports will have to be filed by April 30, July 30, October 30, and January 30 of each year.
• In the quarterly reports, which cover not only the main broadcast channel but also all additional programming stream(s), each TV licensee is required to describe its programming in a laundry list of categories including national news, local news, local civic affairs, local electoral affairs, local programming, public service announcements, paid public service announcements, underserved communities programming, religious programming and independent produced programming.
• Broadcasters must report information on closed captioning (including which programs were not closed captioned due to exemptions and the basis for each exemption), voluntary video description efforts, efforts to make emergency information available and access of the information to the disabled.
• Broadcasters must certify that they have undertaken ascertainment efforts to assess the needs of their community, and must specify whether they have designed programming to address those needs.  The new rules do not mandate specific ascertainment efforts, although the new Form 355 does require the reporting licensee to describe (a) any ascertainment efforts it did take and (b) any programming designed to address any needs identified through such efforts.

The new rules will not go into effect until 60 days after notice of their approval by the Office of Management and Budget is published in the Federal Register.  Stations with existent websites must have their public inspection files posted online at that time.  Any websites later created must comply with the rules within 30 days after the sites are made available to the public.

We will have more on the new rules and potential challenges to their validity in the next edition of Memorandum to Clients.  In the meantime, if you have any questions please do not hesitate to contact your FHH attorney.

The full text of the Commission's decision has not yet been released as of this writing, so it's impossible to know just now precisely how far the rules will drag the TV industry back in the direction of content regulation. (The FCC's news release describing the action may be found here. But the available signs are ominous. In separate concurring statements, both Commissioners Copps and Adelstein rattled the regulatory saber (Copps: "no public interest performance, no license"), suggesting that the new reporting requirements may just be a first step in the direction of more extensive programming review by the agency.

Of course, before that could occur, the Commission would presumably have to impose more specific record keeping requirements - like, f'rinstance, detailed program logging, so that licensees would have a common source from which to compile their reports. But before the Commission could impose a logging requirement, it would also have to define the various types of programming that would have to be separately logged. (From the available accounts of the new TV reporting requirements, that would include, at a minimum, "local civic programming", "local electoral affairs programming", and "independently produced programming".) And, if the Commission were going to be truly serious about threatening non-renewal based on programming performance, it would also have to announce reasonably specific quantitative and qualitative standards that would apply in such an analysis.

All of which would take the Commission perilously close to content regulation contrary to the First Amendment (and Section 326 of the Communications Act).

If it's any comfort, history strongly suggests that, despite its various fulminations and bloviations, in the end the Commission will stop short of involving itself with any depth in program content. In fact, the new rules are just the latest manifestation of a regulatory cycle that can be seen running its course since broadcast regulation began in the 1920s. (That cycle is describing in some detail in a law review article by FHH attorneys Harry Cole and Patrick Murck. But the fact that the Commission is starting down that road again means that the television industry - and, more than likely, the radio industry as well, although it has momentarily dodged the bullet - can expect increased regulatory noise about programming for the foreseeable future.

We will provide more detailed information about the new rules when the full text of the FCC's action is released. Until then, hold onto your flux capacitor.