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

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.