Public Inspection File Rule: The FCC Asks (Again) If It's Really Necessary

Thanks to the Paperwork Reduction Act, the public file rule is out for comment … again

The Paperwork Reduction Act strikes again! As we all know, the PRA requires the FCC to get clearance from the Office of Management and Budget for “information collections” the FCC wants to impose on its regulatees. OMB clearances have a shelf-life of three years, meaning that the Commission has to truck on back to OMB every three years to re-up previously issued clearances.

Those of you with reasonably long memories may see where this is heading.

Three years ago was when OMB last approved the Commission’s local public inspection file (and related political file) rules for broadcast and cable operators. (Those rules may be found at §§73.3526, 73.3527, 73.1943 and 76.1701.) And sure enough, the FCC has now solicited comments on those rules yet again as part of the process necessary to secure another three-year OK from OMB.

We reported on the 2011 proceedings back when they first got started. You may want to take a look at that report, because not much has changed this time around. The Commission is again inviting comment on several boilerplate questions, including:

(a)    whether the public file rules are “necessary for the proper performance of the functions of the Commission, including whether the [collected] information shall have practical utility”; and

(b) whether the Commission’s burden estimate is accurate.

As to that “burden estimate”, the numbers continue to amuse and amaze. Recall that in 2011 the Commission estimated that 52,285 respondents (providing a total of 52, 285 responses) would require anywhere from 2.5-109 hours to comply with the public file rules, resulting in a “Total Annual Burden” of “1,831,706” (the 2011 notice didn’t put any units on that total burden estimate, but we figure it probably referred to hours) and a “Total Annual Cost” of (are you sitting down?) “none”.

This time around, the corresponding estimates are: 24,558 respondents (providing a total of 63,234 responses); one hour to 104 hours per response; “Total Annual Burden” – 2,375,336 hours; “Total Annual Cost” – $882,236.

If these numbers look a bit odd to you, join the club.

The number of respondents this year is down more than 50% from 2011, but the number of responses is up by more than 20%. While the time per response has gone down, the Total Annual Burden has skyrocketed by almost 30%. And how about that estimated “Total Annual Cost”? It has shot from “none” (which is where it had been pegged by the FCC in 2008, too) to $882,236. And let’s not forget that in 2008, the Commission included an estimate of the “Total Annual ‘In-house’ Cost” – $37,469,148. How that might have been squared with the “Total Annual Cost” figure of “none” was never explained. The 2011 and 2015 notices have not provided “Total Annual ‘In-house’ Cost” figures.

The OMB website reflects that, in 2011, a number of broadcast groups submitted comments. While those did not succeed in getting the kibosh put on the rules, they may have had some impact: we heard off-the-record reports that the folks at OMB had a bunch of questions for the Commission before approving the rules then. As it turns out, that approval contained the proviso that “[d]uring the period before the next three-year renewal, the FCC will continue its work to modernize and streamline the inspection file requirement.” And in 2012 (when OMB had to consider some proposed tweaks to the public file rules – a proposal which also attracted considerable broadcaster comments), OMB specified in its approval that, going forward, the Commission would have to “review and take into consideration submitted comments regarding the burden placed on affected entities and where necessary, propose possible revisions to the associated information collection to reduce unnecessary burden while continuing to maximize the practical utility of the information requested from respondents.”

So it’s at least possible that the comment opportunities provided by the PRA may not be entirely useless after all.

The public file rule might serve some valid purpose – but, since the Commission has never done anything to investigate the validity of that proposition, nobody can say for sure. It’s probably safe to assume that the FCC is not enthusiastic about launching such an investigation on its own. (As we have previously observed, the Commission has ignored for nearly a decade a petition for rulemaking filed by our friend, communications attorney David Tillotson, challenging the validity of the public file requirement.)

But the Paperwork Reduction Act requires the Commission to justify rules like this every three years, so we all have another chance to make the case: do the public file rules serve a useful purpose, are the FCC’s burden estimates valid and, if so, does the supposedly useful purpose justify the supposedly valid burdens? And let’s not forget: the Commission must satisfy the OMB that the FCC’s assessment is correct.

In other words, anyone who has any thoughts about the public file should take advantage of this opportunity to articulate them to the FCC. The Commission will be accepting comments through July 6, 2015. After that, the Commission will bundle up any and all comments submitted and send them over to OMB, along with a statement in support of the rules (assuming that the Commission is not persuaded by the comments to drop the rules entirely). OMB will then provide an additional 30-day comment period.  If OMB declines to approve the rules, the FCC will be unable to enforce them.

No Contest? Enforceability of Broadcast Contest Rule In Question

If you’re a broadcaster and you’re worried that you may have violated the on-air contest rule – or if the FCC has concluded that you did violate that rule – you may be in luck.

As we all know, the hilariously-named Paperwork Reduction Act (PRA) requires the FCC to get the approval of the Office of Management and Budget before the FCC can unleash “information collection” obligations on its regulatees. The PRA process – which provides not one, but two separate opportunities for public comment, thereby ironically doubling the potential paperwork to be created – often appears to involve little more than rubber-stamping, with no apparent attention paid to any public input that might be submitted.

What does this have to do with the FCC’s contest rule? Read on.

As it turns out, there is a nugget of considerable value in the PRA. It prohibits the FCC from imposing “any penalty” on anybody for failing to comply with an “information collection” that does not happen to have an official OMB Control Number reflecting compliance with the PRA. That prohibition – set out in 44 U.S.C. §3512 of the U.S. Code – is an absolute get-out-of-FCC-jail-free card: Congress expressly provided that the prohibition against penalties applies “notwithstanding any other provision of law”. And if that didn’t make it clear enough, Congress went on to say that “The protection provided by this section may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto.”

(If you want to check on FCC “information collections” that have already passed muster, you can find them all listed, with their respective OMB Control Numbers, in Section 0.408 of the Commission’s rules. It’s an impressive list.)

When the FCC wants to get an OMB Control Number for an “information collection”, it must first place a notice in the Federal Register inviting the public to comment on the “information collection”. These notices are akin to the legal notices that appear, usually in about 2-point type, at the back of your local newspaper. They’re a formality, supposedly intended to put the world on notice, but seriously, who ever reads these things?

We do.

And so it was that we came across a terse PRA notice in the Federal Register announcing that the FCC is seeking an OMB Control Number relative to Section 73.1216, its broadcast contest rule. According to the notice:

The Commission adopted the Contest Rule in 1976 to address concerns about the manner in which broadcast stations were conducting contests over the air. The Contest Rule generally requires stations to broadcast material contest terms fully and accurately the first time the audience is told how to participate in a contest, and periodically thereafter. In addition, stations must conduct contests substantially as announced. These information collection requirements are necessary to ensure that broadcast licensees conduct contests with due regard for the public interest.

Elsewhere in the notice the Commission seems to characterize Section 73.1216 as an “[e]xisting information collection in use without an OMB Control Number.”

And what does the PRA call an information collection without an OMB Control Number? Unenforceable.

Precisely why the FCC has decided now, nearly 40 years after the contest rule was first adopted, to declare the rule to be an “information collection” isn’t clear. But it seems to have done just that. And it is beyond question – as the PRA notice expressly concedes – that that information collection has been in use by the FCC without an OMB Control Number. So it sure looks like the Commission has effectively announced that, at least until the PRA process runs its course and a Control Number is issued, the FCC is not in a position to enforce the Contest Rule.

How this development might come into play in connection with current, ongoing investigations into possible contest violations isn’t clear. Nor is it clear how, if at all, this might affect previously-issued fines for contest violations. But if you happen to have a contest problem on your hands, you might want to make sure that your counsel is aware of the Federal Register notice (as well as 44 U.S.C. §3512).

Of course, given the terseness of the PRA notice, we may be missing something here. If so, ideally the Commission will clarify what’s going on. In the meantime, broadcasters who run on-air contests should take a look at the PRA notice for themselves.

Paperwork Reduction(?) Act

A recent notice about DTV construction permit applications got us thinking about our old friend, the PRA.

Has the FCC changed the process for applying for DTV construction permits? Probably not, but a recent notice in the Federal Register seemed to suggest otherwise. It turns out, though, that the real story here is the hypnotic effect of the Paperwork Reduction Act (PRA).

The PRA – usually referred to as “hilariously named” here in the CommLawBlog bunker – is a pleasant vestige of the 1980s. It was intended to curb the wretched excesses of federal regulatory agencies. The idea was that, before an agency could impose a new paperwork burden on the public, the agency would have to take the time to quantify, and justify, the anticipated burden. The Office of Management and Budget (OMB) was appointed the final checkpoint on the regulatory assembly line to ensure that agencies were not overstepping.

This being Washington, the PRA process is more elaborate than might have been expected. The agency first devises the proposed “information collection” and determines who will have to submit the information and how much time it’s likely to take them. (While the former is generally easy for the FCC to pinpoint, the latter not so much. Example: Several years ago a Commission PRA notice advised that completion of a particular LPFM form was expected to take anywhere from one-seventh of a second (that would be 0.0025 minutes) to 12 hours. It’s hard to say which is more dubious, the accuracy of that estimate or its utility.)

The FCC then publishes that information in a nondescript notice in the Federal Register, giving anybody who wants to comment a generous 60 days to do so. Following that period, the FCC packs up the proposed form and any comments received, slaps on an explanatory cover memo, and ships the whole shooting match over to OMB, which then issues its own nondescript Federal Register notice soliciting a second 30-day round of comments. OMB then dutifully reviews any comments that roll in and, in nearly all cases, rubber-stamps the form.

Which brings us to DTV CPs.

Historically, you filed for DTV permits on Form 301. As we have reported, the FCC is in the process of overhauling its on-line application file system. In connection with that, new DTV CPs must now be applied for using Form 2100, Appendix A, which recently showed up in a Federal Register PRA notice. With respect to DTV permits and Form 2100, the notice said:

To receive authorization for commencement of Digital Television (‘‘DTV’’) operations, commercial broadcast licensees must file FCC Form 2100, Schedule A for a construction permit. The application may be filed anytime after receiving the initial DTV allotment and before mid-point in the applicant’s construction period.

This statement struck us as puzzling. Normally you don’t have a broadcast construction period until you have a construction permit, and you can’t get a permit until you apply for one. So what’s all this about filing your Form 2100, Appendix A, “anytime … before the mid-point” of the construction permit? Could this be something radically new and different?

Quite to the contrary.

A little research led us on a jaunt down memory lane. It turns out that the odd language is a vestige of the DTV transition. Yes, that DTV transition, the one that happened more than five years ago. 

Back in the late 1990s, as the Commission was teeing up the transition, it allotted each full-power TV station a separate DTV channel for transition purposes. Stations had to construct their DTV facilities within a certain timeframe, with deadlines ranging from 1999 to 2003. In light of the theoretically fixed deadline for transition, there was some urgency in making sure that licensees had at least applied for construction permits in a timely manner, and, thus they had to apply for the necessary permit “before the mid-point in a particular applicant’s construction period has expired.” Since that timing consideration was an important aspect of the application process, specific reference was made to it in the PRA notice relating to Form 301, Form 2100’s antecedent, back in the 1990s, as far as we can tell.

And once the language about filing for a DTV CP by the mid-point of the construction permit was included, it planted deep roots.

While OMB’s online records aren’t particularly complete prior to 2007, we found a December 2007 notice (concerning Form 301) that featured precisely the same language that showed up in the recent notice about Form 2100. So it would appear that language tied to a 1997-vintage DTV transition requirement that was relevant only for a finite period of time has hung on in PRA notices related to DTV CP applications to this day, even though that language hasn’t been relevant to anything for more than five years (and probably longer in many cases).

This retention of bureaucratese could be intentional, although we’re at a loss to understand why.

More likely, we suspect that the language hangs on because no one at the Commission has read it lately or, if they have read it, they didn’t think to question its current substantive vitality (or lack thereof). And apparently, when it comes to PRA notices, nobody up the review chain thought to read and/or question it, either. And nobody outside the FCC who might have read any of the PRA notices that included this language years after its sell-by date seems to have taken note of it.

Which raises the question: if little or no thought is given to their preparation, and nobody (other than us, of course) reads them, and if comments that do get filed in response to them seem to be ignored, why bother to publish PRA notices in the first place? What real purpose do they serve? The PRA was intended to reduce the voluminous paperwork burdens that then plagued the public. Despite the PRA’s intended goal, those burdens seem only to have grown since the PRA was enacted. While it’s easy to suppose that things might be even worse but for the restraining effect of the PRA over the years, do we have any reason to believe that that supposition is true?

To be sure, the PRA might – we emphasize might – make sense if it caused anyone to give real thought to particular information collections and whether those collections actually serve any useful purpose, how they might be streamlined or otherwise improved, how some of their burden might be lifted. But there’s very little evidence that that’s the way it works. Instead the PRA process has morphed into a rote drill that, it appears, nobody – agency personnel who prepare PRA notices or members of the public to whom they are theoretically directed – pays much attention to.

Meanwhile, the PRA process chugs along, generating hundreds or thousands of largely unread notices whose content may or may not be valid.

Paperwork reduction indeed.

Update: Forms 314, 315 Revised To Reflect "Tribal Priority" Policies

New certifications for radio assignment/transfer applicants

Over the last couple of years, the Commission has, in its “Rural Radio” proceeding, taken steps to facilitate the acquisition, by Native American Tribes, of radio broadcast stations designed to serve primarily Tribal Lands. (You can read about some of those steps here, here and here.) The most recent of those steps were taken late last year but, as we reported last January, they did not all become effective then because of the Paperwork Reduction Act. Now, at long last, the Commission has announced that the Office of Management and Budget has approved some relatively modest changes to FCC Forms 314 and 315. Those changes should assist in the implementation of the service-to-Tribal-Lands initiative by requiring certifications concerning whether the station to be assigned (through FCC Form 314) or transferred (through FCC Form 315) is subject to “Tribal Priority” restrictions. The revised forms are in effect as of December 4, 2012.

OMB OK on FM Translator Application Culling

Meanwhile, back at the FM translator application backlog . . .

In March, the Commission announced the process by which the pile of several thousand FM translator applications, still pending since the infamous 2003 filing window, would be trimmed down. (You can read the Commission’s full 35-page – not including appendices – decision here, or our punchy, far more abbreviated recap of it here.) As we reported in May, the process by which the Commission intends to thin the herd involves “information collections” (as they are known in Paperwork Reduction Act parlance). Such collections must be approved by the Office of Management and Budget (OMB) before they can be implemented.

According to a notice published in the Federal Register, OMB has given its thumbs up to the Commission’s process.  (The imprimatur was technically handed down on July 24.) This clears the way for the FCC to get the culling started. Look for a public notice in the near future setting deadlines and the like. The Commission has been under considerable pressure to move things along on the LPFM front, and clearing the FM translator backlog is an essential first step. Because of that, we won’t be surprised if things start to happen pretty fast at this point. Folks with FM translator applications pending from the 2003 window should familiarize themselves with the FCC’s process as outlined back in March (if they haven’t done so already), determine how that process affects their applications, and be prepared to act in short order. Check back here for updates.

Update: Effective Date Set For Refinements in Tribal Priority Process

Commercial FM channel preference policy established in Rural Radio proceeding kicks in July 2.

In January we reported on the release of the Third Report and Order (3rd R&O) in the long-running Rural Radio proceeding. That’s the decision that created a short-cut available to Native American Tribes seeking new commercial FM stations primarily serving Tribal Lands. (As used by the Commission, “Tribes” is a collective term referring to federally-recognized Native American Tribes and Alaska Native Villages.) We're pleased to report that the revised versions of Section 73.3573 and Form 301 adopted in the 3rd R&O have received OMB’s seal of Paperwork Reduction Act approval. It says so right here in the Federal Register. And according to that notice, the revised rule and related form will become effective on July 2, 2012.

Update: FCC Invites PRA Comments on FM Translator Dismissal/Amendment Process

The Great FM Translator Application Purge has moved one step closer: the FCC has formally initiated the Paperwork Reduction Act (PRA) process which must be completed before the “information collection” aspects of the herd thinning measures can be implemented. With respect to the several thousand new FM translator applications still pending since 2003, the new rules adopted last March in the Fourth Report and Order (4th R&O) impose application caps of (a) 50 nationwide and (b) one in each of the 156 markets identified in Appendix A of the 4th R&O. Any applicant with more than 50 apps nationwide and/or more than one app in any of the listed markets must dismiss enough applications to bring themselves under the limits. The letters necessary to seek those dismissals constitute “information collections” subject to the PRA.

Additionally, the 4th R&O affords pending FM translator applicants some limited opportunities to amend their applications. Those amendments, too, are “information collections”.

With its notice in the Federal Register, the Commission has invited the usual PRA comments on both aspects.  We'd like to be able to tell you exactly what the "information collections" actually look like, but the notice doesn't contain any examples.  Instead, it provides instructions for how to find copies on the OMB website -- but when we tried to follow those instructions, we came up empty.  Ideally this problem will be corrected before comments are due.

And speaking of the due date, anyone so inclined has until June 29, 2011 to submit comments to the Commission. After that, the Commission will bundle up all comments received and ship them over to the Office of Management and Budget, which will open its own 30-day comment period. After that, look for a notice that OMB has approved the process, which will clear the way for the Commission to open its doors for dismissals/amendments. If things move smoothly, it looks like those doors might swing open toward the end of the summer. (Check back here for updates.)

While we would like to say that the PRA process gives everyone a meaningful opportunity to affect the course of FCC regulations, recent experience suggests that that might not be entirely accurate. Still, the invitation for comments has been issued, and we’d be remiss if we didn’t pass the word along.

Rural Radio: Tribal Applicants Finally Moving to the Head of Some (but not all) Lines

FCC adopts process to assure that Native American tribes get first dibs on commercial FM channels allotted pursuant to Tribal Priorities

For nearly three years the Commission has been working to develop mechanisms to promote new radio stations serving Native Americans. The process has been gradual, to say the least. Starting in 2009 with a proposal to create a Section 307(b) priority for Native Americans, the Commission has taken a series of steps looking to facilitate the entry of “Tribes” (a collective term used by the FCC to refer to federally-recognized Native American Tribes and Alaska Native Villages) into the ranks of broadcast owners.

In the closing days of 2011 the Commission took one more step in that process by creating a short-cut available to Tribes seeking new commercial FM stations primarily serving Tribal Lands. The new approach – which might also create opportunities for non-Tribal entrepreneurs willing to work with Tribal applicants in certain capacities – is designed to assure Tribal applicants the first opportunity to apply for such stations, free from competition from non-Tribal applicants. But the path blazed by the Commission imposes its own considerable set of hurdles.

The short-cut was necessitated by the fact that the allotment process for commercial FM channels is different from the process for allotting AM or noncommercial FM channels. For AMs and noncom FMs, a party who identifies the availability of a channel can get a lock on the channel simply by filing an application for it. In the case of commercial FM channels, on the other hand, the first step in the process merely allots the channel; after that, the channel is made available to the highest bidder at an auction, regardless of whether that highest bidder is a Tribe. 

And there’s the problem.

If the goal is to assure that Tribes get first dibs on channels serving Tribal members, the Commission had to figure out how to keep that particular class of FM channel off the auction block long enough to give Tribes first crack. (To be clear, that “particular class” of channels includes channels allotted according to the “Tribal Priority” adopted in 2010. Fuzzy on the details of the “Tribal Priority”? Check out our 2010 post for background.)

Here’s what the Commission has come up with:

After a Tribal Allotment – i.e., a channel allotted pursuant to a Tribal Priority – is made, the FCC will open a Threshold Qualifications (TQ) Window. During the TQ Window, any Tribe or Tribally-controlled entity can apply for the allotment. The applicant would have to satisfy the Tribal Priority factors underlying that particular Tribal Allotment. The relevant factors are numerous (stick with me, this gets a little complicated): 

  • The applicant is either a federally recognized Tribe or Tribal consortium, or an entity owned or controlled 51% or more by a Tribe or Tribes.
  • At least a portion of Tribal lands within the proposed city-grade (70 dBu) contour must be those of the Tribe or Tribes holding at least 51% ownership or control of the applicant.
  • At least 50% of the area within the proposed city-grade contour is Tribal Land of the applicant Tribe or, alternatively, the city-grade contour (a) covers 50% or more the applicant’s Tribal Lands, (b) serves at least 2,000 people living on Tribal Lands, and (c) the population on Tribal Lands within the proposed 60 dBu (yes, the 60 dBu) contour constitutes at least 50% of the total population covered.
  • The proposed station’s city-grade contour does not cover 50% or more of the Tribal Lands of a Tribe that is not a party to the application.
  • The proposed community of license is located on Tribal Lands.
  • The proposed station constitutes a first or second reception service or a first local Tribe-owned commercial station at the proposed community of license.

Careful readers will have noted that those criteria would exclude any Tribe that lacks Tribal Lands – and there are a significant number of Tribes in that position. No problem: the Commission will entertain waivers of the Tribal Lands coverage requirements if a particular geographical portion of the station’s proposed coverage area is identified with a Tribe that is a party to the application.

If only one acceptable application is filed during the TQ Window, that applicant will get the station. If two or more acceptable applications are filed, the Commission will establish a period during which the applicants may negotiate a settlement or a merger.  (Caution: Engineering settlements that would result in more than one application being granted won’t be allowed.)

If no settlement or merger is reached, the allotment will be auctioned, but only those applicants accepted during the TQ Window and the original proponent of the Tribal Allotment will be allowed to bid.  The winner will need to file a Form 301 or, in the case of the original proponent, go forward with the Form 301 it filed with its allotment proposal.

In the event no qualifying party files during the TQ Window and the Tribal Allotment proponent asks that its pending Form 301 not be immediately processed, the Tribal Allotment will be set for auction. But the first time that allotment is offered at auction, only applicants meeting the Tribal Priority criteria for the allotment will be allowed to bid.

If no qualifying party bids on the Tribal Allotment in that first auction, at the next auction in which that allotment is offered, any applicant – whether or not a Tribe or Tribal entity – may bid.

Any license issued for a Tribal Allotment – whether through grant of a singleton application or following an auction – will be subject to a holding period. For four years after the station goes on the air, it may not be assigned or transferred unless the party that would get the station also could have qualified for the Tribal Priority under which this particular Tribal Allotment was awarded.

Interestingly, the newly adopted process will allow non-Tribal parties to partner with qualifying Tribes to go after new FM allotments – provided that the qualifying Tribe or Tribal consortium retains 51% ownership or control of the applicant entity. It remains to be seen whether non-Tribal entrepreneurs will find such partnering opportunities attractive.  And in view of the major league restrictions that characterize the entire Tribal Allotment process, it also remains to be seen whether very many of these allotments will come into being in the first place.

But one thing is clear: the Commission has committed itself to promoting broadcast ownership by, and broadcast service for, Native Americans. And more importantly, the Commission has acted – slowly, perhaps, but still aggressively – to make good on that commitment.

[While the FCC has formally adopted the new process for dealing with commercial FM Tribal Allotments, that process is not yet in effect: thanks to our old friend, the Paperwork Reduction Act, the process needs to be blessed by OMB before it can kick in. We’ll let you know when that happens.]

Update: TV Pickup Station Registration Requirement Out for Initial PRA Comments

Last August, in connection with its review of wireless backhaul regulation, the Commission announced that folks holding TV pickup licenses in the 6875-7125 MHz and 12700-13200 MHz bands would be required to register their stationary receive-only sites in the Commission’s Universal Licensing System (ULS). (You can read our report about the wireless backhaul overhaul here.) That new registration requirement, set out in Section 74.605 of the Commission's rules, has not yet kicked in – as with so many things, it’s subject to the Paperwork Reduction Act (PRA), so it needs the thumbs-up from OMB before it can take effect. And that thumbs up is still probably at least 90 days away, since the FCC has only just now started the PRA drill, which normally mandates an initial 60-day comment period at the FCC and a separate, follow-up 30-day comment period at OMB. 

In a notice published in the Federal Register, the Commission has gotten the ball rolling by requesting PRA-based comments on the ULS registration requirement for TV pickup stations in the 6875-7125 MHz and 12700-13200 MHz bands. Comments are due to be filed with the Commission by January 27, 2012. After that, it’ll be on to OMB.  (Note: the Federal Register notice refers at one point to Section 74.405.  Don't be fooled.  That appears to be the kind of typo anybody can make.  We're all talking about 74.605 here.)

OMB: Thumbs Up for Net Neutrality Provisions

After months of quiescence, net neutrality is on the move

The net neutrality rules have cruised past another hurdle: the Office of Management and Budget (OMB) has approved the two “information collection” aspects of the “open Internet” rules that the FCC shipped over there last July (as required by the Paperwork Reduction Act). While OMB approved those aspects almost two weeks ago (on September 9), the official announcement of the approval didn’t make it into the Federal Register until September 21.

OMB approval often marks the end of the rulemaking process in many instances; not so here. New rules generally cannot take effect until their full text has been published in the Federal Register. In many other rulemakings, the Commission takes care of that full-text publication first, and then follows up with getting OMB approval for any incidental “information collections” that may be involved.  As a result, OMB approval of such collections is often the last development in the rulemaking process.

It hasn’t gone down that way with net neutrality.

Instead, the Commission went first to OMB to get preliminary clearance for the “information collection” components of the rules. Meanwhile, the FCC has held tight onto the full text of the rules. While that approach has prevented the net neutrality rules from taking effect, it has also prevented any would-be challengers from seeking judicial review of the rules. Federal Register publication of new rules is the starting gun for the appellate process. Until that publication happens, the courts don’t get involved. (Verizon was reminded of that when its initial appeal was tossed by the D.C. Circuit as premature.) 

According to various trade press reports, the Commission has sent the full text of the rules to the Government Printing Office for publication in the Register in the next couple of weeks. (Note that we heard similar reports months ago and they didn’t pan out – so you might not want to bet the farm on this.) Once the rules are published, we can expect a stampede of appellate litigators heading toward their preferred U.S. Court of Appeals. (Any of the federal circuit courts of appeals are permitted to take this kind of case.) The smart money figures that petitions for review will be filed with a number of circuits. When that happens, the courts draw straws to decide which court gets it. That’s an oversimplification, of course – they don’t draw straws; they pull an entry out of a drum. Actually, the various cases are referred to the Judicial Panel on Multidistrict Litigation, which then does indeed pull a lucky entry out of a drum to determine which court gets the case. (The Commission has released a detailed notice explaining how to assure proper participation in such a lottery.)

In any event, after months of quiescence, it looks like net neutrality is on the move. Check back here for updates.

Update: Public Inspection File Inquiry Arrives at OMB

The FCC digs its regulatory heels in.

We have movement on the local public inspection file front!

The proceeding the FCC kicked off last April – inquiring into (among other things) whether there really is any need for the public inspection file requirements of Sections 73.3526 and 73.3527 – has now been bucked over to the Office of Management and Budget. This opens up one final 30-day period during which comments on the requirements may be submitted (to OMB). The deadline for comments is September 15, 2011.

Why another round of comments? It’s all part of the Paperwork Reduction Act (PRA) process. In PRA parlance, the public file requirements constitute “information collections”. Because of that, the FCC can’t impose those rules without approval from OMB, which approval can extend for no more than three years. Once the three-year clock tolls, the FCC’s got to go back to OMB and request an extension of the previously-issued approval if the FCC wants to keep the requirements in place. As part of that extension process, the FCC must: (a) give everybody a 60-day opportunity to submit comments to the Commission; (b) review those comments and prepare a “supporting statement” addressing the comments; and (c) ship the comments and its supporting statement to OMB. Then OMB must provide a 30-day comment opportunity of its own. That’s where we are right now.

If you want to read the FCC’s supporting statement, you can find it at the OMB’s website, or you can click here. We’ll address some of its highlights below. In addition to the supporting statement, the Commission has posted a downloadable Zip file containing approximately 516 comments that were filed.  (To get to that file, click on the link in the previous sentence and scroll down to the "Public Inspection File Comments" link.)  Don’t be daunted by that number – more than 90% consist of the same 191-word four-paragraph letter urging the FCC to retain the public file requirements. (While we suppose that it’s theoretically possible that 470+ individuals may have independently come up with precisely the same combination of 191 words in precisely the same order, we suspect it more likely that some form of AstroTurf® operation may have been at work here. Not that there’s anything wrong with that . . .) We’ll get to those letters, too.

Mixed in with the robo-comments are 30+ comments mainly from broadcasters and state broadcast associations. They generally oppose the continued imposition of all or most of the public file requirements.

Let’s take a look at the FCC’s supporting statement first.

As appears to be par for the course for such statements, this one bears no signature or other attribution to any particular official or office within the Commission. Such anonymity seems strange in this day and age of Transparency and Accountability. But OMB doesn’t seem to care, so why should we?

In its statement, the Commission is supposed to explain why this particular “information collection” is “necessary”. As far as we can tell, the Commission never gets around to doing that. Oh sure, it rambles on about how the public file “allows the public to monitor [broadcasters’] public interest performance”, and how “public participation is a key component of the broadcast license renewal system”. It claims that the public file “allows the public to meaningfully participate in the [license] renewal process”, and moans that the “citizens’ role in the licensing process would be diminished” without, in particular, the issues/programs list aspect of the rules.

But the PRA doesn’t ask the Commission to describe how a rule might be useful; rather, it requires the Commission to “include an explanation of how the agency has used the information that it has collected” (those are our italics, not the PRA’s). So let’s get past the platitudes and look at the actual historical record. As we pointed out in comments filed on behalf of a number of FHH clients (yup, you can find them in the FCC’s Zip file), the FCC has had decades of experience with the broadcast renewal process and the public file rules. Those rules have been in their current form for about 25 years. Do the math: that’s at least three full license renewal cycles for all 12,000–15,000 broadcast licenses, for a total of about 40,000 separate license renewals. And yet, as far as we know, the availability of materials in public files has not led to any denials of renewal – or otherwise factored meaningfully – in any of those 40,000 or so instances. That should not be surprising, since (according to the broadcasters who commented) no members of the public ever actually inspect the public files.

So why exactly is the public file rule “necessary” to the Commission? The Commission doesn’t  say, probably because, after decades of experience, there is no reason to believe that the rule really is necessary.

Another thing the Commission is supposed to provide is an explanation of its estimates of the “burdens” and “costs” imposed by the rule. In its initial notice back in April, the Commission provided a bunch of numbers supposedly reflecting those estimates, but no explanation of how it arrived at those numbers. Several commenters pointed that out – only to be told, in the Commission’s supporting statement, that those commenters obviously didn’t understand what the Commission was doing. No kidding, Sherlock – but that lack of understanding arose from the fact that the FCC hadn’t bothered to explain its numbers. Unfortunately, nothing in the supporting statement sheds much more light on the genesis of the Commission’s figures. Suffice it to say, though, that the FCC is sticking by its position that stations generally devote between 100-200 hours a year to maintain their public files – although how the Commission gets to that number is still not explained – and that the cost of that burden is $0.

In general, it’s safe to say that the Commission does not appear to have been swayed by any of the comments urging abandonment of public file rule.

As for those commenters who supported retention of the rule – that would be the 470 or so like-minded folks who opted to use the scripted response and another dozen or so who ad-libbed independently – one thing can be said: while all those commenters wax eloquent about the incredible overriding importance of the public file, none of them provides any evidence to support their claims. If the public file really were an essential device to these folks, you’d think that at least some of them would have been able to provide specific illustrations of how they have historically used that device. Of course, since the FCC’s own records contain no such instances, it’s not surprising that the commenters came up empty-handed as well.

So the comments provide no indication at all that the public file requirement in fact has ever come into play in the FCC’s licensing activities. The Commission cites not even one case in which the agency’s exaggerated expectations for the file have ever intersected with reality. And the best that the supporting commenters can do is say that, gee, making broadcasters maintain public files is a swell idea, regardless of whether anybody ever looks at them. That doesn’t seem like a particularly compelling case for allowing the FCC to continue to impose those rules.

One interesting observation. The FCC’s materials were apparently submitted to OMB on August 16. The expiration date for the current OMB approval of the public file rules is September 30, 2011. So what? As it turns out, the PRA (that would be 44 U.S.C. §3507(h)(1)(B)) specifies that, if an agency wants an extension of an outstanding approval, the agency “shall” submit its extension request “no later than 60 days before the expiration” of that outstanding approval. So it looks like the FCC was a couple of weeks late with its submission to OMB. And since the PRA is a statute, the 60-day deadline it imposes is not something that could ordinarily be waived by a mere agency (i.e., the FCC or OMB). How the Commission’s apparent lateness may affect things remains to be seen.

The ball is now in OMB’s court.

Again, comments are due at OMB by September 15, 2011.

Rural Radio: Certification Requirements Now In Effect

If you’ve got a pending community-of-license application pending for an AM or FM station, you may be hearing from the FCC shortly

Last March (as we reported back then) the Commission took aggressive steps to stem the flow of radio stations away from rural areas and into urban areas. A central aspect of that action was a set of modified priorities by which the acceptability of proposed community-of-license changes by AM and FM applicants is to be assessed. The new priorities are to be applied to proposals for new and modified AM and FM facilities already in the pipeline as of the new policy’s adoption back in March, as well as all further such proposals (one exception: the new priorities won’t be applied to any still-pending new/major change AM applications filed during the Auction 84 window in 2006). In our earlier post we spelled out the details of the new priorities, including the overriding “Presumption” of service that serves as a cornerstone to the new approach. 

As we have reported since last March, the precise effective date of the new priorities has been a bit hazy. (Check out our follow-up posts here and here and here.) But never fear, the haze has now lifted.  The new priorities – complete with required certifications – have all formally taken effect as of July 19, 2011. This is thanks to (a) prompt and favorable review by OMB relative to the new allotment drill, and (b) publication of a Federal Register notice announcing OMB’s blessing.

The official effectiveness of the new priorities and related Presumption/certification requirements means that the Commission’s staff is now free to require pending applicants to demonstrate that they comply with the priorities and Presumption. Since the staff has been working with the new policies for some time already (hey, they’re the ones who cooked up the new priorities in the first place), the staff has a pretty good idea of which pending applications comply and which don’t – and we’re guessing that lots of those applications don’t. 

We understand that pending applicants may expect to receive “deficiency letters” in the not-too-distant future. These billets doux from the staff will be directed to any applicant whose currently pending showing fails to establish that the proposed change in community of license satisfies the new priorities. We’re guessing that the deficiency letter will afford the applicant an opportunity to demonstrate that its proposal does comply with the new allotment approach. Failure to make that showing will result in the dismissal of the application.

One other aspect of the new allotment priorities – creating a “tribal preference” designed to increase the number of radio stations owned by Native American tribes – has also now taken effect. That preference, though, is likely to have a greater impact on future applications than on many (if any) applications already in the pipeline.

Net Neutrality Lands at OMB

Next round of Paperwork Reduction Act review of the “open Internet” information collection requirements starts at OMB.

We have progress to report on the net neutrality front!  Well, sort of.

The Commission has shipped two “information collection” aspects of the “open Internet” rules over to the Office of Management and Budget for its review. Yes, we know that we expected the Commission was going to take care of this chore a couple of months ago – but let’s get past that. The fact is: OMB review of net neutrality has begun, as required by the Paperwork Reduction Act (PRA).

(If you’re confused about the whole OMB review process and how it fits into the plan to effectuate the net neutrality rules, check out our earlier post addressing such things.)

Interested parties may submit their comments on either the net neutrality formal complaint process and/or the mandatory disclosure of network management practices, performance and commercial terms of access. You can find directions on how to do so in the notices (linked in the preceding sentence) published in the Federal Register. This round of comments will go to OMB, rather than the Commission (which fielded the last round of such comments starting back in February). You’ve got until August 8, 2011 to fill the OMB in on your views.

When the PRA review process started back in February, we observed that the information the FCC had made available up to that point provided less than clear guidance about just what the various new net neutrality requirements will entail. The latest notices announcing OMB review don’t add anything – which means that would-be commenters are still flying at least somewhat blind.

Note that the Federal Register notices announcing this next step in the PRA process do NOT mean either that the net neutrality rules are now effective, or that they are now subject to judicial review. Before anybody will be able to appeal the new rules, those rules will have to be published in toto in the Federal Register. 

And before the new rules can be effective, they not only will have to have been published, they will also have to have been approved by OMB. That won’t happen before August 8 for sure – but it could happen very soon after that date, if OMB has no problem with the rules. We’ll keep you posted.

STELA Update V: Section 73.686(e) Now Effective

All you STELA watchers who have been waiting on tenterhooks for more than six months can now breathe easy: the Office of Management and Budget (OMB) has approved Section 73.686(e). As a result, that section has become effective as of June 30, 2011. For those of who may have lost track of all this, last November the Commission adopted amendments to its broadcast satellite rules as provided in the Satellite Television Extension and Localism Act of 2010 (STELA). Most of the rule changes became effective back in January. But Section 73.686(e), which addresses procedures for measuring the field strength of digital television signals, involved some “information collection” requirements which – thanks to the Paperwork Reduction Act – had to be reviewed by OMB before they could kick in. OMB has now blessed the FCC’s handiwork and, by notice in the Federal Register, the FCC has announced that Section 73.686(e) has become effective.

Reminder: Comments On Public Inspection File Rule Due By June 17

 A couple of months ago we reported that the FCC had quietly invited comments on whether its local public inspection file rule is really necessary.  The deadline for those comments is fast approaching: June 17, 2011.  If you have anything you might want to tell the FCC about that rule, now would be a good time to do it.

The Federal Register notice that contains the FCC’s invitation provides all the information you should need to get your comments on file.  All you need to do is write down what you have to say and email it to and Alternatively, we'd be happy to help out if you’d like. The specific questions the FCC has posed include:

  • Whether the public file rule is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility;
  • Whether the Commission’s estimate of the burden that rule imposes on broadscasters is accurate (our earlier post includes a table setting out the FCC’s various estimates);
  • Are there any ways to enhance the quality, utility, and clarity of the information collected;
  • Are there any ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and
  • Are there any ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

If you want our help in preparing comments on any of these questions, please let us know.

Note that while this is your last chance to tell the FCC how you feel, it’s not the absolute last chance you’ll get to comment on the public file rule.  Once June 17 comes and goes, the FCC will bundle up everything that gets submitted to it and ship the whole package over to the Office of Management and Budget, along with a separate memo from the FCC explaining how it proposes to proceed with the public file rule and why.  OMB will then provide everybody a chance to comment on that.

Update: New Rural Radio Certifications Out For Comment . . . Again

Those of you who have been monitoring the gestation of the Commission’s revised rural radio policies will be pleased to know that those policies have taken what could be their penultimate step toward formal effectiveness. You may recall that, back in March, the FCC invited comments (as required by the Paperwork Reduction Act) on the certification requirements newly-imposed by the revised policies. The deadline for those comments (which were to be filed with the Commission) was May 23. With that deadline having come and gone, the Commission is wasting no time: according to a public notice in the Federal Register, the FCC has now bundled the whole shebang up and shipped it over to the Office of Management and Budget for its look-see.   If and when OMB gives the new certification requirements the thumbs up, the Commission will be able to put them into effect.

This is your last chance to toss in your two cents’ worth on the new requirements. This time, though, you’ll have to direct your comments to the OMB. The deadline is June 27, 2011 – which means that we can probably expect the new certification requirements to kick in for real sometime in July or August. The Commission will presumably issue a notice to let us know when that happens.

Public Inspection File Rule: FCC Asks If It's Really Necessary

Thanks to Paperwork Reduction Act, public file rule now out for comment

Here’s a surprise! The FCC has invited comments on whether or not the local public inspection file requirement is really necessary. Since the Commission has assiduously ignored – for more than five years – a petition for rulemaking seeking the abolition of those requirements, this invitation should puzzle some and thrill others.

As it turns out, the obligations imposed by the public file rules constitute “information collections” (in the parlance of our old friend, the Paperwork Reduction Act), and we all know what that means: periodically (like every three years) the FCC must justify such requirements to the Office of Management and Budget. The current OMB approval is set to expire on September 30, 2011, which means that, if the Commission plans to keep those rules on the books, it’s got to re-justify the rules to OMB’s satisfaction. That process entails two opportunities for public comment stretching over at least 90 days. With less than 180 days to go before expiration, the FCC has now started that process.

Unlike other Commission proceedings that get kicked off with much fanfare – public notices, Commissioners hailing “vibrancy”, “robustness”, “transparency” and the like, maybe even a webcast or blog – this one is more like a stealth item wrapped in an invisibility cloak flying under the radar. So far all we’ve seen is a blander-than-bland Federal Register announcement

But that doesn’t mean that the party hasn’t started, so come on down.

The public file rule for commercial broadcast stations may be found in Section 73.3526; for noncommercial stations, it’s in Section 73.3527. (Two other sections relating to political files – 76.1701 (cable operators’) and 73.1943 (broadcasters’) – are also included in the Commission’s inquiry.) As the FCC sees it, public files provide members of the local audience a quick and direct way of monitoring broadcaster performance. 

According to many broadcasters, though, such files are largely if not totally ineffective and unnecessary, since (in the reported experience of many of those broadcasters) the public seldom if ever inspects the files. From that perspective, the requirement to maintain the files is an empty make-work exercise that serves no purpose . . . other than to provide the FCC with a way to collect tens (if not hundreds) of thousands of dollars in fines from folks who happen not to have dotted all their public file I’s and crossed all their public file T’s. Related gripe: the broadcast renewal application form requires licensees to rat themselves out with respect to such miscues, dramatically reducing any enforcement burden the FCC might otherwise encounter.

Among the questions on which the Commission is now inviting comment are:

(a) whether the public file rules are “necessary for the proper performance of the functions of the Commission, including whether the [collected] information shall have practical utility”; and

(b) the accuracy of the Commission’s burden estimate.

As to the first question, the FCC already has an inkling. In January, 2006, our old friend, communications attorney David Tillotson, filed a petition for reconsideration urging that the public file rules be eliminated. After four months (and, we understand, some pushing by Tillotson), the Commission assigned his petition a file number (RM-11332) and issued a public notice. Don’t remember that notice? That’s not a surprise, as it was another one of those stealth/invisible/under-the-radar items, tersely describing Tillotson’s proposal only as involving some unspecified “amendment” of the rules. (Here’s a link to it.)

But even with that lack of official drum-beating, the petition attracted more than 30 comments. Only three of those indicated any support at all for the existing rules (and one of those supporting commenters referred to the requirement as “a pathetic vestige”. With friends like that . . .). The opposing commenters were broadcasters – many with decades of experience in the industry – attesting to the fact that the public has historically shown virtually no interest in the public file.

As to the question of the FCC’s “burden estimate”, get set for a chuckle.

According to the Federal Register notice, the Commission calculates the “Estimated Time per Response” – which we understand to mean the total time that each broadcaster spends to assure compliance with the public file requirement – to be “2.5-109 hours”. The notice provides no breakdown of those numbers; indeed, it doesn’t even indicate whether the time estimate involves weekly, monthly or annual increments. But back in 2008, the FCC provided OMB with this relatively detailed set of estimated annual burdens:



Hourly Burden

Local Public Inspection Files:

     (1) General Maintenance

           Commercial Radio Stations

       52 hours

           Noncommercial Education Radio Stations

     104 hours

           Commercial TV Stations

       57 hours

           Noncommercial Educational TV Stations

      109 hours


     (2) Community Issue List

           Commercial Radio Stations

        52 hours

           Commercial TV Stations

        52 hours


     (3) Commercial Limits


           Commercial TV Stations

        26 hours


     (4) Must Carry/Retransmission Consent

           Noncommercial Educational TV stations

        50 hours

           Commercial TV Stations

        50 hours


     Political Files:


           Commercial Radio

           6.25 hours

           Noncommercial Educational Radio Stations

           6.25 hours

           Commercial TV Stations

           6.25 hours

           Noncommercial Educational TV Stations

           6.25 hours

            Low Power TV Stations

           6.25 hours

            Low Power FM Stations

           6.25 hours

           Cable Systems

           2.5 hours






























So the “2.5 hour” low-end estimate presumably relates only to cable systems. In the 2008 estimates full power broadcast stations all clocked in at least 110.25 hours per year – exceeding the FCC’s current stated high-end estimate of 109 hours. And that’s just for radio stations. If our math is right, the estimated burden for commercial TV stations in 2008 was 191.25 hours.

The PRA rules provide that an agency’s burden estimate must be “specific” and “objectively supported”. Since the 2011 notice provides no real detail about the provenance of its estimates, we can’t say whether it meets those criteria. But the public file requirements haven’t changed substantially since 2008, and our guess is that FCC’s 2011 time estimates are based on the same calculations as the 2008 estimates above. (That guess is bolstered, at least in our minds, by the fact that the Commission’s 2011 estimate of “total annual burden” is 1,831,706, which just so happens to be the identical seven-digit figure it came up with in 2008. Coincidence? We think not. By the way, while the 2011 notice does not indicate what unit the FCC might be talking about there – 1,831,706 days? pieces of paper? monkeys with typewriters? holes to fill the Albert Hall? – the 2008 report to OMB makes clear that that refers to hours.)

This, of course, is not the first time we have seen such an extravagant – and risible – time estimate from the Commission.  But the real punch line is the Commission’s estimate of the “Total Annual Cost”, which we understand to mean how much it should cost the regulated party to comply with the rule. According to the FCC, that would be (get ready for it): “None”. (Note that the Commission’s notice is not a model of clarity, so it’s possible that the “Total Annual Cost” here does not refer to the cost to the regulated party – but, if not, then who does it refer to?)

As with its time estimates, the current Federal Register announcement gives us no breakdown or explanation for this cost estimate. But again, the FCC’s 2008 submission to OMB is instructive. There, using the “hourly burden” estimates indicated above, the Commission calculated that the “Total Annual ‘In-house’ Cost” comes to $37,469,148Yet even then, the Commission still concluded that the “Annual Cost Burden” would be “none”.

There is obviously considerable room for clarification by the FCC on all this.

The public file rule might serve some valid purpose – but, since the Commission has never done anything to investigate the validity of that proposition, nobody can say for sure. Given the fact that the Tillotson petition has been stuck in (or perhaps behind) some bureaucratic drawer for five years already, we can probably assume that the FCC is not enthusiastic about launching such an investigation on its own.

But the Paperwork Reduction Act requires the Commission to justify these rules, so like it or not, the FCC has got to invite and, theoretically, consider comments about them: do they serve a useful purpose, are the FCC’s burden estimates valid and, if so, does the supposedly useful purpose justify the supposedly valid burdens? More importantly, the Commission must satisfy the OMB that the FCC’s assessment is correct.

In other words, anyone who has any thoughts about the public file should take advantage of this opportunity to articulate them to the FCC. The Commission will be accepting comments through June 17, 2011. After that, the Commission will bundle up any and all comments submitted and send them over to OMB, along with a statement in support of the rules (assuming that the Commission is not persuaded by the comments to drop the rules entirely). OMB will then provide an additional 30-day comment period.  If OMB declines to approve the rules, the FCC will be unable to enforce them.

Update: Effective Date Of New Rural Radio Rules Set

But what about the new Section 307(b) policies?

The Second Report and Order (Second R&O) in the rural radio proceeding has been published in the Federal Register. According to the notice as it appeared in the Register, the new rules will become effective on May 6, 2011, except for newly-revised Section 73.7000. (That section, which relates primarily to Native American Tribal factors, entails certain “information collections” that must first be approved by the Office of Management and Budget (OMB).)

For many broadcasters, though, the real attention-grabber of the Second R&O was not the rule changes it effected, but rather its overhaul of Section 307(b) policies. Perhaps even more important were the new certification requirements imposed on community-of-license-change proponents as a result of that overhaul.

So the real questions are: when do the new Section 307(b) policies become effective, and when will pending proposals have to be amended to include the new 307(b) certifications?

The answer to the latter question is a piece of cake. Since the new certifications constitute “information collections” subject to the Paperwork Reduction Act (PRA), they must go through the standard PRA drill. We noted this back when the Second R&O was first released, and we followed up with a report on the official commencement of the PRA process in March.

But what about the underlying 307(b) policies? Are they in effect now or not? 

The answer to that isn’t clear.

That's because the Federal Register publication makes no reference to any effective date for the policies.  Oops.  As a practical matter, though, the precise effective date of the new policies is probably immaterial. Even if the policies are not now in effect, the Audio Division’s processing staff is not likely to take any actions inconsistent with the announced policies. So if you’ve got an application on file that will clearly not make the grade once it comes time to file the new 307(b) certifications, you probably shouldn’t hold out any hope of a grant between now and then.

But let’s look on the bright side. If you’ve got an application pending that is (or should be) grantable under the new policies, do you have to wait for the certifications to clear the OMB PRA review process before you can expect action? Good news. The answer is that you can probably file your certifications now as an amendment to your application. You can use the Second R&O as a guide relative to the analyses you would need to perform in order to support a proper certification. Include a request that the staff go ahead and process the application. We understand that, given those circumstances, the Audio Division may be inclined to move things along now rather than wait for completion of OMB review. 

Of course, the number of applicants able to take advantage of this opportunity is probably pretty limited, but if there are any, they may wish to act now.

FCC To Applicants: What's Taking You So Long?

Application form can be completed in less than two-tenths of a second, FCC estimates

The hilariously named “Paperwork Reduction Act” (PRA) requires the FCC, like other agencies, to publish estimates every three years about the information it collects, and to invite comments on their accuracy. Needless to say this procedure vastly increases paperwork, rather than reducing it, but here in Washington we have become inured to these little inconsistencies.

A PRA notice typically estimates how many people have to fill out a form, how long it takes them, and the total cost to the economy. For example, the PRA notice for the federal income tax forms estimates that 143.4 million taxpayers spend an average of 19 hours filling out forms at a total cost of $31.5 billion dollars. (From, this, we deduce that the Government figures our weekend and evening time is worth $11.56 per hour.)

Here at the law office, we look over the PRA notices coming out of the FCC for any that might interest our clients. A recent one caught our eye.  According to the FCC, if you apply for a low-power FM construction permit, filling out the required form (that would be Form 318) will take you between 0.0025 minutes and 12 hours – anywhere from one-seventh of a second to half a day.  (Don't believe us?  Check out the top of the middle column on page 16774.)

That's quite a range. We are pretty good with FCC forms – we do a lot of them – but one-seventh of a second is remarkable even by our standards. Assuming this is not a typo (the Federal Government never makes mistakes), we can think of only one possible explanation. The FCC must have a secret short-cut for filling out these forms in a flash. We wish they’d let the rest of us in on it.

Update: New Rural Radio Certifications Out For Comment

New “information collection” requirements for AM/FM change-of-community applications to undergo Paperwork Reduction Act review before taking effect

A couple of weeks ago we described the FCC’s revised approach to proposed changes in the communities of AM and FM stations and allotments. As we noted, the Commission’s Second Report and Order (Second R&O) indicated that that new approach would become effective upon publication of the Second R&O in the Federal Register. But that estimation seemed a bit at odds with reality – or, more specifically, with the Paperwork Reduction Act (PRA), which requires that most new “information collections” be run past the Office of Management and Budget. (We pointed that out, too.)

And sure enough, the Commission has now signaled that the new change-of-community showings do indeed need to be approved by OMB. This may slow the implementation of the revised policies, if only because OMB approval normally adds at least 90 days to the process. Since the new policies will apply to all change-of-community applications pending as of the release of the Second R&O (i.e., March 3, 2011), that delay could be an annoyance for folks whose applications may be stuck in the queue. It remains to be seen whether the Commission’s staff will be inclined to find some way to implement the new standards any earlier.

Often, when the FCC imposes a new “information collection”, it involves a new, or revised, application form. Here the Commission is asking for comments on the instructions to Form 301, even though it has not changed any questions on the form or added any new questions. According to the latest notice, the revised form will lay out, in updated instructions, the certification requirements adopted in the Second R&O (and described in some detail in our earlier post here).

Anyone wishing to comment on the revised application requirements may do so until May 23, 2011. Comments should be limited to the following:

  • whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility;
  • the accuracy of the Commission's burden estimate (The Commission estimates that it will require somewhere between 1-6.25 hours, on average, to address the new requirements);
  • ways to enhance the quality, utility, and clarity of the information collected;
  • ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology, and
  • ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

Once the 60-day FCC comment period wraps up, the Commission will refer the matter to OMB, which will provide interested parties an additional 30-day comment period. Based on that time line, it’s likely that the new requirements won’t become effective until mid- to late summer, at the earliest.

STELA Update IV: Next Stop, OMB

If you’ve been paying attention to the inexorable march of the STELA amendments, you will recall that the rule changes adopted by the Commission last November (on an expedited basis, at Congress’s behest) took effect in December and January, EXCEPT for the new version of Section 73.686(e). That last piece of the puzzle involves the procedures for measuring the field strength of digital television signals. Because it involves an “information collection”, it’s got to go through the standard Paperwork Reduction Act (PRA) drill before it can become effective.

Step One in the drill: the FCC invites PRA-related comments on the revised rule. Step Two: the FCC bundles up the proposed rule with any comments that get filed and ships the package over to the Office of Management and Budget (OMB). Step Three: OMB invites more comments. Step Four (best case scenario, FCC-wise): OMB approves the new rules. Step Five: the FCC announces the approval, and the rule takes effect.

Where are we on Section 73.686(e)? Step One. In a notice in the Federal Register, the Commission has spread the word that comments on that proposal may be filed with the Commission until April 19, 2011. (If you’re keeping track, that means that that particular rule isn’t likely to take effect until June or thereabouts, at the earliest.)

Net Neutrality Update: Coming soon - OMB Review!

But effectiveness of the new rules is still months away, at least

The Commission’s Open Internet (a/k/a Net Neutrality) initiative has taken a tangible step forward with the announcement that the FCC is getting ready to ship two “information collection” aspects of the rules over to the Office of Management and Budget (OMB) for its review. But don’t hold your breath – it’ll take at least a couple of months to get there.

OMB review is mandated by our old friend, the Paperwork Reduction Act, which requires agencies to quantify and justify “information collection” burdens before imposing them on regulated industries or the public. The idea is that OMB may perceive regulatory excess that the FCC has somehow overlooked and slam the brakes on the process.

The two Net Neutrality information collections in question? First, there are the formal complaint procedures to be used to resolve “open Internet disputes” when other, less formal, means don’t do the trick. And second, we have the requirement that broadband providers disclose their network management practices. Unfortunately, the FCC’s Federal Register notices concerning its proposals afford no particular insight into just what the complaint and disclosure requirements will involve. That may complicate the task of preparing comments on the proposals.

But wait – doesn’t the Net Neutrality order itself fill in some of the gaps in the notices? Some, maybe . . . but not all.

The formal complaint process is addressed at Paragraphs 154-159 of the Net Neutrality order. The bottom line appears to be that a complainant is expected to “plead fully and with specificity the basis of its claims and to provide facts, supported when possible by documentation or affidavit, sufficient to establish a prima facie case of an open Internet violation.” The target of the complaint can then answer each claim in the complaint, “demonstrating the reasonableness of the challenged practice.” The complainant can then try to rebut that.

The network management practices disclosure requirement is covered in Paragraphs 56-61 of the order. There the Commission provides an extensive list of types of information that might be disclosed. But the FCC emphasizes that the list is “not necessarily exhaustive, nor is it a safe harbor.” Talk about wiggle room! And just how is the information to be disclosed? That, too, is a bit up in the air. It’s got to be posted on a “publicly available, easily accessible website”, and must also be provided at the point of sale. According to the Commission, “[c]urrent end users must be able to easily identify which disclosures apply to their service offering.” The Commission declined to specify any particular format for the disclosures.

In the Federal Register notice, the FCC summarizes the disclosure requirement as mandating disclosure of “accurate information regarding the network management practices, performance, and commercial terms of their broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.” A standard defined by what might be deemed (by whom? the FCC? the consumer?) “sufficient” to allow “consumers” to make “informed choices” doesn’t seem to be much of a “standard” in the traditional sense, but you never know.

So anyone inclined to file comments on either of these proposals may find it tricky to get a firm grip on precisely what burdens are likely to be involved here. (For the record, we asked the FCC if it could let us know what its proposed information collections would entail – above and beyond what is shown in the Federal Register notices. We were directed to the paragraphs of the order mentioned above, along with Appendices A and B to the order.)

What happens next?

Anyone who wants to comment on either (or both) of the proposals has two (count ‘em, two) opportunities to do so. First off, between now and April 11, you can submit comments to the Commission. According to the FCC’s notices, comments should address: 

(a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (b) the accuracy of the Commission’s burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

Once April 11 comes and goes, the Commission will package up any and all comments and ship them to OMB, along with its proposed information collections and a separate “supporting statement”. At that point, interested parties will have a 30-day opportunity to let OMB know what they think. The Commission will then have a chance to respond to any incoming comments and/or questions that OMB might pose. Its response may include revising either or both proposals. (Note – Neither OMB nor the FCC provides any public notice of any such post-comment period revisions. If you’re diligent, you should be able to find out about them by checking the OMB website on a daily basis . . . but that may prove an empty exercise, since OMB affords no formal opportunity to comment on any such on-the-fly revisions.) 

Once OMB is satisfied that the FCC’s proposals are consistent with the Paperwork Reduction Act, OMB will issue its approval. That approval will be formally announced in the Federal Register and, 60 days after that announcement, all of the Open Internet rules adopted last December are set to become effective.

So even in the fastest scenario – where the FCC would send its proposals to OMB immediately after the close of the April 11 comment period, and OMB would in turn approve the proposals immediately after the close of its own 30-day comment period, and the announcement of that approval would be published instantaneously with the issuance of the approval – we’re still looking at 120 days at the very least before the Net Neutrality rules can be expected to take effect.

One more timing consideration. Within a matter of days, if trade press reports are to be believed, the Commission should be publishing the Open Internet order itself in the Federal Register. That publication will mark the opening of a 60-day period during which petitions for review of the order may be filed pursuant to Section 402(a) of the Communications Act. Two appeals of the order have already been filed pursuant to Section 402(b), although the FCC has moved to dismiss both of them. In any event, it is virtually certain that some parties – and maybe a lot of parties – will be seeking judicial review of the order before the rules become effective. Should a reviewing court conclude that a stay of the rules is warranted, the effective date could be pushed back indefinitely.

FCC Proposes Onerous Wireless Renewal Requirements

Applicants would have to track down and turn over multiple documents – all of which the FCC already has.

Wireless licensees take note: the FCC has proposed changes to its renewal procedures, changes that could mean a lot of extra work for you, with little clear public benefit. 

The Commission is proposing to require wireless licensees to submit, along with their renewal applications, copies of all FCC orders finding a violation or apparent violation issued with respect to the licensee during the license term, whether or not the violation(s) (or alleged violation(s)) relate to the license being renewed – and whether or not a violation was ultimately found. That’s right – the FCC wants more copies of its own documents. It also wants a list of petitions to deny filed for any reason against any application submitted by the licensee – again, even applications involving licenses that are not part of the subject renewal application.

But wait. It gets worse.

Not only would the licensee/renewal applicant have to produce its own documents, it would have to track down and turn over a similar universe of documents for each of its “affiliates” – “affiliates” not just in the usual sense of “under common control or management”, but in the very broad sense of sharing facilities, participating in joint venture arrangements, or even just having contractual relationships. (For all the unpleasant details, check out the definition of “affiliate” in Section 1.2110 (c)(5) of the FCC’s rules.) This broad definition normally applies in auctions, to avoid competitive bidding credits going to undeserving entities. It does not fit well in the renewal context, where the point is to assess the qualifications of the licensee, not entities that it can’t control. 

Worse, the proposed document production exercise would repeat each time any license held by the applicant and any of its affiliated entities comes up for renewal. Especially for larger entities, the procedure would result in a cascade of repeated document productions, in some cases involving hundreds of affiliates and thousands of licenses. No wonder AT&T and Sprint are worried. This type of due diligence is no cakewalk for smaller entities either, who will have fewer resources to put towards compiling the required information. 

Expensive, time-consuming – and probably unlawful.   The federal Paperwork Reduction Act (yes, it’s hard to tell, but there really is one) bars governmental agencies from requiring the filing of “unnecessarily duplicative” information otherwise reasonably accessible to the FCC. All of the requested paper is already in the FCC’s own files. If that isn’t unnecessarily duplicative, then nothing is.

After all that, if the Commission finds an applicant’s submission to be “insufficient”, the Commission will deny the application. Don’t ask us what “insufficient” means – the FCC isn’t saying. Apparently, like Justice Stewart in Jacobellis v. Ohio, it will know it when it sees it. Given that people’s livelihoods can be at stake, we expect a better articulation of what the Commission is looking for. We think the Administrative Procedures Act expects the same.

Reply comments about the proposed rule changes are due by August 23. The Commission will accept ex parte communications after that.

Paperwork Reduction Act Alive and Kicking

FCC to OMB: "No mas!"

One of the pleasant vestiges of 1980 is the Paperwork Reduction Act, a law intended to curb the excesses of federal regulatory agencies by mandating independent review of all new regulations which impose paperwork burdens on the public.  The idea was that agencies must quantify and justify such burdens before imposing them on regulated industries or the public.  The Office of Management and Budget (OMB) was appointed to be the final checkpoint on the regulatory assembly line to ensure that agencies were not overstepping.  This, of course, was in the era when "big gov'ment" was Public Enemy #1, and "paperwork" was a dirty word. 

There's obviously been some slippage since 1980 as the FCC has imposed burden after burden on the telecom industries, many of which involve considerable expense and reams of paperwork in the form of periodic reports or record-keeping.  The vast majority of these regs have been rubber-stamped with OMB approval.   (Ironically, the process actually increases the amount of paperwork generated by an agency as part of its justification of the paperwork it is imposing on others.)

That's why it was satisfying last week to see OMB manfully exercise a rare veto over an FCC rule.

Specifically, the FCC had adopted rules which imposed an obligation on the largest cellular carriers to maintain eight hours of emergency battery back-up at cell sites. (This was a knee-jerk reaction to difficulties encountered during Hurricane Katrina when many cell sites lost electrical power and could not operate for hours or days.)  The rule elicited howls of protest from the affected carriers who challenged the procedures used by the FCC in adopting the rules as well as the enormity of the burden which had rather casually been imposed.

The tenuousness of the FCC position was first confirmed when the reviewing court of appeals granted a stay of the rules -- an indication that it considered the appeal to have substantial merit. When it came time for oral argument, the Court suddenly became interested in the Paperwork Reduction Act. Since OMB had not yet signed off on the rules, the court decided that the case was not yet ripe for action.   If OMB ultimately rejected the rules, the Court reasoned, the Court would have wasted its time reviewing the substance of the rules -- and courts never decide cases if they don't have to. The case was therefore remanded to the FCC to await OMB action.  

It turns out that the Court's reticence was well-founded. OMB did reject the rules as being unjustifiably burdensome. While an agency can contest the OMB's determination, the FCC has decided not to do so. The rules are therefore ineffective unless and until the FCC revises them and justifies whatever burden is then created.  The FCC has now announced that it is throwing in the towel and going back to the drawing board on these rules, so the world is temporarily safe from battery back-up requirements.

The larger lesson here, though, is that the Paperwork Reduction Act remains a viable, if little used, salient in the public's thin defenses against the onslaught of federal regulation. This decision may invigorate the industry to aggressively challenge FCC regulations at the OMB level with the hope that somebody over there is now actually listening.

Form 355 and Website Public File Posting: Soon in the Crosshairs at OMB

Last November, the FCC announced that it had adopted a new "enhanced" programming report for TV licensees, and also that it would require TV licensees to post pretty much all of the local public files on their respective websites.  From March 13 until May 12, we all have an opportunity to send comments on the resulting paperwork to the FCC, which will then pass the comments on to the Office of Management and Budget (OMB) to let them how we feel about these new burdens.

OMB gets involved because the new reporting and website posting requirements are what the Federal government calls "information collection" activities.  Under the Paperwork Reduction Act, before an agency like the FCC can impose new information collection activities, it has to get OMB to bless them.  So the FCC has now had a notice published in the Federal Register to solicit comments related to the Paperwork Reduction Act, which then will be added to its own presentation and forwarded to OMB for its consideration.

We strongly encourage everyone to take advantage of this opportunity.  It is at least possible that a compelling showing of the extreme burdens imposed by the new FCC requirements could force the government to re-think them.

Technically, comments should address the need for the information to be collected, the accuracy of the Commission's estimate of the burden of the collection, ways to improve the information collection requirement, and ways to reduce the burden on respondents.  Any comments are due to be filed by May 12, 2008.

It seems to us that the Commission has grossly underestimated the burdens imposed by the new rules and overestimated the utility of the information to be collected and/or posted.  For example, the FCC's estimate of the time which would be required to complete Form 355 is rather fuzzy and shows significant costs to each station, costs which will be repeated quarterly - a fact which the FCC does not readily admit.  According to the Commission, filling out the form may take anywhere from 2.5 to 52 hours, a rather broad range to say the least.  The Commission has not explained how this new requirement will generate any more interest from the public, or otherwise promote the Commission's localism goals, any better than similar requirements in the past have done.  Taking the Commission's own estimate, the imposition of a new filing that could require more than a work week's time to complete should require some justification - and that's EVERY QUARTER!

If there are multiple comments from affected parties (i.e., television licensees) pointing out these flaws, the FCC might be forced to come up with some justification for its rules and to explain how the new burdens comport with the Paperwork Reduction Act.  The entertainment value alone of watching the FCC make this effort could be substantial, and a serious inquiry could even force some re-thinking.

For those inclined to try to get the FCC to reconsider outside of the OMB process, the March 13 Federal Register publication also establishes the deadline for filing petitions for reconsideration, and that deadline is now April 14, 2008.