The FCC Is Watching You . . . or At Least Your Website

Posted on September 2, 2011 by Anne Goodwin Crump

Media Bureau staff continues to check station websites for compliance

A couple-three years ago, we warned readers that the staff of the FCC’s Media Bureau appeared to be browsing the websites of broadcast stations, checking for compliance with the EEO rules. Actually the FCC staffers were then apparently checking for compliance with an imaginary EEO requirement that didn’t – and still doesn’t – exist, but the important take-home message was the same regardless: FCC staffers were inspecting broadcasters’ websites.

It appears that that practice continues.

Recently, an FCC staff member emailed us, questioning whether one of our clients had posted its annual EEO report on its website. (As noted below, the rules do require such posting.) The staffer reported that she had been unable to find the report on the site. Happily, we were able to confirm (and demonstrate) that the report had in fact been posted – albeit not necessarily in the most obvious place on the station’s site – and the staffer apparently went away satisfied.

But that encounter prompts us to remind broadcasters that their websites are wide-open for inspection by anybody, including FCC staffers.  And nowadays those staffers are apparently motivated to engage in such inspection in connection with the license renewal process, which is swinging into high gear. (Two batches of renewals have been filed already, with more to come at two-month intervals for the next few years.)

The Commission’s rules currently specify only one type of “public file” document that must be included on a station’s website (assuming, of course, that the station has elected to have a website): the licensee’s most recent annual EEO report, the specs for which may be found in Section 73.2080(c)(6) of the rules. (Obscure regulatory factoid: The public file rule technically still requires that DTV transition education reports – Form 388 – be posted on websites. However, since the retention period for those reports is only one year, and since all but a dozen or so TV stations completed their move to digital more than a year ago and thus no longer have to file Form 388, the continuing impact of that particular requirement is minimal at this point.)

Of course, stations with fewer than five full-time employees are exempt from the annual EEO report requirement. But if you are not exempt, and if you do have a website, it would be a good idea to be sure that your most recent EEO report is posted there. While the rule does not specify how prominently the report is to be posted, it would probably be a good idea to make it pretty darned easy to get to the report from the station’s home page. That should assist FCC staffers in locating the report at your site – thus enabling them to move on to somebody else’s site that much quicker.

Our recent interaction with the staff did not indicate that the FCC is looking to dole out fines to stations that don’t happen to have posted their reports as required. But you never know.

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Don't Look Now, But You're STILL Being Watched (Update II)

Posted on February 2, 2009 by Harry Cole

Last September we reported that FCC staffers were apparently sitting in the comfort of their cubicles in the Portals, checking out station websites to determine whether stations had posted their Form 397 EEO “Broadcast Mid-Term Report” on-line. After we did some checking, though, we updated that report to advise that, contrary to what had been told to us by a staffer, Form 397 is not required to be posted on the station’s website (although a copy is required to be placed in the station’s local public inspection file). This was confirmed by a supervisory FCC official, so we’re reasonably sure that it’s correct.

What, then, do we make of an email received from an FCC staffmember on January 30, 2009, with the subject line reading “Mid-Term Report (FCC Form 397)/[licensee name omitted here for obvious reasons]” and the content of which read, in its entirety, “A review of the above-noted stations' website shows that the 2007 public file report is still posted.  Please ask the licensee to upload the 2008 report by February 3, 2009.”

The body of the email seems to refer to an annual public file report, as opposed to the mid-term (i.e., quadrennial) Form 397, but the subject line expressly refers to Form 397.  We suspect that that latter reference is simply an error (although, in view of the very clear information we got from a senior Commission official last October, we’re not sure how that error could have crept back into the staff’s psyche).  But you never can tell.

By far the more ominous message here, though, is that the staff does appear still to be surfing around various broadcaster websites, checking for compliance.  Stations with websites should keep that in mind.  They should also keep in mind that the Commission’s rules currently specify only two types of “public file” documents that must be included on a station’s website (assuming, of course, that the station has elected to have a website in the first place):  the licensee’s annual EEO report (see Section 73.2080(c)(6)) and DTV Consumer Education Reports (FCC Form 388).  Back in November, 2007, the Commission technically adopted a requirement that TV licensees place, in effect, their compete public files on their websites, but that requirement has not yet become effective.

Big Brother may be watching you.
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Update: The FCC Is Not Watching You Anymore (or so they have told us)

Posted on October 7, 2008 by Harry Cole

Last month, in a blog posting about apparent FCC monitoring of station websites (to see if stations’ Form 397s – the mid-term EEO report – are being posted on those websites), we indicated that Form 397 is required to be posted on the website of each station required to submit a Form 397. That was based on what a Commission staffer informally told one of our colleagues. That staffer also advised that the staffer’s job activities include on-line checking on whether Form 397s have been posted on stations’ websites.

 We have since done some double- and triple-checking of our own, and as it turns out, the rules do not require Form 397 to be placed on a station’s website. No such requirement of website posting is imposed, implicitly or explicitly, by the public file rules (Section 73.3526 and 73.3527) or by the EEO rule (Section 73.2080). In fact, those rules don’t even require, explicitly or implicitly, that Form 397 be placed in the station’s hard-copy local public inspection file. While the instructions to Form 397 do explicitly state that a copy of the Form 397 “must be kept in the station’s public file”, those instructions say nothing about posting the Form 397 on the station’s website.

Still, as noted above and in our earlier posting, we were advised by the Commission’s staff that they understand that website posting of Form 397 is de rigueur and, moreover, that they are doing their own on-line spot-checks for compliance.

What to do?

We have contacted a senior FCC official whose responsibilities include EEO enforcement. He has confirmed our research: Form 397 is NOT required to be placed on any station’s website. He also assured us that, if there is any misunderstanding on that point among FCC staff, he will correct it right away.

Note that, even if monitoring for the presence of Form 397 stops (as we expect it will), the fact remains that FCC staffers can still visit station websites -- anonymously and long-distance -- to check out, f'rinstance, the on-line availability of annual EEO public file reports (which are required to be posted on station websites).  In other words, long-distance snooping may still go on -- it just won't involve the supposed violation of imaginary rules.  Licensees with websites should continue to maintain them in accordance with the rules that do exist, particularly since prying eyes may be watching . . .

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A Midsummer Surprise From The FCC: A Revised Version Of The Public and Broadcasting!!!

Posted on August 12, 2008 by Harry Cole

The Commission has released a new version of The Public and Broadcasting, revised as of July, 2008. All full-service radio and television licensees (commercial and noncommercial) and Class A television licensees should have a copy of this latest version in their local public inspection files. You can download a PDF copy from the Commission’s website, or we can send you a hard copy, if you would prefer. 

The fact that the Commission has revised its manual at this time comes as something of a surprise for a couple of reasons. First, the document had just been revised in April, 2008 – for the first time since 1999. Since nearly a decade had passed between revisions, a new update within three months of the April, 2008, revision was certainly not expected. 

Moreover, when the April, 2008, revision was issued, the Media Bureau released a public notice specifically alerting everyone to the availability of the new version. To the best of our knowledge, no such public notice heralded the release of the July, 2008, edition.

To be sure, the April, 2008, public notice included the following tip: 

The Media Bureau will periodically update “The Public and Broadcasting” to reflect pertinent developments in the law, providing the date of the update on the front cover of the publication. Licensees should check the Commission's website for the current version (at http://www.fcc.gov/mb/audio/decdoc/public_and_broadcasting.html) when they undertake regular updates of their public files. 

So the Bureau may now be expecting each licensee with a public file, as a part of the routine maintenance of that file, to check the FCC’s website for updates. Of course, the Commission hasn’t incorporated any such requirement into its rules, but that doesn’t appear to faze the Bureau. 

Despite the fact that the size of the PDF file currently comprising the July, 2008, version is nearly 100 times bigger than the PDF of the April, 2008, edition (an incredibly whopping 14 MB compared to the far more reasonable 190 kB), it does not appear that there are any major substantive changes in the new version. In fact, the only truly substantive addition appears to be a reference to the new Form 388 which full-service TV licensees are required to file to report on their efforts to educate the public about the DTV transition. (The new version also updates a couple of addresses for FCC contact people and makes a couple of very slight language changes which do not affect the overall substance of the information.) 

We suppose that we might applaud the FCC for being diligent about updating its own materials. But we can’t shake the notion that, when the Commission tinkers (and tinkering probably overstates what the FCC had done in this revision) with a document which EVERY FULL SERVICE LICENSEE is required to have in its public file, the Commission might want to think twice. At a minimum, the Commission should alert broadcasters of the availability of the revised edition. That alert should delineate the particular revisions being made, and might also advise affected licensees whether any earlier version will do the trick or, alternatively, whether it is absolutely essential to download the revised version. (Absent any contrary indication, the safest course will always be to download the latest and greatest, even if the new version does not materially differ from the older version.) And the Commission might also want to give thought to precisely what changes will warrant a whole new edition. 

Unfortunately, this may just be harbinger of what life will be like as the Commission wades deeper into the “localism” thicket: substanceless messing around with “localism”-oriented documents which have very little actual significance at the local level, but messing around which imposes a significant burden throughout the broadcast industry. 

We can only hope that, at a minimum, somebody at the Commission will eventually figure out how to reduce the file size of The Public and Broadcasting PDF so that it doesn’t clog up too many Internet connections during the download.
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New Version of Mandatory Public File Document Released

Posted on April 29, 2008 by Ron Whitworth

An updated version of "The Public and Broadcasting," a Commission publication which all broadcasters must place in their public inspection files, was released on April 24.  All broadcasters must replace the former version of the document with the revised version immediately and also must be prepared to provide copies to any member of the public who requests one.
 
The Commission also announced that it will provide two "Broadcast Information Specialists," one in the Media Bureau's Audio Division and the other in its Video Division, to serve as contact points for the public to answer questions regarding becoming involved in the Commission's processes.
 
Anyone with questions regarding the updated version of "The Public and Broadcasting" and/or other questions concerning local public file requirements are welcome to call their FHH attorney for more information.

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

Posted on March 13, 2008 by Anne Goodwin Crump

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.

 

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Public File Online, Main Studio Off-Line?

Posted on November 28, 2007 by Jeff Gee

In addition to the new program reporting requirements the FCC is imposing on TV licensees, the FCC is introducing a new requirement that TV licensees post their public files on their websites (if they have websites). This raises an intriguing question: if a station's public file is readily accessible online, should the station be required to maintain a "main studio"?

Once upon a time, a station's main studio was a focus of its identity, serving as the place where programming was originated and where the public could find the station's local public inspection file. The program origination requirement went away decades ago (the FCC still requires main studios have the ability to originate programming, but the rules no longer require stations to use that ability). Nevertheless, the FCC held onto the public file requirement - possibly because the existence of the public file rule appeared to convince a skeptical appeals court to uphold the FCC's deregulation of radio and TV in the 1980s. The idea was that the local availability of a public file would provide members of the local audience important information that would empower them to act as "private attorneys-general" - bringing sub-par performance to the Commission's attention at renewal time.

But now that TV public files will be available online, what regulatory purpose is served by a "main studio"? After all, members of the public will be able to access all of that important information in the comfort of their homes - or in the comfort of their workplaces, public libraries, iPhones, etc. Indeed, because the FCC liberalized the main studio location rules to allow stations to locate their main studios 25 miles away from their communities of license, the nearest Internet access is almost certain to be closer than any given station's main studio. Why, then, should licensees be required to maintain an entire bricks-and-mortar facility that may not otherwise be necessary to their operation?

Eliminating the main studio rule probably isn't what the FCC had in mind when it created the new public file online requirement for TV stations, but it isn't that much of a leap. To the contrary, it seems like the next logical step. Under the current rules, stations must maintain a local or toll-free telephone number for communication with the public. If the public file is online and the station locally publicizes an email address for electronic correspondence and a physical address for correspondence by regular mail, the public would have all of the purported benefits of a locally-maintained main studio without requiring the station to have a potentially unnecessary office in any particular location. At the very least, the FCC could eliminate the main studio location rules, allowing stations to put their facilities wherever business requirements dictate, freeing stations from unnecessary expense and freeing the FCC from the need to police main studio locations. We would hope that the FCC would consider a move that would ease burdens on both licensees and the FCC's staff without compromising service to the public. Then again, we may be uncommonly hopeful people.
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BACK TO THE FUTURE!!

Posted on November 28, 2007 by Harry Cole

Back to the future is where the Commission appears to be taking the television industry. The FCC has announced a major overhaul of the quarterly issues/programs list requirement for TV licensees. Instead of the quarterly report which stations have been required to compile (and place in their public inspection files) for a couple of decades, the Commission will now require the completion - and submission to the FCC - of a quarterly, FCC-designed form listing "various types of programming", including: local civic programming, local electoral affairs programming, public service announcements and "independently produced programming".

But wait, there's more.

The new form will also require "information about efforts that have been made to ascertain the programming needs of various segments of the community", as well as information "regarding closed captioning and video described content".

Over and above that new quarterly filing, the FCC is also requiring TV licensees to make their local inspection files ("with the exception of their political file") available online if they have Internet websites.

And finally, TV licensees will have to notify their audiences about the location of their public files twice daily.

And did we mention that these new rules are supposed to take effect within 60 days of their publication in the Federal Register?

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.
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