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.