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.