Commission proposes to host all TV public files on its servers; Form 355 is now dead – but possibly not for long.

We have some good news and some bad news. 

First the good news: in an “Order on Reconsideration and Further Notice of Proposed Rulemaking” (FNPRM),  the Commission has abandoned the dreaded “enhanced disclosure” Form 355, its 2007 attempt to bulk up the quarterly issues and programs lists for TV licensees.

Now the bad news: the Commission is still looking to impose significantly increased program reporting obligations on the television broadcasting industry (and, possibly at some time down the line, on their radio sibs as well). And the number of items required to be routinely submitted to the Commission could be increased dramatically. Oh yeah, and the notion of an “enhanced disclosure” hasn’t been tossed entirely; it’s merely on the backburner, apparently awaiting a notice of inquiry that is expected to be circulated in the near future.

Of course, in its FNPRM the Commission does not characterize its proposal as increasing any burdens. Au contraire, its goal here is supposedly to “modernize the way television broadcasters inform the public about how they are serving their communities.” And how does it plan to do that? The FNPRM proposes that TV stations would no longer have to maintain all of the hard-copy local public inspection files that have been obligatory for decades.

 So no more public file? 

Not quite.

TV stations would still have to compile most of the same materials (including political files) currently required to be maintained in the public file – so there would be little lessening of any burdens there. The new rules would also, for the first time, include sponsorship identification information and agreements about news sharing and other shared services among the documents to be preserved, submitted and posted. Far from lessening licensees’ burdens, that would increase them. And under the proposal, all those materials would have to be preserved electronically (rather than in musty old paper files) and submitted to the Commission, which would then post them on the FCC’s own website. 

So any relief the TV universe may experience from the demise of the “enhanced disclosure” Form 355 report is likely to be short-lived.

Some background. As initially adopted in late 2007, Form 355 was a quarterly report intended to replace the existing issues and programs lists – except, unlike issues/programs lists, Form 355 was to submitted to the Commission.  The form sought detailed information about a wide range of program categories (e.g., national news, local news, local civic affairs, local electoral affairs, local programming, public service announcements, paid public service announcements, underserved communities programming, religious programming and independent produced programming). It was viewed by many observers as an intrusive, burdensome obligation which could (and in the eyes of some would) serve as a gateway to extensive content regulation by the Commission. Broadcasters voiced their objections in a number of petitions for reconsideration, as well as in comments filed pursuant to the Paperwork Reduction Act. (Appeals were preliminarily filed with the Court of Appeals for the D.C. Circuit, but they have been held in abeyance because of the pendency of the reconsideration petitions.)

For reasons the Commission hasn’t bothered to announce, the FCC declined to take the steps that would have been necessary to implement the Form 355 requirement. As a result, even though Form 355 was technically on the books as of early 2008, it did not have to be filed while the Commission mulled over the reconsideration petitions. 

The FNPRM vacates the 2007 order creating Form 355. But even as it tosses the form onto the scrap heap, the Commission indicates (in a footnote) that it is seriously considering an alternative reporting requirement that, according to the Commission, “substantially streamlines and revises” Form 355. That alternative was proposed by a coalition of “public interest” groups. Among other things, it would require the reporting of certain “core” categories of programming: Local News; Local Civic/Governmental Affairs; Local Electoral Affairs; and Closed Captioning/Emergency Accessibility Complaints. According to the FCC’s latest order, we can expect to see a Notice of Inquiry seeking comments on that alternative approach “promptly”.

So it’s a tad premature to kiss good-bye the notion of “enhanced reporting”.

The Commission’s 2007 decision also contemplated that TV station’s local public inspection files would be made accessible on-line (either on each station’s own respective website or on sites maintained by state broadcasting associations). That provision has also now been scrapped. But as noted above, the FCC has magnanimously agreed to host the public files of all TV stations. (The Commission claims that it will not review on-line public file documents for compliance with the rules “on a routine basis”. Whether it might do so in the future remains to be seen.) The licensee would still be required to maintain its own separate “back-up” copy of all uploaded public file materials, just in case the FCC’s system crashes. So licensees wouldn’t be relieved of any real burdens, it would appear. (It’s not clear why the Commission itself shouldn’t be responsible for maintaining its own back-up system, but let’s not go there just now.)

According to the FCC, an FCC-maintained public file would ease existing burdens on licensees because the Commission could automatically import into each station’s public file the various items already filed with the Commission (e.g., licenses, applications, children’s programming reports, etc.). But hold on there. For many licensees, these documents make up only a small portion of the total documents included in their public files. All the rest of the materials would still have to be prepared for uploading (e.g., scanned) and then uploaded by the licensee. That’s not an insubstantial burden in and of itself. 

The on-line public file would include all of the information currently required to be in the local public file (except for correspondence from the public – which would have to be maintained in a “correspondence file” at the station, available for public review). Importantly, this would include all political advertising information. Despite the volume of such information and the practical difficulty of keeping up with the flow of political buys in the midst of an election season, the FNPRM proposes that all political files be uploaded “immediately absent unusual circumstances”. 

Additionally, several new items would be required to be uploaded for public review – shared services agreements and sponsorship identification information. It’s not exactly clear what the Commission has in mind when it comes to sponsorship ID information. The FNPRM proposes that licensees be required to compile and post as part of their on-line public files a list of all sponsorship identifications that it broadcast where existing rules require broadcast of a sponsorship identification.

On the positive side, the Commission is proposing to eliminate the need for TV licensees to include a copy of their contour map in their public file (woo-hoo!), but they would have to include express identification of their main studio location.

As the Commission envisions the transition to an FCC-maintained on-line public file, each licensee would be required to upload into its on-line file all materials already in its public file. The Commission doesn’t think that that would pose too much of a burden – although, in an apparent effort to keep its bureaucratic fingernails clear of any dirt, the Commission has delegated to the Media Bureau the chore of figuring out precisely how (and when) the contents of several thousand public files are to be uploaded. As a result, a wide range of nitty-gritty questions – for instance, what format should the uploaded files be in? – remain unanswered.

The FNPRM also proposes to require TV stations to air announcements of the existence, location, and accessibility of their on-line public files at least three times per week as part of their station identification. Although a far cry from the twice-daily announcements that would have been required under the Commission’s 2007 Order, the Commission requests comment on whether the proposed number of announcements would be sufficient, excessive, or just right. The Commission also proposes requiring licensees who have a website to provide a link to the Commission-hosted on-line public file.   

Since the FNPRM is merely a collection of proposals, the Commission takes pains to solicit comments on the wide variety of questions that those proposals raise. A separate section of the FNPRM specifically solicits “cost/benefit” analyses relative to the various proposals. Television licensees in particular should review the FNPRM carefully with an eye toward providing the Commission as much detailed information as possible, particularly with respect to any burdens the proposed system is likely to impose. The FNPRM appears to have been drafted with the preconceived notion that any such burdens would be minimal and easily absorbed. If anyone is in a position to demonstrate flaws in the Commission’s presumptions, now would be a good time to let the Commission know.

While the Commission may attempt to portray its proposed FCC-maintained public file system as affording relief to TV broadcasters (who, under the now-discarded 2007 approach, would otherwise have had to maintain their own on-line public files), the Commission appears to  have other goals in mind. In particular, the Commission perceives this system as a stepping stone toward an “ultimate goal”. And that “ultimate goal” is the transformation of the public file into a source of data that can be “aggregated, manipulated, and more easily analyzed”. (The FNPRM poses a number of questions concerning whether – and if so, how – the Commission might impose standardized formatting requirements to assure the consistency and searchability of all submissions, which would facilitate the aforementioned aggregation, manipulation and analysis of the data.)

Comments on the FNPRM’s proposals will be due 30 days after its publication in the Federal Register, with reply comments due only 15 days after comments are filed. (Check back here for updates on Register publication.) In view of the broad range and deep complexity of the questions posed, not to mention the time required to respond to the Commission’s request for detailed cost/benefit analyses, those timeframes seem inadequate. If the Commission were genuinely interested in developing a solid factual record on which to proceed, it would provide considerably more time. If the Commission has already reached its conclusions and is inviting comments simply as a perfunctory nod to the requirements of the Administrative Procedure Act, then the allotted comment periods should be plenty.

While the proposals appear to be on a fast track, there remain a number of hoops for the Commission to jump through. But the direction in which the FCC is determined to steer this proceeding is clear. TV licensees should pay attention now – as should all broadcasters, since it’s reasonable to assume that, if these proposals are adopted for TV, the radio side will see similar rules in short order.