Tip our hat to the new (or old) constitution? Apparently not . . .
Hot on the heels of its formal abandonment of the “enhanced disclosure” reporting form (the ill-fated Form 355), the Commission has made good on its promise to come up with a replacement. Ladies and gentlemen, please put your hands together for the 2011 edition of “Standardized Television Disclosure Form 355”.
Actually, all we have at this point is a proposed Form 355 and a Notice of Inquiry posing numerous questions about that proposal. But it’s a good bet that the proposed form is pretty much already a done deal destined for prompt adoption. Implementation may be a different story, as we all learned from the 2007 Form 355 that never quite got off the ground. While the new version suffers from many of the problems that presumably stalled out the old version, the Commission is try, trying, again.
That process has now begun, with the release of a Notice of Inquiry requesting comment on a new and “improved” version of the Form 355.
As currently proposed, that form would be required only of television stations (both commercial and noncommercial), although the Commission does say that it expects “eventually” to adopt similar requirements for radio. The proposed form looks a lot like the 2007 version, which should not be surprising, since both came from the same source. That would be the Public Interest, Public Airwaves Coalition (PIPAC), which designed and championed the 2007 version and has now returned with the 2011 version.
You may recall that the 2007 Form 355 required detailed reporting of all TV programming (per quarter) in a bunch of categories (including 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). Additional information – about such things as closed captioning, video description, emergency advisories – was also required.
Even the Commission now acknowledges that the 2007 Form 355 was “overly burdensome”. That the 2007 Form 355 was indeed overly burdensome was obvious from the get-go, of course, so the fact that it has taken the Commission some four years to get to this point is not especially comforting. And sure enough, the FCC still appears to be wearing its 2007 blinders when it characterizes the 2011 Form 255 as “substantially reduc[ing] the burden”. (Although, since the 2007 version had set the bar so low, the Commission had plenty of ways to go before getting to something not overly burdensome.)
The Commission now proposes requiring reporting on programming in three categories: Local News, Local Civic/Governmental Affairs, and Local Electoral Affairs. The definitions of these categories would be (according to PIPAC, source authority for most of the Commission’s proposals here):
Local News: Locally produced programming that reports on issues about, or pertaining to, a licensee’s local community of license.
Local Civic/Governmental Affairs: Coverage of government meetings, legislative sessions, conferences featuring elected officials, substantive discussions of civic issues of interest to local communities or groups, and interviews with or statements by governmental officials and policy experts on issues of importance to the community.
Local Electoral Affairs: Candidate-centered discourse focusing on the local, state and federal races for offices to be elected by a constituency within the licensee’s broadcast area. Local electoral affairs programming includes broadcasts of candidate debates, interviews, or statements, as well as substantive discussions of ballot measures that will be put before the voters in a forthcoming election.
The Commission requests comment on whether these categories are appropriate, whether the definitions are clear and workable or need refinement, and whether additional or different categories should be included. The NOI also asks whether, in addition to the specific categories, the Commission should include an opportunity to report on programming in other “optional” categories (which it turns out – here’s a surprise – track very closely the other categories the Commission had included in the PIPAC-designed 2007 Form 355).
The Commission does not propose a specific form for the report. Instead, it refers the reader to the proposed form prepared – and posted online – by (wait for it) PIPAC.
These reports would be quarterly and would cover two “composite weeks” from each quarter. (What’s a “composite week”? It’s a week’s worth of days, but not from a single calendar week. So for the first quarter of a year, the composite week Sunday might be the Sunday from the first week of January, the Tuesday from the third week of March, Wednesday from the second week of February, etc. The Commission would select the component days of each composite week, and then broadcasters would have to use available station records for those dates to prepare the report.)
The NOI suggests that the information to be reported for each item of programming has yet to be tied down. It requests comment on whether entries should be by entire program (i.e., Local News at 5:00 for 30 minutes) or by program segment (i.e. one-minute piece on local school board election). The Commission also requests comment on its tentative proposal to allow a given program or segment to be included in only one category.
As to the specific reportable information, the NOI (following PIPAC’s lead) suggests that licensees would have to include a title or topic, airdate and time, channel (primary or multicast), whether the programming is first-run, and the length of the segment without commercials.
While some of these basic items may not be terribly controversial, two other suggested items might be. First, the PIPAC proposal would require broadcasters to identify whether any of the programming described in the Form 355 was subject to sponsorship identification requirements, and, if so, who sponsored the programming. Second, unlike the 2007 version of Form 355, broadcasters would be required to disclose whether any of the reported programming was produced under a shared services agreement, local marketing agreement, news sharing agreement, or any other arrangement with another broadcaster or a local newspaper. A link to the relevant agreement covering that production would also have to be provided.
PIPAC (and, therefore, the FCC) would also require licensees to:
- include in their reports various other links (e.g., to their online public file, their most recent ownership reports, and their most recent children’s programming reports);
- indicate whether the programming reported in their Form 355s is closed captioned (if so, the type of captioning – e.g., live, electronic newsroom – would also have to be disclosed);
- report on all of their “local electoral affairs programming” during the lowest-unit-charge windows before primaries (45 days) and general elections (60 days);
- and report on any programming (even if not otherwise included in the Form 355) that is exempt from captioning.
All of these proposals are technically open for comment, according to the NOI. Are the program categories appropriate? Are two composite weeks per quarter enough, too many or just right? When should the Commission clue broadcasters in to the precise dates selected for each composite week? What exceptions (if any) to all these requirements should be considered? Should reporting on video description be required? How about the PIPAC proposal that would require reporting of the number of complaints received regarding captioning and accessibility of emergency programming?
The Commission also devotes a section of the NOI to the question of cost/benefit analysis.
The problem here, though, is that the Commission appears already to have concluded that Form 355 is needed. The FCC is convinced that there is a “systemic problem”, that the public somehow lacks access to “consistent and uniform” information about broadcasters’ programming. Working from that premise, the Commission claims that a standardized disclosure form will help enable members of the public to be more involved in ensuring that stations address their needs. In particular, the Commission believes that the lack of consistency between various stations’ issues/programs lists makes “assessment and comparison” between broadcasters difficult.
Of course, broadcast programming is by definition totally public and accessible. And it’s in each broadcaster’s interest to do what it can to maximize the number of people who watch its programming. So the notion that information about programming may somehow be inaccessible is odd.
But the Commission’s real goal here appears to be to create a Commission-maintained database of programming available for slicing, dicing and second-guessing by “researchers” – both on the FCC’s staff and in the private sector – who could “assess” and “compare” broadcasters’ programming. The FCC contemplates that Form 355 information would ultimately be submitted in some “machine-readable” format that would facilitate computer analysis.
It is not much of a stretch, notwithstanding Commission disclaimers, to imagine the Commission using the data to try to pressure broadcasters (explicitly or by “raised eyebrow”) to air programming to the agency’s liking. That, of course, would raise serious constitutional problems, as previous Commissions have recognized. The NOI ignores those problems, even though Commissioner McDowell raised them and suggested that the NOI expressly address them.
The Commission also claims, somewhat counter-intuitively, that a new standardized disclosure form will help minimize FCC oversight of broadcasters. Professing that it’s really just here to help, the Commission claims that a new Form 355 will help solve the alleged “communications breakdown” between broadcasters and the public.
The NOI’s proposals reflect an effort by the Commission to return to a regulatory approach harkening back to the 1970s. Back then broadcasters (TV and radio) were required to provide detailed analyses of various types of nonentertainment programming in their renewal applications. The Commission even imposed “guideline” percentages for such programming; renewal applicants failing to achieve the minimum levels were theoretically subjected to greater scrutiny. But historically, even such “greater scrutiny” had no perceptible effect, and it was abandoned in the deregulatory actions of the early 1980s. Why the Commission could possibly expect any difference now is a mystery.
Obviously, the potential resurrection of the Form 355 should be a matter of concern to broadcasters. The NOI provides the opportunity to submit comments on the Form to the Commission, although if 2007 is any guide, the adoption of some version of the form may be a foregone conclusion. However, since we are only at the NOI stage, once the Commission receives and reviews the comments filed in response to the NOI, it will still have to issue a notice of proposed rulemaking, inviting another round of comments, before the new Form 355 can take effect. As we learned from the 2007 experience, even if the Commission puts a new form on the books, that’s no guarantee that the form will ever be implemented.
Comments will be due 30 days after the NOI is published in the Federal Register, with reply comments due only 15 days later. (Check back here for updates as to the deadlines.) Even if the Commission appears already to have made up its mind here, anyone with data countering the FCC’s various assumptions would be well-advised to take the time to bring those data to the Commission’s attention now (and at any further opportunities that may present themselves).