TV broadcasters, start your scanners. The era of online public files is set to take effect on August 2, 2012 . . . maybe. 

According to a notice in the July 3 Federal Register, the Office of Management and Budget has approved the Commission’s revised public file rule. Thanks to that notice, the rule – which now requires full service TV and Class A TV stations to post their public files on a Commission-maintained, cloud-based, online system – will become effective 30 days hence.

That means that, at least theoretically, as of August 2, 2012 all full-power and Class A TV licensees will have to start uploading to the FCC’s online file system all newly-created documents required to be placed in the public file except for letters/emails from the public and, in some-but-not-all cases, political file materials. Those licensees will have six months in which to upload all pre-existing public file documents to the online system (again, with the exception of communications from the public and, in all cases, political materials). (A quick look ahead on the calendar indicates that six months from August 2 would ordinarily be February 2, 2013, a Saturday.)

Who has to upload political materials and when? Nobody has to upload existing political file materials – they’ve been exempted from the online file requirement. The first folks to feel the brunt of the online rule as far as political materials go are the stations (a) affiliated with one of the top four commercial networks and (b) located in a Top 50 market. If you’re one of them, you have to start uploading your newly-created political documents as of the effective date of the rules, just in time for the crush of a national election.. (Previously-created political documents need not be uploaded to the online file.) Everybody else – i.e., Top 50 stations not affiliated with ABC, CBS, Fox or NBC and all non-Top 50 stations – can relax until July 1, 2014 on the political file front.

We say that the initial upload date may still be theoretical for a couple of reasons.

First, the Commission has not yet announced that it has, in fact, developed the online system to which the files will have to be uploaded. Until that practical hurdle has been leapt, there’s nowhere to upload the public file materials to. We’ll be on the lookout for a public notice from the FCC about this, probably in the near term.

And in addition to that practical consideration, there are a couple of pesky legal considerations. The materials included in a public inspection file may – and probably often do – include what the Commission refers to as “personally identifiable information” (PII). Governmental collection of PII is subject to constraints. In particular, before the FCC can collect PII, it must prepare a “Privacy Impact Assessment” and it must also prepare a “system of records” and issue a “System of Records Notice” (SORN) which must in turn be published in the Federal Register. The SORN provides details on how the records will be handled by the agency.

Normally, the publication of a SORN starts a 40-day waiting period (a) during which it is to be reviewed by the OMB and Congress and (b) before the end of which the agency may not implement the system.  Do the math and you’ll see the apparent problem: if the 40-day SORN review period hasn’t even started yet (since, according to the Federal Register notice, the system of records is still being prepared, so the SORN hasn’t been published yet), it’s, um, unlikely that that period will wrap up by August 2.

Of course, the Commission could ask for a waiver of the 40-day period, but there would still be the problem of the 30-day waiting period imposed by the Privacy Act. Section 552a(e)(11) of the Act appears to prohibit any agency from publishing or disclosing any information in a newly-established or newly-revised system of records until the agency has provided a 30-day public notice period, commencing with Federal Register publication of the SORN. And we understand that that 30-day requirement can’t be waived.

Presumably all of these procedural niceties will sort themselves out eventually. Whether that will occur by August 2 is anybody’s guess.

And let’s also not forget that the NAB has filed a petition for review asking the U.S. Court of Appeals for the D.C. Circuit to take a look at the revised public file rule. (Issues on the table: whether the public file rule is arbitrary and capricious, unconstitutional, and/or contrary to the Bipartisan Campaign Reform Act.) Now that we have an effective date for the rule (or at least a theoretical effective date), the NAB might be inclined to ask the Court to stay the effectiveness of the rule pending resolution of the appeal. We’ll keep an eye out and let you know if anything along those lines surfaces.

In any event, for what it’s worth, the FCC has announced that the revised public file rule will take effect on August 2. Check back with us here at CommLawBlog for further developments.