With February 4 deadline fast approaching, some more helpful tips for the upload process

As we roll into the New Year, it’s important that full-power TV and Class A TV licensees (we’ll refer to them collectively as “TV licensees” here) keep their eye on February 4. That’s the date by which all TV licensees must have uploaded their public inspection files to the FCC-maintained online site. If you haven’t already done so, now’s the time to inventory your public file, determine what documents have to be uploaded, and start the upload process inmediatamente. 

As we have been explaining in a series of posts that started last spring (or even earlier) when the new online public inspection file requirements were first adopted, TV licensees must move most (but not all) of the materials in their existing public files to the online system. Earlier this month the Commission officially announced that the deadline for completing that project is February 4, 2013.

What has to be uploaded?

Everything in the file, EXCEPT: (a) political broadcasting files created prior to August 2, 2012 and (b) letters/emails from the public. 

(First Important Note: commercial stations not affiliated with one of the top four national networks in any of the Top 50 TV DMAs don’t have to upload any political files to the online site until July 1, 2014, although they may if they want to. Top 50 market network affiliates, on the other hand, have been required to upload all political documents created on or after August 2, 2012.)

(Second Important Note: The Commission has made clear that communications from the public about the station that are posted on social media are not required to be placed in the paper public file, much less the online public file.)

Of course, the FCC has taken care of a large chunk of the uploading job by automatically importing into the online file all applications and reports filed electronically through other FCC systems, including applications filed through CDBS and Children’s TV Reports. So as you sift through your paper public file, don’t worry about having to manually upload those types of materials (although you should probably double check your online file to confirm that all the applications/reports that are supposed to be in the online file are, in fact, there).

While the contents of station files will vary from station to station, for most stations it’s likely that the biggest uploading chores will involve: (a) quarterly issues/programs lists and (b) contracts and other ownership/organization-related materials. We already covered the process of uploading documents – including particularly issues/programs lists – last September. Check back there for general tips on accessing and uploading to your online public file. Of course, back then we were primarily concerned with walking our readers through the process of uploading their October, 2012 issues/programs list, i.e., the first new document that all TV licensees had to upload. Now’s the time to go back through all the old issues/programs lists that have accumulated since your last renewal grant (yes, that will mean several years’ worth of lists) and upload those to the site.

And it’s also the time to tackle contracts and ownership-related materials, if you haven’t already done so.

First, what materials are we talking about? 

The rules regarding the public availability of contracts and ownership/organization documents are spread over several different sections of the FCC’s regs. While those rules do not necessarily provide completely consistent direction, the bottom line, as best we can figure, is the following.

The public inspection file rules (Section 73.3526 for commercial stations, Section 73.3527 for noncommercial stations) require TV station owners to upload copies of the following agreements to the online file: 

  • Citizen agreements, which are written agreements between the licensee and one or more citizens or citizen groups entered into primarily for noncommercial purposes. These generally involve “goals or proposed practices directly or indirectly affecting station operations in the public interest, in areas such as – but not limited to – programming and employment”.
  • Time brokerage agreements involving brokerage of the licensee’s station, and agreements in which the licensee is brokering another station, whether in the same market or different markets.
  • Joint Sales Agreements involving joint sale of advertising time on the station and on one or more other stations, regardless of whether or not the stations are in the same market.

The FCC has created separate folders for each of these types of agreements. You can find links to access those folders in the left-hand column of the public file upload screen.

But over and above such items, your paper public file may include a number of other contracts or ownership/organizational documents. That’s because the public file rules require that the file contain “ownership reports and related materials”. The “related materials” referred to – which are required to be filed with the Commission pursuant to Sections 73.3613 and 73.3615 – include a wide range of items, including:

  • Contracts, instruments or documents relating to the ownership or control of the licensee or its stock, or relating to changes in the ownership or control of the licensee. For example: articles of incorporation, bylaws, stock voting agreements, options, mortgages or loan agreements that limit the licensee’s freedom to operate as it pleases. (These materials must be in the file not only for the TV licensee itself, but also for entities with majority interests in or otherwise exercising control in fact over the licensee.)
  • Management or consultant agreements with persons other than officers, directors or regular employees of the licensee.
  • All agreements with anyone that provide for sharing of both profits and losses.
  • Time Brokerage/Local Marketing Agreements where the licensee of the station is brokering time on another station in the same market and more than 15% of the time on the other station is provided by that licensee.
  • Network affiliation agreements with a national network (i.e.,a network with 15 or more hours per week delivered to at least 25 affiliates in 10 or more states).

So don’t be surprised if you find such materials in your paper public file. The good news is that the rules provide that full copies of those documents need not be placed in the online file (or the paper file, for that matter) as long as an up-to-date list of such materials IS included in the file. If your most recent ownership report (FCC Form 323 or Form 323-E) contains such a listing (as it should in most instances), you should be off the hook for uploading any of these materials. 

And even if the listing in your most recent ownership report is not up-to-date – for instance, you may have entered into a reportable contract since your last ownership report was filed – you can upload a separate, current list of documents (being sure to include not only the parties to any listed agreement, but also the execution and expiration dates as well). 

Where to put such a list?  The answer to that question is not obvious, but not to worry – here’s the answer.

First, sign onto your station’s online public file upload screen. Once you’re there, click on the “Ownership Reports” link in the left-hand column (marked in red in the illustration below), and when the “Ownership Reports” page comes up, click on the “Contracts and Additional Documents” tab (marked in green below). Then click on the orange “Upload Documents” button and follow the standard upload routine. (If you want to upload full copies of any documents – rather than a mere listing of them – and you can’t find any other appropriate tab for them in the left column of the upload screen, you can put them here.)

Note that, even if you choose to upload a list of documents, rather than the documents themselves, you are still required to provide copies of any of the listed documents to anyone requesting them. Such copies must be provided within seven days of the request.

Careful readers may have observed that the various categories of reportable documents overlap in some respects, but not necessarily consistently. For example, one rule section indicates that time brokerage agreements can merely be listed, while another section indicates that full copies of such agreements must be uploaded. Similarly, TV joint sales agreements do not need to be listed in ownership reports (or provided on paper to the FCC’s headquarters), but full copies of such agreements must be uploaded to the online public file system.

If an agreement isn’t included in the categories we’ve listed above, you don’t have to upload it to your station’s public inspection file. The FCC has helpfully listed a few documents that do NOT need to be kept in the file: Trust agreements (unless the FCC asks for them); employment agreements with stations managers or sales personnel, professional services agreements with attorneys, consultants or engineers, and contracts with performer, sales reps, and labor unions.

Additionally, while agreements for the sale of assets or transfer of control as exhibits to license assignment or transfer of control applications are clearly reportable, they normally don’t need to be uploaded separately. That’s because complete copies of such documents are usually filed as part of the Form 314, 315 and 316 seeking FCC consent to the transaction reflected in the underlying agreement. If the form containing a copy of the agreement has been filed through CDBS, then the agreement itself is already contained in the online public file.

The rules specifically allow stations to redact confidential or proprietary information from Time Brokerage Agreements and Joint Sales Agreements uploaded to the public file, with the caveat that the redacted information must be disclosed to the FCC on the FCC’s request.

Now that you’ve got the lay of the land, it’s time to get cracking. All TV licensee must have their complete public inspection files uploaded to the FCC’s online site by February 4, 2013. Again, the upload process will require each station to inventory its existing paper file to determine what needs to be uploaded. That process may also reveal that some documents that should be in the file are missing. It’s wise to allow yourself some extra time, just in case the inventory and upload processes raise questions that need to be resolved. 

The requirement that TV public files be posted online substantially increases the need for diligence in the maintenance of those files, which will now be accessible 24 hours a day to every gadfly, critic, community activist and competitor. In the 21st Century online world, a station’s file can be visited by anyone at any time – and those visits can’t be monitored like the rare visits to the dusty old paper filing system used to be. That being the case, it’s a good idea to take the time to be sure that the online public file is complete and that, as much as possible, its contents reflect favorably on the station’s operation.