A recent notice about DTV construction permit applications got us thinking about our old friend, the PRA.

Has the FCC changed the process for applying for DTV construction permits? Probably not, but a recent notice in the Federal Register seemed to suggest otherwise. It turns out, though, that the real story here is the hypnotic effect of the Paperwork Reduction Act (PRA).

The PRA – usually referred to as “hilariously named” here in the CommLawBlog bunker – is a pleasant vestige of the 1980s. It was intended to curb the wretched excesses of federal regulatory agencies. The idea was that, before an agency could impose a new paperwork burden on the public, the agency would have to take the time to quantify, and justify, the anticipated burden. The Office of Management and Budget (OMB) was appointed the final checkpoint on the regulatory assembly line to ensure that agencies were not overstepping.

This being Washington, the PRA process is more elaborate than might have been expected. The agency first devises the proposed “information collection” and determines who will have to submit the information and how much time it’s likely to take them. (While the former is generally easy for the FCC to pinpoint, the latter not so much. Example: Several years ago a Commission PRA notice advised that completion of a particular LPFM form was expected to take anywhere from one-seventh of a second (that would be 0.0025 minutes) to 12 hours. It’s hard to say which is more dubious, the accuracy of that estimate or its utility.)

The FCC then publishes that information in a nondescript notice in the Federal Register, giving anybody who wants to comment a generous 60 days to do so. Following that period, the FCC packs up the proposed form and any comments received, slaps on an explanatory cover memo, and ships the whole shooting match over to OMB, which then issues its own nondescript Federal Register notice soliciting a second 30-day round of comments. OMB then dutifully reviews any comments that roll in and, in nearly all cases, rubber-stamps the form.

Which brings us to DTV CPs.

Historically, you filed for DTV permits on Form 301. As we have reported, the FCC is in the process of overhauling its on-line application file system. In connection with that, new DTV CPs must now be applied for using Form 2100, Appendix A, which recently showed up in a Federal Register PRA notice. With respect to DTV permits and Form 2100, the notice said:

To receive authorization for commencement of Digital Television (‘‘DTV’’) operations, commercial broadcast licensees must file FCC Form 2100, Schedule A for a construction permit. The application may be filed anytime after receiving the initial DTV allotment and before mid-point in the applicant’s construction period.

This statement struck us as puzzling. Normally you don’t have a broadcast construction period until you have a construction permit, and you can’t get a permit until you apply for one. So what’s all this about filing your Form 2100, Appendix A, “anytime … before the mid-point” of the construction permit? Could this be something radically new and different?

Quite to the contrary.

A little research led us on a jaunt down memory lane. It turns out that the odd language is a vestige of the DTV transition. Yes, that DTV transition, the one that happened more than five years ago. 

Back in the late 1990s, as the Commission was teeing up the transition, it allotted each full-power TV station a separate DTV channel for transition purposes. Stations had to construct their DTV facilities within a certain timeframe, with deadlines ranging from 1999 to 2003. In light of the theoretically fixed deadline for transition, there was some urgency in making sure that licensees had at least applied for construction permits in a timely manner, and, thus they had to apply for the necessary permit “before the mid-point in a particular applicant’s construction period has expired.” Since that timing consideration was an important aspect of the application process, specific reference was made to it in the PRA notice relating to Form 301, Form 2100’s antecedent, back in the 1990s, as far as we can tell.

And once the language about filing for a DTV CP by the mid-point of the construction permit was included, it planted deep roots.

While OMB’s online records aren’t particularly complete prior to 2007, we found a December 2007 notice (concerning Form 301) that featured precisely the same language that showed up in the recent notice about Form 2100. So it would appear that language tied to a 1997-vintage DTV transition requirement that was relevant only for a finite period of time has hung on in PRA notices related to DTV CP applications to this day, even though that language hasn’t been relevant to anything for more than five years (and probably longer in many cases).

This retention of bureaucratese could be intentional, although we’re at a loss to understand why.

More likely, we suspect that the language hangs on because no one at the Commission has read it lately or, if they have read it, they didn’t think to question its current substantive vitality (or lack thereof). And apparently, when it comes to PRA notices, nobody up the review chain thought to read and/or question it, either. And nobody outside the FCC who might have read any of the PRA notices that included this language years after its sell-by date seems to have taken note of it.

Which raises the question: if little or no thought is given to their preparation, and nobody (other than us, of course) reads them, and if comments that do get filed in response to them seem to be ignored, why bother to publish PRA notices in the first place? What real purpose do they serve? The PRA was intended to reduce the voluminous paperwork burdens that then plagued the public. Despite the PRA’s intended goal, those burdens seem only to have grown since the PRA was enacted. While it’s easy to suppose that things might be even worse but for the restraining effect of the PRA over the years, do we have any reason to believe that that supposition is true?

To be sure, the PRA might – we emphasize might – make sense if it caused anyone to give real thought to particular information collections and whether those collections actually serve any useful purpose, how they might be streamlined or otherwise improved, how some of their burden might be lifted. But there’s very little evidence that that’s the way it works. Instead the PRA process has morphed into a rote drill that, it appears, nobody – agency personnel who prepare PRA notices or members of the public to whom they are theoretically directed – pays much attention to.

Meanwhile, the PRA process chugs along, generating hundreds or thousands of largely unread notices whose content may or may not be valid.

Paperwork reduction indeed.