NPRM would include broadcast radio, cable, satellite providers in FCC-maintained online system.

Back in July – that would be less than six months ago – three public interest groups asked the Commission to revise its rules to require cable TV and satellite TV (DBS) operators to maintain online public inspection files akin to the online files that conventional TV broadcasters have been required to maintain for about two years. As we reported in August, the Media Bureau wasted no time in seeking public comment on the proposal (which the Bureau expanded to include radio broadcasters and satellite radio (SDARS) operators as well) a couple of weeks after the proposal’s submission.

And now, a mere four months later, the Commission has issued a Notice of Proposed Rulemaking (NPRM) formally proposing that cable and satellite operators (both TV and radio) – and radio broadcasters – all be subject to essentially the same online public file regime to which TV licensees are already subject.

While the FCC is moving unusually fast on this, we probably shouldn’t be surprised: the shift to online public files for TV licensees has proven to be relatively uneventful, and it has yielded a bounty of data for national public interest groups eager to slice and dice trends in political advertising. (That eagerness has already led to multiple complaints – check out our posts here and here, for example – in which watchdog public interest groups have questioned stations’ compliance with the political file requirements.) With this success under its belt, the Commission presumably figures that it’s a no-brainer to bring TV’s cable, satellite and radio sibs to the online public file party, too.

It doesn’t look like the FCC plans to make any changes to the existing online public file system (although the Commission has solicited any suggestions that commenters might want to offer). The materials required to be included in the public file aren’t expected to change in any major ways for radio broadcasters. In particular, noncommercial stations would be required to post their donor lists (just as NCE TV stations are required to do) – although the NPRM expressly invites comments on that point. One possible change: the FCC thinks it would be easier for the Commission itself to generate stations’ contour maps; however, stations would have to post the location of their main studios and their contact information (phone number/email address) online. The rules for cable and satellite operators may involve some similarly slight tweaks relative to the file’s contents and organization.

As is the case with existing TV files, cable/satellite/radio folks would not be required to upload most materials that are already filed with the Commission, since the FCC will simply provide automatic links to such materials. For readers generally unfamiliar with the way the TV system works, take a look at our earlier posts (here and here, for two) describing some of the practical ins and outs. Obviously, if you’ve got ideas about how it might work better, you should let the Commission know – but you probably shouldn’t get your heart set on a prompt and favorable agency reaction.

As for the anticipated roll-out of the expanded online public file requirement, the FCC plans to use the same approach it used for TV broadcasters: a reasonable amount of time for one and all to get familiar with the system; no obligation to post political files or communications from the public created prior to the effective date of the expanded rules; relatively minor changes to the texts of public announcements required in connection with renewal applications. The roll-out would be phased in to reduce the burden on smaller broadcasters and cable systems. Radio stations which (a) are in the top 50 Nielsen Audio (formerly known as Arbitron) markets and (b) have five or more full-time employees would have to take their files online at the same time as cable, DBS and SDARS operators. Other broadcast radio licensees would be off that particular hook for two years. Sensitive to the potential burdens maintenance of an online public file might impose, the NPRM also proposes to “initially exempt” noncommercial educational radio stations and all radio stations with fewer than five full-time employees from any online public file requirement. It’s not clear how long that “initial exemption” might last, but the NPRM does ask whether such an exemption should be made permanent.

Similarly, the FCC is thinking of rolling out the online requirement for cable systems based on their size: first up would be systems with 5,000 or more subscribers, then systems with between 1,000 and 4,999 subscribers. The Commission is currently thinking that systems with fewer than 1,000 subs might be permanently exempted from the requirement.

The Commission’s full-speed-ahead approach to the online public file proposal contrasts sharply with its plodding approach to AM revitalization. As indicated above, the proposal to spread the online public file requirement beyond broadcast TV didn’t surface until last July, and then it didn’t include broadcast radio. Apparently on its own motion the Bureau, in seeking preliminary comments, expanded the proposal in August and now, a mere four months later, we’re looking at an NPRM. Contrast that to AM revitalization. While the FCC did issue – in 2013 – an NPRM looking to improve various aspects of AM operation, many of those changes had been formally proposed in petitions for rulemaking as early as 2009. To be sure, some of the AM revitalization components may be more complex than mere expansion of the now-tried-and-true online public file system, but at least some of the AM revitalization components could presumably be adopted and implemented without much muss and fuss. Why those components have been left on the sidelines for more than five years while the online public file expansion has been moved to the head of the line in less than six months is not clear.

The Commission’s proposal is ironic in at least a couple of respects. According to the NPRM, moving public files online is warranted in large measure because the “evolution of the Internet and the spread of broadband infrastructure have transformed the way society accesses information today”, so much so that it is “no longer reasonable” to expect the public to have to travel to a station to review its public inspection file. That may be the case, but why then does the Commission persist in fining licensees who rely primarily, if not exclusively, on online employment notices when recruiting to fill staff vacancies? (In addition to this post from a couple of years ago, check out this decision released by the Media Bureau the day before the NPRM.) Ditto for the FCC’s resistance (which seems at long last to be cracking) to the notion of maintaining contest rules online?

Another irony: Despite the proposed Internet-ization of the broadcast public file rule, the title of that rule would remain unchanged. According to the NPRM, the title would still refer to the “LOCAL Public Inspection File” (emphasis added). This is ironic because placing these files online is the antithesis of localization. Absent some kind of geo-fencing (and the NPRM does not address that possibility), the placement of public files online expands their availability exponentially, well beyond each station’s respective service area. Complaints filed thus far based on information gleaned from online TV public files have not been filed by local individuals or entities.

Historically, a broadcast station’s public file has been required to be located within the station’s service area to insure the station’s audience reasonably convenient access both to the file and to the station’s management personnel. Online availability may make the files somewhat more accessible to some members of the station’s audience, but it does not bring audience and station management any closer together. The primary effect of online availability is to provide accessibility to folks far outside the station’s service, folks who could not themselves be local listeners. In that respect the proposed change undeniably signals a fundamental shift in the effect of the rule. While the FCC might claim otherwise, the proposed change also signals a fundamental shift in the purpose of the rule as well. That being the case, it would seem appropriate, and honest, to revise the rule’s title to reflect that change in effect and purpose.

The deadlines for comments and replies have not yet been established. Check back here for updates on that front.