Many radio owners have a Commission-imposed deadline looming before Christmas.

Most radio stations located in large markets, which have been defined by the Commission in this instance to be the Nielsen Top-50 radio markets, will need to make sure that they have their online public files completely uploaded by December 24, 2016.

Each full-power commercial and non-commercial radio, television and Class A television broadcast applicant, permittee and licensee is required to maintain a local public inspection file containing materials which must be made available to members of the public. In an effort toward modernization and to provide better public access, the Commission has gradually been transitioning broadcast stations (as well as some cable television operators) to a requirement that their public files be maintained online, in a Commission-hosted database. This requirement applied first to television and Class A television stations, and is now being rolled out to radio.

Top-50 Market Radio Stations: As you may recall, beginning on June 24, 2016, full-power radio stations in the Nielsen Top-50 radio markets with 5 or more full-time employees in their employment unit (as that term is defined in the FCC’s EEO rules) were required to begin uploading virtually all public file documents to a Commission-hosted database on a going-forward basis. The exception to that rule was that stations were allowed to continue maintaining correspondence from the public in a paper file.

Now the second half of the requirement is about to kick in, as stations must upload public file documents which pre-date June 24, 2016, and that process must be completed by December 24. Exceptions to this requirement are the political file, which needs to be uploaded on a going-forward basis only, and, again correspondence from the public.

Thankfully, the Commission will lend a bit of a helping hand by automatically uploading applications and reports that are electronically filed with the Commission, such as routine modification and renewal applications and ownership reports. Therefore, these documents do not need to be separately uploaded by stations. AM stations should keep in mind, however, that certain of their applications, particularly license applications, are still filed with the FCC on paper rather than electronically, and they will therefore need to be uploaded manually. In addition, many other documents and material (quarterly issues & program lists, annual EEO public file reports, and certain contracts or lists of contracts, for example) are not electronically filed and must be manually uploaded.

Stations in this group must also provide a link to the online public inspection file from the home page of the station’s own website, assuming the station has a website. Additionally, a station must provide contact information on its own website for a station representative that can assist any person with disabilities with issues related to the content of the public files.

Radio Stations Outside the top-50 Markets and Small Stations: Stations in smaller markets or with fewer than five full-time employees should not get too complacent, as their turn will be next.

Beginning March 1, 2018, the online radio requirements will apply to full-power radio stations located outside the top-50 markets and small stations in all markets. Unlike the first group of stations, there will not be a phase-in period, but rather almost all public file documents, including documents from earlier in the license term and going-forward documents, will be required to be posted online by March 1, 2018. Exceptions are that the political file needs be uploaded on a going-forward basis only, and political file documents from prior to March 1, 2018, may be retained in a paper file for the remainder of their retention period. Additionally, letters from the public need not be uploaded but must be retained in paper format.

Stations are not required to wait until 2018 to make the switch to the online public file. Instead, they may make the switch at any point between now and March 1, 2018, but they must make sure that all relevant documents are uploaded by that deadline.

As with the larger stations, the Commission will help out in the process by automatically adding to the online public file all applications and reports that are electronically filed with the Commission. Again, however, anything prepared at the station and not filed as a part of an electronic FCC form, which would include quarterly issues/programs lists, EEO public file reports, certain AM applications, etc., must be uploaded by the station.

Stations must also ensure that the proper link to the online public file and the name of a contact person to help those with disabilities are included on their own websites by March 1, 2018.

Non-commercial Educational Stations and Political File Material: As a reminder, we note that under Section 399(b) of the Communications, Act, NCE stations are prohibited from selling spots to political candidates (whether local, state or federal candidates). Also, NCE stations are not required to provide free time to any candidates, and are not required to provide reasonable access for candidates for federal offices. Accordingly, NCE stations may well not have a political file.

Final Word of Caution as to Public File Compliance: The Public File requirements are continuing in nature. Each licensee is asked to certify, in its license renewal application (FCC Form 303-S), that it has complied fully with the rules relative to the regular maintenance of the file. That certification requires that the applicant certify not only that it has placed the required materials in the file, but also that it has placed those materials there at the appropriate time. Failure to provide such a certification (or, even worse, providing an incorrect certification) may result in a hefty fine or even designation of a station’s license for hearing. Further, with the introduction of the online public file for some stations, the FCC staff can easily review those stations’ public inspection files (including the upload date of various documents) for compliance and the correctness of a certification.

In fact, during the last renewal cycle, staff members did so review TV stations’ online public files. As a result, any tardiness in including documents in the online public file should be listed and explained in the next license renewal application in order to avoid adding a penalty for failure to report on top of whatever penalty might be assessed for the public file problem.

Likewise, if a report was filed in another of the Commission’s electronic systems, but some glitch resulted in its not being automatically included in the public file, the Commission faulted the licensee (not itself) for that failure. This brings us to another caution – while stations may generally rely upon the Commission to move electronically filed documents into the online public file, it is incumbent on the licensee to make sure they actually land there. If not, the station must upload the document in question itself.

If you have any questions as you implement the transition to the online public file, please contact your attorney here at FHH.