FCC Launches Further Proceeding on Online Posting of TV Station Public Files and Announces Plans to Reexamine “Enhanced Disclosure” of TV Public Interest Programming
The FCC announced yesterday that it is abandoning its existing, but never implemented, 2007 regulations governing both online posting of TV station public files and so-called “enhanced disclosure” of local and public interest TV programming. This action comes in response to multiple petitions for FCC reconsideration, and court challenges, including those filed by broadcasters arguing that the requirements were insufficiently supported, unduly burdensome, and trampled upon their First Amendment rights. The Commission, however, is also initiating a further rulemaking proceeding with the objective of adopting, on an expedited basis, a new rule largely eliminating the requirement that TV stations maintain hard copy public files at their main studios, and instead requiring them to post on an FCC-hosted website most of the public file material required to be maintained under the FCC’s Rules, as well as some additional information, such as the compete political file. The Commissioners also indicated that they would soon initiate a separate inquiry regarding revision of the enhanced disclosure requirement, including a new standardized reporting system. Online Public File Rulemaking In its Further Notice of Proposed Rule Making (“FNPRM”), the Commission proposes to alter its earlier approach to making commercial and non-commercial TV station public files available online. While the Commission couches the new approach as intended to “reduce burdens” on broadcasters, the proposal incorporates several significant expansions with respect to the information covered. The Commission requests further input on the following key modifications to its prior approach: FCC Hosting of TV Broadcaster Public Files. The Commission proposes that most public file documents be posted on an FCC website, which would allow items such as the station license, pending applications, ownership reports and related information, children’s television programming disclosures, contour maps, EEO filings and DTV transition reports to be imported directly from other FCC databases. This would also allow the FCC to shoulder the technological burdens of making information available to potential users with disabilities, which was a contentious issue in the earlier proceedings. The Commission also asks whether it should post published sanctions, including notices of apparent liability, notices of violation, citations and forfeiture orders, in the online public file. Broadcasters would be responsible for ensuring that all information on the FCC-hosted site is complete, for uploading all other required items not imported from FCC databases, and for maintaining an electronic emergency back-up copy of the entire online file. Inclusion of the Political File. In 2007, the Commission concluded that, due to the scope of the materials included and the frequency with which they must be updated, “the burden of placing [the political file] on the Internet outweighs the benefits.”  In the FNPRM, however, the Commission proposes to include this information in light of its tentative finding that “the vast majority of television stations handle political advertising transactions electronically, through emails and a variety of software applications,” and that these changed circumstances have significantly reduced the previously identified burdens. Inclusion of a List of Sponsored Advertisements. The Commission proposes to require for the first time that TV licensees include in the public file a listing of all advertisements broadcast which “require a special on-air [sponsorship identification] disclosure” under Section 73.1212 of the FCC’s Rules (i.e., those instances where the sponsor’s identity is not evident from a corporate, product or trade name otherwise included in the advertisement). This was raised previously in connection with the FCC’s actions relating to the broadcast of “video news reports” without proper disclosures of sponsorship, but, in the FNPRM, the Commission proposes to make this applicable to all instances of sponsored material where an additional specific announcement is needed. This requirement could lead to unique enforcement and renewal implications for TV licensees. Inclusion of “Shared Service” Agreements. The Commission proposes to require new disclosure of additional types of shared service agreements, not just time brokerage and joint sales agreements, but also other types of local marketing, joint newsgathering and operating agreements. Exclusion of Both Letters and Emails from the Public. Responding in part to privacy concerns raised by broadcasters, the Commission proposes not to require any correspondence from the public relating to station operations to be included in the online public file. Instead, each station would be required to continue to include such correspondence, both letters and emails, in a publicly-available file located at the station’s main studio. Nonetheless, the Commission seeks comment on whether it should require TV licensees to catalog such letters in some way. For example, one interest group has proposed that TV licensees be required to file a quarterly report on the number of such letters received. The Commission is expected to move quickly on the FNPRM, with the adoption of a revised rule expected by spring. As indicated above, the current proposals apply only to TV licensees, with the Commission indicating that it will consider adopting similar requirements for radio licensees at a later date. Enhanced Programming Disclosure Inquiry The Commission also announced that it would soon issue a separate Notice of Inquiry (“NOI”) seeking input on a revised approach to its previously adopted enhanced disclosure rules, which in their original form would have required all TV stations to prepare dramatically expanded quarterly reports detailing programs that they aired in numerous categories of “public interest” and locally-oriented programming. These reports would have been required to be submitted on a standardized FCC form (Form 355) in place of the current TV quarterly issues/program listing. Few details of the forthcoming NOI were revealed. According to Chairman Genachowski, this initiative is also expected to proceed on a fast track and to be resolved within the same timeframe as the FNPRM. *          *          *          *          * Broadcasters’ opposition to the original onerous online public file and Form 355 disclosure requirements has met with significant success, and has forced the Commission to rethink its original approach. However, if broadcasters’ well-reasoned arguments are to continue to shape the revised public file and programming disclosure rules, they will need to participate with equal vigor in these follow-on proceedings. As noted above, both the FNPRM and the NOI are expected to proceed on an expedited basis. We will provide further information on the comment deadlines once the FNPRM is published in the Federal Register, and will provide a separate memo concerning the NOI once is the Commission adopts and releases it. If you have further questions about these proceedings or would like to file comments in this proceeding, please contact any attorney in our office. October 28, 2011
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