Broadcasting and Cable magazine today reported that the FCC is looking to back off some of the requirements for the "enhanced disclosure" of television broadcaster's public interest programming (see our summary of the new requirements of FCC Form 355, here). B&C reports that the FCC may lessen or at least better explain some of its new reporting requirements to try to avoid having these rules being struck down by the Courts as being arbitrary and capricious, or to avoid further proceedings which might be ordered by the OMB were it to determine that the rules violated the Paperwork Reduction Act. We have speculated as to the likelihood that these rules, requiring substantial new burdens on television broadcasters, would have difficulty surviving OMB review. How could these burdensome rules, which the FCC has effectively stated have no regulatory purpose as the Commission has no requirements for any percentages of any particular type of programming (see our post here) possibly be justified under a Paperwork Reduction Act analysis - much more paper for no specific regulatory purpose simply does not seem to provide any justification for the new rules? A Paperwork Reduction Act analysis focuses on the burden on small entities. The new enhanced disclosure rules do not exempt small broadcasters. B&C suggests that an exemption for noncommercial stations may be one of the changes to be made by the FCC - certainly a welcome change but hardly enough to help small market commercial TV operators who will be hardest hit by these rules.
We would certainly not be surprised by the FCC lessening the burden that they have imposed on television broadcasters. We have seen Commission staffers in public forums express surprise at the descriptions of the burdens that these rules place on television broadcasters. And we have noted the slow pace with which these rules have been rolled out - having been adopted in December, the text of the decision coming out in January, and they still are not effective. We will all have to watch closely to see if this press report is accurate and the FCC in fact reconsiders its Enhanced Disclosure requirements. Stay tuned.