While rumors are flying that the FCC is rushing to adopt its proposals to require that TV stations put their public inspection files online (see our summary of the proposals here), both the FCC and public interest groups are targeting the public files of television stations – looking to copy some or all of those files. Rumors are that the FCC inspected the public files of all television stations in at least one city – and asked for copies of the complete files to be produced at the FCC within a day or two, in some cases requiring the copying of several file cabinets worth of material very quickly. Whether this inspection is a one-shot deal or the start of a program to audit the files of TV stations across the country is unclear. At the same time, public interest groups have been urging their members to inspect TV station public files across the nation, to copy parts of those files, and to post the information that they collect online. TV stations across the country need to be prepared for these inspections.
Why these actions now? Some may think that the FCC is just conducting a random audit, while others may suggest that the demand for complete public files is just a fact-finding mission as part of its rulemaking process. The more suspicious of broadcasters may think that this represents the FCC sending a message that the online public file is coming, and stations may find it easier to accept the online file rather than facing these demands for the instant reproduction of their entire files to be inspected at leisure in Washington.
The most controversial part of the FCC’s proposal has become the issue of putting the political file online – and that is also the part of the file that seems to be the principal target of the public interest groups. In a story run in January on public radio’s On the Media, Steve Waldman, who was in charge of the FCC Future of Media Report (which we summarized here when it was released as the report on The Information Needs of Communities), suggests that broadcasters’ opposition – that there is too much information that comes in too fast during political season to be put online without substantial inconvenience and expense - somehow shows that broadcasters are not making the best use of technology, implying that the online public file should be viewed as a way of streamlining the stations’ recordkeeping. Listen to that interview here.
But this completely misses the mark. Few, if any, TV stations don’t already use computerized sales and logging (i.e. scheduling) systems to manage their advertising sales and its insertions into broadcast programming. TV stations are hardly the technological backwaters suggested in the interview. The issue is not computerizing the station’s business records. Instead, the real issue is computerizing the records and making them available to the public in a format that the FCC dictates - a format that has not even been developed and will certainly not be the same format in which stations keep their internal records.
The FCC several years ago asked for the online reporting on station ownership in a form redesigned by the FCC supposedly to allow it to be searchable by the public. That public search function still has not been available well over two and a half years after the form first went online, and most stations find the system to be very user-unfriendly and time-consuming to prepare. And Ownership Reports are filed only once every two years. For reports that need to be updated daily - even hourly at the height of political season – it is simply unreasonable assume that there will not be a substantial burden on broadcasters to convert their information to an FCC-mandated format to report on the dozens of political buyers who are buying and running ads on a daily basis on many television stations in the weeks leading up to any election.
While there have been some rumors that the FCC is thinking about backing off of the demand for a searchable database in which to upload these forms, even scanning and uploading the forms onto an FCC database of some description will require a whole new burden on broadcasters (see our article here about the FCC’s obligation to evaluate that burden).
Just what is the justification for this burden? It does not seem to be one that is rooted in Communications laws, or in fact to have anything to do with the operations of television stations. Instead, public interest groups seem to be saying that the public has a right to know how much is being spent on broadcast advertising by candidates and third-party groups – right down to the amount that is spent by particular candidates on particular stations for a particular flight of advertising spots - and that these facts should be available nationwide. So, rather than focusing on facts that reveal how a broadcaster is serving its community, as most FCC regulations do, the justification for the online political file is one of looking at information about candidate and PAC spending in Federal races. Is this a justification for imposing burdens on broadcasters? Shouldn’t these burdens instead be put on the candidates that these groups seem to want to regulate – the candidates and PACs?
While much of the focus on the effort to force broadcasters to put their public file online has been focused on the political file, that is not the only issue that could cause concern. As we wrote when we summarized the proposal advanced by the FCC in its notice of proposed rulemaking, we are also concerned about the brand new requirement for broadcasters to post information about sponsorship identification in their online file. The proposal for this information was not really spelled out in detail in the NPRM, and it is not information that is currently required in the public file (with the limited exception of sponsorship information for issue advertising). What will this new obligation entail?
We may not have long to wait to find out. Rumors had been that the FCC was trying to get the item ready for the March open meeting – a deadline that was obviously missed. Now the target seems to be April. So, as broadcasters head to Las Vegas for their annual convention in the middle of the month, they may well be facing new obligations so that the public can learn how much candidates are spending on their stations.