The Care and Feeding of the Broadcaster's Public Inspection File - An FCC Reminder and a Compliance Seminar
The care and feeding of the broadcaster's public file is a hot topic once again. For many years, the public file was often overlooked, being visited most often by competing broadcasters looking for dirt on their cross-town rivals, or by college journalism students assigned a project by their professor requiring the review of local stations' files. But, with the debate that occurred earlier this year over the online public file for television stations, the file has received much publicity, being the subject of review and analysis in the popular and academic press, as well as in the broadcast trade journals. This week, the FCC issued a reminder about the obligations of a television broadcaster for complying with the public file rules (see that reminder here). In the past two weeks, I've conducted two seminars for broadcast groups on the public file obligations of stations. The first was a webinar for 20 state broadcast associations and their members, organized by the Michigan Association of Broadcasters. The PowerPoint slides used in that presentation are available here.
The slides set out information about the importance of the file, and provide some description of the required contents of the file, and the retention period for documents that need to be contained in the file. Radio stations have the obligation to place all of the required documents in their local, paper files and maintain them there for the appropriate period of time. TV stations, with the advent of the FCC-hosted public file (see one of our previous posts on the mechanics of the online file here), actually have a somewhat easier time in meeting some of their obligations – as the FCC itself will post to the file all documents that stations are required to file with the FCC – including renewal and technical applications, ownership reports, children's television reports, coverage maps, the station license and the Public and Broadcasting procedure manual. Radio stations need to find all of these documents and manually place them into their files. TV stations need only upload other information that is not filed at the FCC – like Quarterly Issues Programs lists, annual EEO Public File Reports, and certifications as to the station's compliance with the Children's television commercial limits. Beyond these basics, in the seminars that I recently conducted, several other interesting questions were raised.
One question has to do with the Annual EEO Public Inspection File Report that all broadcasters with 5 or more full-time employees must place in their file each year on the anniversary date of the filing of the license renewal applications by stations in the state in which their city of license lies. The most current EEO report must be posted on a station's website, if the station has a website. For radio stations, and in the past for TV stations, this meant uploading an EEO report to the station's website, and placing a link on the homepage where that report could be found. In the paper file, a station had to keep all of the EEO Public File reports back to the beginning of the current renewal period. Now, as TV stations have to upload all of these reports to their online file, TV stations need not actually host an EEO Public File Report on their own site, but they can instead link to the folder on their FCC-hosted public file that contains the EEO Public File reports.
The political file is another area where there are wrinkles that TV stations need to consider, as that part of the file was (and remains) the most controversial requirement of the online file rules, and the one most likely to be scrutinized by public interest groups. As the FCC's public notice released this week makes clear, political file records created prior to the August 2, 2012 effective date of the online public file rule do not need to be uploaded to the online public file – ever. Even though all TV stations have an obligation to upload other contents of their public file that were created prior to August 2 onto their online files by February 2, 2013, the Public Notice makes clear that this does not include political files contents that were created prior to August 2 – for both Big 4 Network affiliate stations in the Top 50 markets that had to upload into the online file all political file contents created after August 2, and for all other TV stations whose online political file obligations don't kick in until July 2014.
Items in the political file must be retained for two years. Letters and emails from the public about station operations that broadcasters stations must maintain in their files are not to be uploaded into the online file, but instead will will remain in a paper public file of TV stations for the foreseeable future. Like radio stations, TV stations must continue to make public access available to members of the public during normal business hours. As we have written before, stations can face fines if they restrict access to the paper file, or if they question the motivation of those who come to visit that file. At the two recent seminars on the file, I was asked what "normal business hours" are. As far as I can see, these hours are not defined by FCC rules. But it seems to me that stations should be open, with their files accessible, for an 8 hour period each day, Monday through Friday, except for recognized holidays – the exact 8 hours probably being up to the reasonable discretion of the licensee. Remember to alert your receptionist or other studio employees to make the file available – and let them know where it is, so that a visitor does not get the run-around when they try to visit the file.
The political file remains a source of controversy – see this article by a DC public interest group claiming that the information in TV station's political files is voluminous and hard to interpret. This may well be a case of "I told you so", as broadcasters had suggested that the FCC, instead of requiring information about each order for political time being required to be in the file (and each change to an order, and information about when the order was fulfilled – all of which clog the file), that broadcasters instead simply post a weekly total of the amount of money spent by each political candidate on their stations. This summary information would have been much more readable and easily understandable by the public – yet the proposal was rejected by the FCC. Perhaps, over time, that issue will be revisited by the FCC. Sometimes too much information is not a good thing.
But, for now, broadcasters should be aware that their public files are being watched, and they need to be properly maintained. The FCC has not hesitated to issue big fines for public file violations in the past, and it will no doubt continue to do so in the future – both for radio and TV stations. Know the legal requirements and observe them!