Posted on October 6, 2011 by David Oxenford

TV Public Interest Obligations and Online Public Inspection File on Agenda for Next FCC Meeting

Online public files, detailed reports about virtually every program aired on a television station as to its source and whether it addressed various types of perceived community interests, and other paperwork requirements that would have required most television stations to hire a new employee just to deal with the burden, were all part of mandatory television public interest reporting requirements adopted by the FCC back in 2007 (see our articles here and here on these reports on FCC Form 355).  Similar obligations were also proposed for radio but never adopted.  The TV "enhanced disclosure" rules have never been implemented, however, and were apparently never even submitted to the Office of Management and Budget  for approval of their compliance with the Paperwork Reduction Act.  The numerous petitions for reconsideration filed against these rules are on the tentative agenda for the next FCC meeting, to be held on October 27.  Not only is the disposition of these petitions on the agenda, but a proposal for a further proceeding to look at new requirements for an online public file, to be hosted by the FCC, is to be considered at the same time.  What can broadcasters expect to happen?

In the Future of Media Report issued by the Commission earlier this year (actually renamed the Report on the Information Needs of Communities), the FCC study group recommended abolishing these 2007 rules, and terminating the proceeding looking at imposing them on radio (see our summary here).  The Report seemed to recognize that the reports were far too burdensome on licensees, and were not reasonably related to the current FCC rules on programming.  In essence, the reports required the collection of lots of information, without any regulatory purpose for the information collected.  In light of these findings, and the 4 year delay in implementing the rules already adopted, it seems safe to conclude that the 2007 rules are probably on their way out.  But the accompanying notice suggesting that the FCC will begin a new rulemaking to look at the online public inspection files, to be hosted by the FCC, raises questions about what will replace the 2007 rules.

The Future of Media Report also suggested that the FCC and the public had no current way to determine whether broadcasters were serving the public interest, and no objective standards by which such service would be judged.  The Report did not suggest any concrete actions in this regard, other than to require more online disclosure of the public interest programming of broadcasters - though in a form more easily accomplished than that required by the 2007 rules.  The findings of the FCC's study were seized on by some of the media watchdogs and "public interest" groups active in broadcast matters, to argue for more reporting by broadcasters.  In recent weeks, including at the recent FCC public hearing held in Arizona to discuss the findings of the Future of Media Report, there have been suggestions that the FCC was sensing "renewed interest" in the questions of the public interest standards that should be applicable to broadcasters.  This new proceeding looks to reimpose some sort of online public file requirement.  From the brief description in the FCC's notice about the upcoming meeting, it seems that the FCC is proposing that every station's public file would be hosted by the FCC (which would presumably mean filing all public file documents with the FCC).  This may be the first step in attempts to better define the public interest requirements of broadcasters. 

This will be an important meeting for broadcasters (one of the few FCC meetings discussing broadcast issues in the last year).  And, as any TV rules may well shape future obligations for radio operators, all broadcasters need to be paying attention to the decisions reached and the suggestions made in the Further Notice of Proposed Rulemaking.  So pay careful attention to the results of this upcoming meeting. 
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Posted on June 9, 2011 by David Oxenford

Recommendations from the Future of Media Report: End Localism Proceeding, Require More Online Public File Disclosures of Programming Information, Abolish Fairness Doctrine

The FCC today heard from its Future of Media task force, when its head, Steven Waldman presented a summary of its contents at its monthly meeting.  At the same time, the task force issued its 475 page report - which spends most of its time talking about the history of media and the current media landscape, and only a handful of pages presenting specific recommendations for FCC action.  The task force initially had a very broad mandate, to examine the media and how it was serving local informational needs of citizens, and to recommend actions not only for the FCC, but also for other agencies who might have jurisdiction over various media entities that the FCC does not regulate.  Those suggestions, too, were few in the report as finally issued.  What were the big headlines for broadcasters?  The report suggests that the last remnants of the Fairness Doctrine be repealed, and that the FCC's localism proceeding be terminated - though some form of enhanced disclosure form be adopted for broadcasters to report about their treatment of local issues of public importance, and that this information, and the rest of a broadcaster's public file, be kept online so that it would be more easily accessible to the public and to researchers.  Online disclosures were also suggested for sponsorship information, particularly with respect to paid content included in news and informational programming.  And proposals for expansion of LPFMs and for allowing noncommercial stations to raise funds for other nonprofit entities were also included in the report. 

While we have not yet closely read the entire 475 page report, which was tiled The Information Needs of Communities: The Changing Media Landscape in a Broadband Age, we can provide some information about some of the FCC's recommendations, and some observations about the recommendations, the process, and the reactions that it received.  One of the most important things to remember is that this was simply a study.   As Commissioner McDowell observed at the FCC meeting, it is not an FCC action, and it is not even a formal proposal for FCC action.  Instead, the report is simply a set of recommendations that this particular group of FCC employees and consultants came up with.  Before any real regulatory requirements can come out of this, in most cases, the FCC must first adopt a Notice of Proposed Rulemaking, or a series of such notices, and ask for public comment on these proposals.  That may take some time, if there is action on these suggestions at all.   There are some proposals, however, such as the suggestion that certain LPFM rules be adopted in the FCC's review of the Local Community Radio Act so as to find availability for LPFM stations in urban areas, that could be handled as part of some proceedings that are already underway.

A second observation is that all of the conclusions reached in this study are not necessarily objective proposals, made in a vacuum.  Instead, they reflect the perceptions and possible prejudices and political objectives of its authors and editors.  There have been trade press reports that the report was subject to a lengthy editing process in the Chairman's office.  Thus, there are conclusions that one might expect given positions that have been taken publicly by the various players at the FCC.  For instance, there is a ringing endorsement of the importance of broadband. With the emphasis that the report puts on disclosure of community service programming and other matters by broadcasters needing to be done online, one can almost sense that the FCC feels that for something to be "real" or "meaningful", it must be done online.

The conclusions about LPFM seem similarly to be drawn from inherent perceptions, not from statistical analysis.  The study, in its initial analysis of the state of LPFM, states that any detailed information on the performance of LPFM stations generally is difficult to come by.  At best, they cite a few anecdotal reports of how such stations are serving their communities.  Yet, the report reaches the conclusion that the Commission, in implementing the Local Community Radio Act, should interpret that act to ensure that LPFM stations have access to urban audiences, without any assessment of conflicting positions that others may have on that issue.

But, if perceptions color the results, broadcasters can actually feel somewhat comforted in that some of their message is being heard at the FCC.  The report does find that the public trustee model of regulating broadcasters is "broken."  That model of course mandates that the broadcaster, in exchange for its use of the public spectrum, must broadcast programming that serves the public interest.  The report looks at the last 30 years of broadcast regulation, and finds that no broadcast station has lost its license for not serving the public interest.  It also questions the use of quarterly program issues lists as providing the basis of reviewing the service provided by broadcasters, as these lists are not filed with the FCC, are not uniformly kept, and are not regularly reviewed by anyone but the broadcaster.  

However, even though the report finds the public trustee model to be broken, it does not suggest a raft of new detailed regulations for broadcasters to follow (although Commissioner Copps, in his statement on the report, seems to suggest that the study should have suggested that kind of regulatory scheme).  Instead, the report seems to suggest that, if the public has more information about the performance of broadcasters, it should be able to better judge the performance of those broadcasters.  Thus, the report suggests the on-line public file.  It acknowledges that the Enhanced Disclosure forms that were adopted three years ago for TV stations, but never implemented, were excessive in their requests for information.  The report suggests that, instead, broadcasters provide a simpler, more streamlined on-line report as to their public interest programming (of course, no form is supplied, so how simple such a form would be is impossible to ascertain).  Moreover, the report suggests that the Localism proceeding, which many broadcasters had feared because of its very specific prescriptions as to how every station should operate, be terminated by the FCC - stating that many of the proposals in that proceeding were unduly burdensome. 

The report also suggests that more sponsorship information be provided by broadcasters as to the source of material contained in their news reports.  The concept of the video news release (which we have written about here) seemed to weigh on the report's writers.  They suggest that disclosure of where content in news programs originated be made not only on the air, but also online.

The Fairness Doctrine also was addressed by the report.  The authors find that the Doctrine inhibited the production of news, and was therefore properly found unconstitutional by the FCC in the late 1980s.  The report suggests that the FCC rule setting out the Doctrine be specifically repealed.  At the public meeting, Mr. Waldman suggested that this would mean that all shards of the Doctrine would be removed - perhaps at long last ending the specter of the Zapple Doctrine that we have written about from time to time during political seasons.

In discussing noncommercial programming, the report suggests, in response to a proposal from the National Religious Broadcasters Association, that the prohibition in FCC policies against noncommercial stations fundraising for other local nonprofit organizations be repealed or modified.  Waldman suggested that it made no sense that a noncommercial religious station could not do a fundraiser for some local soup kitchen, when the FCC has regularly waived that rule for fundraisers for distant disasters (see our posts on Haiti and Japan relief, where we raise that question).

There are many other nuggets buried in this report that we will no doubt discover as we read it in depth. While the report was simply a study, it was a study done with the cooperation of much of the FCC staff.  So ideas and opinions expressed in the study may give broadcasters a good barometer of the attitudes of some at the Commission.  So we will slog through the remainder of the report to see what we can find.  Watch for more articles on the findings and implications of the report in coming days. 
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Posted on September 15, 2008 by David Oxenford

Will the FCC Back off on its TV Enhanced Disclosure Requirements?

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. 

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Posted on July 14, 2008 by David Oxenford

OMB Throws Out Leased Access Rules as Violation of Paperwork Reduction Act - Will TV Enhanced Disclosure Be Next?

Last week, the Office of Management and Budget determined that the FCC's new rules on Leased Access to cable channels (see our bulletin describing those rules) violated the Paperwork Reduction Act. This means that the new rules, which would have significantly lowered the cost for parties who wanted to lease cable channels to provide their own programming, will be sent back to the FCC for further consideration.  These rules are also on appeal to the Courts, which had stayed the effectiveness of the rules while the appeal is being considered, which is usually a good indication that the Court had issues with the rules as well.  The OMB action has the effect of returning the rules back to the FCC to be considered anew in light of the OMB findings.  Our firm has prepared a memo detailing the decision, here.  Given the OMB decision that these rules imposed too great a burden on cable systems, one wonders if this decision portends a similar result when the OMB reviews the FCC's rules on Enhanced Disclosure and an on-line public inspection file - rules that would impose a significant burden on television broadcasters (about which we wrote here).

The OMB decision on the leased access rules highlighted some of the perceived shortcomings of the FCC decision, including that the FCC had not shown that they had taken steps to minimize the burden on companies who would have to hire staff to comply with the new rules, and they had not provided reasons why reduced timeframes for responses to requests for leased access were necessary.  Looking at these standards, one would have to think that much of the same reasoning would apply to the FCC's Enhanced Disclosure requirements for TV stations as set out in the new Form 355.  The completion of the Form would clearly require the hiring of new staff.  We've also questioned whether the Commission has given any justification for the increased paperwork requirements, as the information itself has no regulatory purpose as the FCC has not adopted any quantitative standards for public interest programming.  With no purpose and increased costs, how could the OMB treat the enhanced disclosure requirements differently than it did the leased access requirements?

It's also interesting to note that both the leased access decision and the Form 355 were adopted at the Commission's November 2007 meeting.  Yet the Form 355 and the requirements for on-line public files still has not been considered by the OMB.  Perhaps the FCC recognizes its problems and intends to address the issues on reconsideration, in an attempt to minimize the burdens.  If not, watch for the OMB review, and see if indeed this decision portends good news for broadcasters when the the Form 355 is considered under the provisions of the Paperwork Reduction Act.
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Posted on May 15, 2008 by David Oxenford

Broadcasters and the Regulatory Pendulum - Swinging Toward More Regulation

In recent months, the broadcast industry has experienced one of the most active periods of regulatory activity in recent memory. Since November, the FCC has adopted enhanced disclosure obligations concerning the public interest programming of television broadcasters and requirements for an on-line public inspection file; rejected most calls for increased deregulation of broadcast ownership (allowing only the cross-ownership of broadcast stations and newspapers in the largest markets); established specific prohibitions against advertising practices that involved “no Spanish, no urban dictates”; placed mandatory disclosure obligations on television broadcasters in connection with promotion of the DTV transition; proposed rules that could favor low power FM stations over improvements in full-power broadcast services and existing FM translator licensees; and proposed sweeping regulation of broadcasters which could potentially require specific amounts of nonentertainment programming by all stations, restrict the flexibility of broadcasters' location of their main studios, require 24-7 live staffing for all stations that operate on that basis, and perhaps even evaluate the music selection process of radio operators. Rumored to be in the offing are proposals to regulate embedded advertising, to adopt enhanced rules on sponsorship identification in connection with video news releases and payola-like practices, and perhaps even expand EEO reporting requirements (as the FCC recently asked for public comment on the employee-classification information for its long-suspended requirements for the filing of FCC Form 395 – the Annual Employment Report in which stations categorize all their employees by their employment duties, race and gender). And Congress has not been idle, with proposals introduced for the adoption of a performance royalty on over-the-air radio for the use of sound recordings, hearings about potential restrictions on prescription drug advertising, and a proposal to roll back the limited ownership reform adopted by the Commission in December.

With all this activity in a six month period under a Republican administration with a Republican majority on the FCC, during a time of great turmoil in the broadcast industry itself, as television prepares for the digital transition and broadcast revenue growth is slow or nonexistent (based on a variety of factors including general economic conditions and competition from the plethora of new media choices), many broadcasters are wondering what’s going on? And some fear even more changes could come about in any new administration that may come to Washington after the November elections, no matter what the result of that election. The one candidate with the most experience in the regulation of broadcasting, Senator McCain who has chaired the Senate Commerce Committee which regulates the broadcast industry, has by no means been a captive of the broadcast industry – leading efforts to enhance the use of LPFM and at one point pushing a spectrum tax proposal for television broadcasters for the use of the digital spectrum.

So what is going on? There was an interesting article in the Wall Street Journal several weeks ago discussing the cyclical nature of government regulation. While the article focused on the financial industry and the calls for re-regulation in light of the subprime mortgage problems, the thesis of the story is equally applicable to the broadcast industry. After almost 25 years of gradual deregulation by the FCC under both Republican and Democratic administrations, where the general consensus was that the less government regulation was better and more reliance on marketplace forces would insure service to the public, the regulatory pendulum has swung back with a vengeance in broadcasting, paralleling moves in almost every industry toward a more aggressive role of the Federal government. Proposals for regulation of broadcasting are simply falling into line with proposals for greater regulation of financial institutions and mortgage companies, airlines, consumer product safety matters, and environmental regulation, just to name a few.

Soon after I graduated law school and started representing broadcasters in 1980, the FCC began the deregulatory progression. Many of the issues that I dealt with in the first few years of my legal practice disappeared – ascertainment, quantitative program obligations, the regulatory “underbrush” (regulations governing many very specific advertising and operational practices of broadcast stations – from restrictions on horse racing ads to FCC enforcement of fraudulent billing practices of some radio stations and even the regulation of whether a station used accurate coverage maps in its promotional materials). At that point in my career, a senior lawyer told me that this was all part of a regulatory cycle that swung from more regulation to less than back again. While I was skeptical at that time, it appears that these statements are now, some 25 years later, being borne out. So, for what little comfort this may provide, the cycle will no doubt at some point run its course and the pendulum will begin to swing back in a more deregulatory direction at some point in the future. Let’s hope that this point is not too far in the future and, during this more regulatory phase, the regulators take the reality of the business into account, and don’t take actions that could, during this time of increasing turmoil in the business, jeopardize the robust over-the-air broadcast business that we have enjoyed for so long .
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Posted on April 17, 2008 by David Oxenford

FCC Form 355 - A Form Without a Reason?

The FCC Form 355 requiring "enhanced disclosure" by television stations was a frequent topic of discussion at this week's NAB Convention in Las Vegas.  That form will require that television broadcasters report significant, detailed information about their programming, providing very detailed reports of the percentage of programming that they devote to news, public affairs, election programming, local programming, PSAs, independently produced programs and various other program categories, as well as specifics of each program that fits into these categories (see our detailed description of the requirements here).  Obviously, all broadcasters were concerned about how they would deal with the expense and time necessary to complete the forms, and the potential for complaints about the programming that such reports will generate.  At legal sessions by the American Bar Association Forum on Communications Law and the Federal Communications Bar Association, held in connection with the NAB Convention, it became very clear to me that the obligations imposed by these new rules are obligations adopted for absolutely no reason, as the Commission has not adopted any rules mandating specific amounts of the types of programming reported on the form.  In fact, one of the Commissioner's legal assistants confirmed that, unless and until the FCC adopts such specific programming requirements, the Commission's staff will not need to spend any time processing these forms.  Thus, if the form goes into effect, broadcasters will be forced to keep these records, and expend significant amounts of staff time and station resources necessary to complete the forms, for essentially no purpose.

Of course, public interest advocates will argue that the forms will allow the Commission to assess the station's operation in the public interest, and will allow the public to complain about failures of stations to serve local needs.  But, as in a recent license renewal case we wrote about here, the Commission rejected a Petition to Deny against a station based on its alleged failure to do much local public affairs programming as, without specific quantitative program requirements, the Commission cannot punish a station for not doing specific amounts of particular programming. If the Commission adheres to this precedent, it will not be able to fine stations for the information that they put on the Form 355, but only for not filing it or not completing it accurately.  Thus, unless the Commission adopts specific programming requirements, the form will be nothing more than a paperwork trap for the unwary or overburdened broadcaster.  And, as is usually the case with such obligations, the burden will fall hardest on the small broadcaster who does not the staff and resources to devote to otherwise unnecessary paperwork.

We are certainly not advocating the adoption of such programming requirements.  In fact, we believe that such standards would be constitutionally suspect and would end up forcing all stations into cookie-cutter images of each other - at a time when the plethora of media choices now available demands that each station adopt a targeted identity catering to the needs of a unique and specific audience.  And in tailoring its service to specific audiences, a station cannot be constrained by specific program percentages, as each audience may have the same needs - some will not sit still for traditional news and public affairs programming, while others will demand it.  Forcing all stations to provide the same program choices simply leaves some audiences unserved.  While this may be most evident in radio, television will adapt too as there are more and more outlets for video programming.   TV will have to seek out the niches at which it will direct its programming.  Mandating a specific percentage of news, public affairs, election coverage, religious programming or anything else simply will not serve the public's interest in receiving wide and diverse programming choices.  For the individual consumer, having the programming that he or she wants when they want it is more important than insuring that some percentage of that station's programming is made up of local news.

As one broadcaster observed to me, these rules may have made some sense when broadcasters were all mass market stations, providing "full service" programming to their communities.  That was a time when there were few media outlets in each market, and to maximize audience, each station had to try to serve all elements of the community.  Now, as broadcast stations compete against programming coming from cable, satellite, Internet, mobile and other platforms, there really are few if any full-service stations, particularly in large broadcast markets.  Even broadcasters themselves, as they adapt to the multicast opportunities that are presented by digital transmission, will provide more competition in a marketplace, and hasten the need for focusing on the superserving the needs of particular audiences.

For now, the NAB is challenging in Court the implementation of the Form 355.  How the Commission will justify its retreat from the deregulation of the 1980s when it admits that this form currently serves no regulatory purpose is hard to imagine.  In the interim, comments on the potential for the adoption of specific quantitative programming obligations, as part of the Localism proceeding (see our summary here), are due on April 28.  Broadcasters should file comments to make sure that the Commission understands the current competitive marketplace, and how their programming will be constrained if they were all forced to adhere to the same arbitrarily set programming obligations for various categories of various types of programming.  It is a crucial proceeding that could determine the future of the broadcast industry - be sure to participate.
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Posted on January 26, 2008 by David Oxenford

FCC Releases Rules for Enhanced TV Disclosure Requirements

The FCC has released the full text of its Order adopting enhanced disclosure requirements for broadcast television stations - requiring that they post their public files on their websites and that they quarterly file a new form, FCC Form 355, detailing their programming in minute detail, breaking it down by specific program categories, and certifying that the station has complied with a number of FCC programming rules.  The Commission also released the new form itself and, as detailed below, the form will require a significant effort for broadcasters to document their programming efforts - probably requiring dedicated employees just to gather the necessary information.  The degree of detail required is more substantial than that ever required of broadcasters - far more detailed than the information broadcasters were required to gather prior to the deregulation of the 1980s - though, for the time being, much (though not all) of the information is not tied to any specific programming obligations set by the FCC.

 Before getting to the specifics of the new requirements, the thoughts of the Commission in adopting this order should be considered.  The Commission's decision focuses on its desire to increase the amount of citizen participation in the operation of television stations and the decisions that they make on programming matters.  While many broadcasters protested that the public rarely cared about the details of their operations, as evidenced by the fact that their public files were rarely if ever inspected, the Commission suggested that this was perhaps due to the difficulty the public had in seeing those files (the public actually had to go to the station to look at the file) and the lack of knowledge of the existence of the files (though broadcasters routinely broadcast notice of the public file's existence during the processing of their license renewal applications, rarely producing any viewers visiting the station to view the file).  With respect to the new Form 355 detailing the station's programming, the Commission rejected arguments that reporting of specific types of programming in excruciating detail imposes any First Amendment burden on stations, as the Commission claims that it has imposed no new substantive requirements.  Yet the Commission cites its desires that the public become more involved in the scrutinizing of the programming of television stations, which it states will be aided by the new form, and also emphasizes the importance that the Commission places on local service (an item detailed in Form 355).  At the same time, in its proposals detailed in its Localism proceeding (summarized here), the Commission is proposing rules requiring specific amounts of the very programming that is reported on Form 355, the very numbers that, in this proceeding, it claims have no significance.  Moreover, citizens will be encouraged by the Commission's actions to scrutinize the new reports, and file complaints based on the perceived shortcomings of the broadcaster's programming.  Broadcasters in turn will feel pressured to air programming that will head off these complaints.  So, implicitly, the Commission has created the First Amendment chilling effect that it claims to have avoided.

In the order, the FCC also minimizes the costs of complying with its new requirements.  The Commission suggests that the costs of digitizing a public inspection file would "involve a one-time cost of $15,000," and then could be maintained on a server for less than $20 a month.  Even if this cost is accurate (and as set forth below, there are reasons to doubt this), for a small market television station even that cost can be quite significant.  While the Commission suggests that small stations with minimal website operations can request a waiver of these requirements, it sets no standards by which such a waiver will be judged.  Similarly, the costs for the constant review of a station's programming necessary to complete the Form 355 will be substantial, as every day's programming will need to be timed, classified, and recorded so that the weekly averages that are reported on the Form can be computed, and as the report requires a complete catalog of all public interest programming.  Someone will have to make those computations, and prepare the required descriptions of the public interest programming, again not an insubstantial cost, especially for a small market station (and even for some larger market stations).  And for what purpose?  The Commission implies that it is for the greater good that will come from the information reported in the form - information which, as stated above, in the Commission's own eyes is currently of no regulatory significance.

These issues may well be played out in appeals or requests for reconsideration of the new rules.  But, unless and until the rules are changed, broadcasters will need to comply with the new requirements.  First, the provisions governing the on-line maintenance of the public file include the following (with our observations in parentheses):

  • The Rules will become effective 60 days after the notice of their approval by the Office of Management and Budget (as required by the Paperwork Reduction Act - this is paperwork reduction?) is published in the Federal Register.
  • Stations can either post the public file contents on their own website, or on the website of their State Broadcast Association (why would the Association volunteer to do that?).  Even if the State Association agrees to host the website, the station must have a link on its website to the report. 
  • If a station has no website, it does not need to create one to comply with these rules (and it has no obligation to place the file on the State Association site).  But if it later develops a website, it must have the public file contents posted within 30 days.
  • The contents of the political file do not need to be posted on the website
  • Letters from the public do not need to be posted on the site - though emails from the public should be posted
  • Documents that are posted on other sites, including the FCC site, need not also be stored on the station site, if a link to the documents is placed on the station's site
  • The file must be accessible to the disabled, complying with Conformance Level A of the World Wide Web consortium's Web Content Accessibility (W3C/WAI) guidelines.  (Information may be found here).  This may preclude some files being stored solely in a PDF format (and will no doubt cause some consternation among those at stations, who we would expect to be most people, not familiar with these standards). 
  • Twice each day, the station must publicize on the air, with its station identification, the availability of the file on the website.  At least one of those mentions must be between the hours of 6 PM and midnight.

The FCC Form 355 requires information including the following:

  • A list of the station's programming streams (i.e. the analog channel and any digital multicast program streams) and "their main programming focus"
  • A list of the parent company and affiliates of the company which owns the station (isn't this what Ownership Reports are for?)
  • For each programming stream, the average number of weekly programming hours devoted to the following:
    • High Definition programming
    • National news
    • Local news produced by the station
    • Local news produced by some other entity (who must be identified)
    • Programming devoted to "local civic affairs," defined as programming designed to provide the public with information about local issues, including statements or interviews with local officials, discussions of local issues, and coverage of local legislative meetings.  This programming must be subtracted from the "news" programming reported above.
    • Coverage of local electoral affairs - basically coverage of local elections - which must also be subtracted from the news coverage numbers reported above
    • Independently produced programming, i.e programming not produced by a national network (presumably each local station will have to determine if a network has as little as a one-third interest in all programming that is being aired)
    • "Other" local programming - which is not defined but presumably would include sports, religious, and entertainment programming produced within the station's service area
    • Public service announcements
    • Paid public service announcements (a PSA-type announcement for which the station or any group that the station is affiliated with - presumably including state broadcast associations - receives something of value)
    • Closed captioned programming
  • A list of each national news story that includes significant treatment of community issues, listing for each such program:
    • title, length and date and time of airing
    • whether it was aired on the primary channel of the station
    • whether it was locally produced
    • whether it previously aired on this station or any other station (how is a station supposed to figure out what other stations a national news program aired on?)
    • if it was part of a regularly scheduled news program
    • whether any consideration was received for the broadcast of the segment
  • A list of all local news program segments dealing with community issues, providing the same information for each such segment as listed above for national news segments
  • A list of all local civic affairs program segments that provides significant treatment of a community issue, with all the same details as listed above for news segments
  • A list of all electoral affairs programs that includes significant treatment of community issues, with the same details as provided for news segments
  • The title, length and date and time of the airing of all independently produced programming
  • A list of all local programming not otherwise listed above, with title, length,and date and time of airing, and whether the station received consideration for airing the program
  • For each PSA, the name of the sponsoring organization, the number of times the PSA ran, the length, and the percentage of times that were during prime time hours
  • For each paid PSA, the same information as for unpaid PSAs
  • Details of programming directed to "undeserved communities," defined as demographic segments of the community to which little or no programming is directed (query - if no programming is directed to a particular demographic segment, how can a station have anything to report in this category?)
  • Details of religious services or other local religious broadcasts aired at no change
  • A description of how the station determined that its programming met community needs
  • Details on the amount of closed captioned programming broadcast by the station, and a list of exempt programs that were aired, with details as to the exemptions
  • Whether the station voluntarily provided video description of any of its programs and, if so, how much
  • Information about broadcasts about community emergencies, including a statement as to whether or not the station complied with the rules that require such programs to be accessible to the disabled
  • Whether or not more than 3 hours per day of programming is provided pursuant to an LMA or JSA.

 As I was preparing this litany of information that the Form 355 will contain, I was trying to imagine how stations will comply with this requirement. As set out above, the form calls for an inventory of all program segments that deal with issues of public concern.  To fully comply with the rules, it would appear that a station will have to have staff members dedicated to monitoring all programming broadcast on the station - including on multicast streams and including all network and syndicated programming - to determine if the programming contains a significant discussion of important issues of public concern. Then, if any segment of any program does contain such a discussion, the station will have to write up the description of that program for inclusion on the Form 355, providing the duration, topic and time of broadcast of each such program. The Form 355 will not be a form that a station can simply fill out in the last few days of the quarter, but instead will require a minute-by-minute review of station operations, and a daily updating up information to be ready to upload it on the quarterly due date.

This would seem to be an incredibly burdensome requirement for any station. But, as with any new regulatory mandate, the burden falls hardest on small market stations. The costs and time to monitor station programming is essentially the same whether a station is in Glendive, Montana or New York City, as the amount of programming that a station broadcasts in either a big or a small market is essentially the same. Yet a New York City station has far greater resources from which to pay the costs of compliance with these rules. The small market station, in many cases already reeling under the costs of the digital transition, will be crushed by the new burden that these new rules entail. If ever the Paperwork Reduction Act should be brought to bear to reject a program for the regulatory burden it imposes, this should be the case. Lets hope that the Office of Management and Budget is more attuned to the burden that these rules create than was the FCC.
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