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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!

What Stations are Subject to the New Rules?

All television stations, both commercial and noncommercial, must comply with the new rules. This includes Class A TV stations, but not Low Power TV or TV translator stations.

Radio is not subject to the rules – yet. The FCC has said that they plan to expand the rules to radio at some point in the future, but want the experience dealing with TV stations first.

Where Do You Go To Get Access to the Online File?

Station access is available at https://stationaccess.fcc.gov/. The public gains access to the various station files by going here: https://stations.fcc.gov/

What Documents Will the FCC Post on the Online File?

All documents that are electronically submitted to the FCC, and which must be placed in the public file under current rules, will be automatically posted by the FCC onto a station’s Online Public File. This will include documents such as the station’s Biennial Ownership Report, Children’s Television Quarterly Reports, License Renewal Applications, and Construction Permit Applications. The FCC will also post a copy of the FCC license for the station, and a copy of the Public and Broadcasting, A Procedure Manual, the FCC publication that all stations need to keep in their files.

What Documents Must the Station Upload?

Other documents currently required to be in the Public File will have to be posted by the station. This will include, most prominently Quarterly Issues Programs Lists and Annual Equal Employment Opportunity Program reports. Other documents that must be uploaded include: Time Brokerage and Joint Sales Agreements; quarterly certifications on meeting commercial limits for children’s television programming; must carry/retransmission consent elections; and contracts and other documents that must be filed with the FCC (e.g. network affiliation agreements, articles of incorporation or by-laws, agreements like options or rights of first refusal that relate to future ownership of a station, and other contracts that limit the operational decisions of broadcast stations). But the most voluminous requirement, particularly in an election year, will be to upload political broadcasting material (starting with Large stations, as described below).

Is There Other Information that A Station Needs to Provide for its Online Public File?

In addition to the documents referenced above, a station needs to provide in the Online Public File the location of its main studio and the telephone number for the station. The Online Public File will also need to contain the email address of a contact person at the station who can answer questions about the public file.

What Should Have Happened on the August 2 Effective Date?

On August 2, all stations must start to place all new public file material into their online public files instead of in their physical files (except as noted below). For “Large” stations (Big 4 Network Affiliates in the Top 50 markets), this includes all political file materials. For smaller stations – those outside the Top 50 markets and those which are not affiliates of the Big 4 networks – no political file material needs to be placed in the file until July 1, 2014.

What Does the Effective Date Mean as a Practical Matter?

Obviously, for Large stations, the impact is immediate – in connection with the need to upload political materials. For other stations, the impact is less immediate. Unless, soon after the Effective Date, a station has a complaint filed against it, correspondence with the FCC that needs to be included in the public file, or a new contract or agreement that would need to be filed with the FCC, the first real need to upload documents will be in early October. Quarterly Issues Programs lists need to be uploaded for all stations by October 10, and Annual EEO Public File reports need to be uploaded in states that have an October 1 anniversary date for their required license renewal filing.

When Do Documents that Were Created Before the Effective Date

Need to Be Uploaded to the Online Public File?

All stations need to upload past public file documents (except past political file documents and letters/e-mails from the public) onto their online public file within 6 months of the effective date – or by February 2, 2013. This would include past Quarterly Issues Programs Lists (back to the beginning of the current renewal period) and past Annual EEO Public Inspection File Reports, also to be maintained for the entire license period and up through the FCC’s grant of the station’s next renewal application.

The only exception is for political file documents created before the Effective Date. These documents do not need to be uploaded into the online file. As such documents need only be retained for two years, many of these documents will quickly be irrelevant.

What is Included in the Political File?

In the FCC’s order adopting the obligation for the Online Public File, the FCC refers to the political file only by reference to Section 73.1943 of the rules. That section of the rules deals only with the required information about the sale of time to candidates themselves and the information that needs to be posted about such purchases.

Commonly, most stations talk about the “political file” more broadly, including information about third party purchases on Federal issues (including Federal elections), which is covered in Section 315 of the Communications Act and not in the Commission’s rules. Some also look to Section 73.1212, where there are public file disclosure obligations for non-Federal issues of public importance. The FCC has been back and forth on this issue, but is seemingly now taking the position that all of this kind of documentation about third-party purchases on political campaigns is part of the station’s “political file.” But this advice has changed several times, so stations need to consult with their own counsel about this ambiguity in the new rules.

After the Effective Date, What Paper Public File Records Must be Retained?

Letters and emails from the public written to stations about their operations must be kept in a paper file. The FCC decided that these letters and emails could infringe on individual privacy if posted online. Thus, these communications will not be uploaded to the Online Public File, but instead retained in a paper file at the station throughout the current license term and up through the next renewal.

Political files created before the Effective Date must be retained in the paper file for two years.

Do Stations Need to Keep Back-up Files?

For the most part, stations do not need to be able to recreate the public file documents uploaded to the new Online Public File, as the Commission's system has been designed to provide redundancy to minimize downtime.  However, because of the time sensitive nature of political file information, the station must have political information available for inspection in the event that there was to be some failure of the new system. These political back-up documents do not need to be maintained in a public file, but stations should keep them in some internal records in case they are needed. The FCC has indicated that stations will be able to “mirror” the station’s online public file onto a local station server each day, and in this way maintain a daily backup of the station’s political file. Stations should insure that they are taking steps to have this back-up documentation of the political file available in case it is needed.

Do Stations Need to Remove Documents from the Online File?

While the FCC will automatically upload FCC applications and other FCC filings to the Online Public file, the FCC will not automatically remove these FCC submissions from the online file once the required retention period has passed. Stations need to do maintenance of the online public file on their own, removing files that no longer need to be retained.

Do Stations Need to Publicize the Existence of the Online Public File?

A link to the station’s Online Public File must be placed on a station’s website. The station’s website also must list the name and contact information for a person at the station who can assist the disabled with accessing the online public file. While the FCC will be responsible for any technology on the site necessary for accessibility, the station must still be prepared to assist those that need help in accessing the site.

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The Online Public file will be reevaluated by the FCC in the coming years. That is, of course, if it survives the appeals currently being prosecuted against it. While the FCC and the Courts have not stayed the effective date of these new public file rules, the appeals at both levels continue. So start complying with the new rules – but watch the news to see what developments may occur in the near future. And look for updates on the other issues that certainly will arise once people begin to use the system.

Updated: 8/14/2012, 5:00 PM EDT to correct the answer to the Question on the Back-up files that stations need to maintain to reflect that only political files need to be available immediately in the event of a failure of the Commission's system. 

To facilitate the process, the FCC is holding online/teleconference seminars on Monday, July 30th and Tuesday, July 31st.  The Monday seminar will be held from 9-11 AM EDT while the Tuesday seminar will be held from 4-6 pm EDT.  Details of how to join the online seminars are available at the FCC website here.

Issues about the posting of the political file dominated the conversation.  Commissioner McDowell, the lone Republican Commissioner, suggested that the FCC missed an opportunity for compromise.  Broadcasters concerned about the burden of uploading hundred or thousands of documents in the days before an election, and about the specific disclosure of their lowest unit rates in an on-line database available to anyone, anywhere, offered a compromise proposal that would have had them creating a summary of the candidate's purchases on the station, but would not have given the actual rate information.  McDowell suggested that the FCC start with that level of disclosure, and examine in a further proceeding if specific information about lowest unit rates needed to be disclosed online. 

Commissioner Clyburn seemed to acknowledge the competitive concerns of broadcasters having to give out their lowest rate online, where everyone, everywhere, can see it.  From her days as a newspaper publisher, she stated that she knew how hard it was to negotiate with potential advertisers who were always looking for a better deal on rates.  But the Commissioner said that she thought that the public demand for information - whether it be from candidates, regulators, public interest groups, whistleblowers or just people "with too much time on their hands" - outweighed the burden put on broadcasters.  Commissioner Clyburn suggested that the review after the first year could determine if the publicity of the lowest rates really did cause problems.

FCC Chairman Genachowski was the least sympathetic to broadcaster's concerns, essentially saying that, as the information was already in the station's paper files, putting it online was just the modern way to do disclosure.  He dismissed any claims that it would present a burden to broadcasters - claiming that it will actually save broadcasters money in the long run (query why the broadcasters would be objecting so much if the proposal really would save them money).

In fact, the theme that online disclosure was the modern way of doing things, and that it would save broadcasters money, was repeated throughout the presentation.  The Media Bureau attorney who presented the FCC decision suggested that yearly compliance costs would be between $80 and $400 per station (a number that broadcasters I'm sure would find surprising).  This question may well become one that will be crucial to the effective date of the proposal as Commissioner McDowell suggested that a Paperwork Reduction Act analysis of the order might prove troublesome.

More details of the proposal will be available when the FCC releases the full text of its order.  We will update this summary when the text is out and we've had a chance to review it.