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In recent years, the FCC has issued blanket waivers to allow noncommercial stations to raise funds for relief groups bringing aid to areas where mass disasters have hit (see our articles on waivers granted for  for Haitian earthquake relief, here, and  for Japan earthquake and tsunami relief, here).  It may be that the NPRM will address these types of situations.  But, as controversies have arisen in other situations where noncommercial broadcasters enter into business relationships to preserve and expand their service (see our articlehere on some of the issues raised by the FCC in a case involving the sale of a noncommercial licensee and the objections to a pre-sale operating agreement or LMA), this proceeding may well address these more extensive issues.

The TV channel sharing item grow out of the FCC's proposals that hope to recapture some more of the television spectrum to repurpose it for wireless broadband.  Congress recently passed legislation (which we summarized here) to allow incentive auctions to try to entice certain TV broadcasters to give back their spectrum for re-auction by the FCC.  Given that digital television technology allows for one television channel to now transmit several programming streams, the FCC had suggested that one option for broadcasters was for two TV stations to get together, agree to turn one channel back in to the FCC for wireless use while putting both of their programming onto different streams on the second station, splitting auction proceeds,and perhaps even retaining must-carry rights for both streams. See our summary of the FCC's proposals for channel sharing, issued just over a year ago.

Such a channel-sharing program will be but a first step in the long process of clearing some spectrum for wireless broadband. Even if the FCC adopts rules for channel sharing, it must still adopt rules for the spectrum auctions (both the incentive auctions by which TV stations offer to give up their spectrum in exchange for payment) and for the actual bidding on the cleared spectrum by wireless users.  In addition, the FCC will likely want to repack the TV band, moving stations that don't elect to give up their channels to a smaller part of the TV band, to clear the same TV channels so as to provide a consistent spectrum band across the country for wireless use.  That plan, akin to the channel changes that took place when DTV was implemented, is no doubt a much longer, more complex process.  So this is but the first small step toward the FCC trying to implement their plans for wireless broadband operations on what are now TV channels. 

In any event, this may be a very important meeting for broadcasters.  This NPRM on the new public file requirements is also connected to the FCC's proposal to create a disclosure form for public interest programming, which may be addressed next.  Together, these issues may make April a very busy and important month for broadcasters.   

[Corrected 4/9/12, 4 PM to reflect that the FCC meeting will discuss the online public file, not the form for reporting on the public service of broadcasters, as originally indicated] 

The philosophical issue of whether or not regulation was necessary, and whether regulation can be accomplished in a manner that avoids constitutional issues, was a focus of much back and forth.  All panelists seem to concede that it was problematic for government to regulate content directly.  Several of the panelists suggested that the structural rules embodied in the multiple ownership restrictions were necessary to accomplish the ends that could not be directly mandated consistent with the First Amendment, like encouraging more local programming and more coverage of local issues.  Ken Ferree, the former head of the Media Bureau and now affiliated with the Progress and Freedom Foundation, asked some of the more regulatory-minded panelist how, if the purpose of this structural regulation was to accomplish goals that could not be directly mandated, could the indirect regulation be justified when done for a purpose that admittedly was prohibited.  That question did not seem to have a direct answer.

The Media Bureau representatives who were conducting the panel asked whether regulation should take into account the current economic conditions of broadcasting.  The more regulatory public interest members suggested that the current economic problems of broadcasters were not an intrinsic problem with the industry.  Instead, these representatives suggested that broadcasting, on a cash flow basis, was still a successful business, and that the current problems of broadcasters were due to their high debt loads.  Based on this belief, the representatives of several of the groups felt that, because broadcast owners had put themselves in the situation that they are in, the Commission should not concern themselves with their current economic plight when making regulatory decisions.  One panelist went so far as to say that, if broadcasters don't like the regulations that may be adopted, they don't have to operate under them - they can sell their stations or turn in their licenses.

While there is no doubt some truth to the contention that high debt burdens have caused some broadcasters current economic issues, it seems that these public interest representatives far understate the structural issues facing broadcasters.  We have written about the licenses for television stations which have been surrendered because there is no one who was willing to face the costs of the digital conversion, and of AM stations that simply can no longer make a go of their operations.  These are not imagined problems, or problems caused by debt burdens, but instead real economic issues that have caused stations to go dark and licenses to be surrendered due to changes in the media marketplace.

Several of the panelists suggested that the decisions made by the Commission be data driven - based on research and factual data.  However, many complained that sufficient data was no available to make the necessary determinations.  Suggestions on data accumulation included the Commission's rapid implementation of the Form 355 for television (which it has already been approved but not yet implemented) and for radio (where it was proposed as part of the localism proceeding).  There was other discussion about bringing back FCC Form 324, which required the reporting of annual financial information about the costs and revenues of broadcasters until the form was abolished in the early 1980s.  When asked about the paperwork burden of requiring this information, the suggestion was made that this was simply a cost of doing business in a regulated industry, and broadcasters needed to provide the information for the FCC to make good decisions.   Clearly, these individuals have never run a small market radio station, where such burdens can be crushing. 

These proposals don't reflect anything more than the views of the parties who were represented.  But, as referenced above, these are parties active in Washington and accustomed to dealing with the FCC.  They will be filing comments in the Quadrennial Review and lobbying the Commission on these matters.  And, from the fact that they were included on the panels, they have at least some attention of those within the FCC.  So broadcasters must note their concerns, and be prepared to respond to these issues when they are formally presented to the Commission. 

The pending proceeding to set more detailed public interest standards for TV broadcasters has origins very similar to the one now pending for radio, growing out of the FCC proceeding on digital television and the permission given to TV broadcasters to operate multiple digital programming streams.  In adopting those proposals, the FCC decided that it had to consider what public interest standards should apply to these multiple streams, and asked for public comment on those standards, and whether they should apply to analog programming as well.  The text of the Commission's proposal,  which can be found here, raises a number of issues including the following:

• Whether to adopt a single standardized form on which broadcasters would report on their programming responsive to the public interest
• What kind of information should be required on this form, tentatively concluding that reporting should be required on the percentages of specific types of programming (e.g. news and public affairs) provided by stations and on the amount of closed captioned and video description programming. The notice also asked what other information might be helpful in defining the service provided by stations (e.g. information about the specific efforts to address local political issues)
• Should broadcasters be required to report on their efforts to identify the issues of importance to their community?
• Whether broadcasters should be obligated to report on activities (e.g. fundraisers) that they undertake for the betterment of the community in addition to their over-the-air programming
• Whether the broadcaster's public inspection file should be maintained on station websites

Many of these proposals echo those recently made by Commissioner Copps in his Op-Ed piece in the New York Times, which we commented on here.  Bringing back specific quantification of the types of programming offered by broadcasters and reporting on how they determine what the public is concerned about would bring broadcasters back to the state of the FCC rules as they existed until the middle of the 1980s.  Then, the Commission concluded that these rules were unnecessary, as the marketplace would insure that broadcasters kept their community in mind in making programming decisions.  Now, 20 years later, when marketplace competition has markedly increased, do broadcasters really need to be told how to serve their communities?  We'll see if the Commission thinks that they do when it finally resolves this proceeding.