We do note, however, that where the missing lists are from but a few quarters, the FCC's fine is somewhat reduced, witness a recent $4000 fine for lists missing for just over a year - where the violations were from the beginning of the license term rather than being of recent vintage.  But if you are missing list from some longer period of time - seemingly about 2 years - that $10,000 fine seems to kick in.  Check you files now to make sure that you don't fall into the $10,000 trap.

For more information about the required contents of the Public File, see our advisory here.  For our last advisory on the Quarterly Issues Programs lists which stations should have placed in their public file on or before April 10, see our advisory here.   

Update - 4/24/12, 4:00 PM - Two more $10,000 fines for missing Quarterly Issues Programs lists were issued today, both for violations voluntarily revealed at license renewal time, reinforcing the "new normal."  See the FCC decisions here and here. 

In one case, an FCC inspection discovered an AM/FM combination operating with a tower with some of its required lights that did not work, an EAS system that wasn't working and which had not been working apparently for years, an FM station that was operating overpower, and a single public file for the two stations, one that was lacking any Quarterly Issues Programs lists.  With all of these violations over 2 stations, the FCC could have fined these stations as much as $42,000, but the FCC reduced the fine to $10,000 based on the licensee's demonstrated inability to pay the higher fine.  But more interesting for this analysis was the comparative cost of each of the violations.  Under the FCC's analysis, the public file violation was worth $10,000, while the base fine for the EAS violation was only $8000, and the fine for the tower lights was the same as that for the missing documents in the public file.  The overpower operation drew only a $4000 fine.  Why is a public file violation, which probably no one ever asked to see, a violation with a penalty as severe as those for matters that could affect public safety - tower lights and EAS?  And why is it more than double the fine for overpower operation, which could cause interference - an issue as the heart of the FCC's reason for being?  

Perhaps at some time the FCC will offer the public the opportunity to comment on the relative value of FCC fines, and perhaps do something to make the fine schedule more rational.  Broadcasters have, from time to time, argued that the public file rule was archaic and should be abolished, though the FCC now seems to be taking the opposite tack - looking to put the file online (see our summary of the FCC proceeding to do so here).  In any event, for the foreseeable future, the public file remains a big deal for the FCC, so be sure the yours is in good order.  For more information on doing that, see our most recent Advisory on the Quarterly Issues Programs Lists and our Advisory on the Basics of the Public Inspection File for Commercial Broadcasters. 

We just reminded broadcasters of the new FM window, where applications for 119 new FM channels can now be filed between now and the January 12 deadline.  Broadcasters also need to remember to complete their Quarterly Issues Programs lists, and place them in their public file, by January 10.  As we've written, there are big fines for stations who forget to complete these reports and have to report their absence at license renewal time.  See our advisory on the Quarterly Issues Programs Lists, here, and also our advisory on Children's Television obligations, including Form 398, that needs to be filed at the FCC by January 10, along with a public file report documenting compliance with the limitations on commercial advertising in children's programming . 

For more information on many of the routine regulatory deadlines for broadcasters, see our Broadcasters Calendar for 2012 here.

The new form documenting the public interest programming of TV stations is proposed to include information on the following types of programs, based on a "composite week" of data - the dates for which may be selected after the fact, potentially requiring the taping of programs so that broadcasters can reach back to get the required data:

• Local news
• Local Civic/Government Affairs ("interviews with or statements by elected or appointed officials and relevant policy experts on issues of importance to the community, government meetings, legislative sessions, conferences featuring elected officials, and substantive discussions of civic issues of interest to local communities or groups")
• Local Electoral Affairs
• Closed Captioning and Video Description (i.e. how much video description is being done by a station, and what exceptions to closed captioning are being claimed for programming broadcast on the station)
• Emergency accessibility complaints (complaints filed against a station for not making emergency programming accessible to those with disabilities)

For more concerns about some of the proposals, review our more detailed summary of the proposal, and file comments by January 17, or replies by January 30, in this important proceeding. 

First, the FCC asks a series of questions about how such a form should be structured, and how the information should be collected to be meaningful for those that want to analyze it, but not overly burdensome for the TV stations.   The Commission seems to conclude that the form is necessary - not even asking questions on that basic issue of whether to adopt a standardized form.  The NOI states:

We continue to believe that the use of a standardized disclosure form will facilitate access to information on how licensees are serving the public interest and will allow the public to play a more active role in helping a station meet its obligation to provide programming that addresses the community's needs and interests

The Commission then goes on to discuss the Quarterly Programs Issues lists  ("QPIs") that are currently required to be placed in a station's public file every three months - describing the issues that station management sees as important in the community and the programs that the station has broadcast to address those issues (see our most recent advisory on this obligation, here).  The Commission states that these quarterly reports should be replaced, as broadcasters have been uneven in their recordkeeping of such lists.  Of course, that may be because the FCC has never proscribed any specific form for these reports, nor specifically said what is acceptable and what is unacceptable in connection with such reports.  Seemingly, replacing one form with another (albeit a more complete, detailed new form) may well accomplish nothing if the new report does not have clear and unambiguous instructions - something never adopted for the Quarterly Reports.

• Local news
• Local Civic/Government Affairs ("interviews with or statements by elected or appointed officials and relevant policy experts on issues of importance to the community, government meetings, legislative sessions, conferences featuring elected officials, and substantive discussions of civic issues of interest to local communities or groups")
• Local Electoral Affairs
• Closed Captioning and Video Description (i.e. how much video description is being done by a station, and what exceptions to closed captioning are being claimed for programming broadcast on the station)
• Emergency accessibility complaints (complaints filed against a station for not making emergency programming accessible to those with disabilities)

The proposal is to collect this information on the basis of a "composite week" for perhaps two weeks each quarter, as certain public interest groups requesting this information contend that at least two weeks worth of information each quarter is needed to have a statistically valid sample.  These groups also suggest that the days that are included in the composite weeks not be announced until after the day has already passed - meaning that stations would either have to monitor and record this type of programming daily, or record all of its programming so that it could go back after-the-fact to compute the amount of time devoted to these types of programs.  So the adoption of this requirement may in practice require that all broadcast programming be recorded by stations - effectively imposing for an entirely different reason a rule mandating that stations record their programming that was proposed in 2004 during the height of the indecency battles and never adopted.

For each program fitting into the categories specified, the FCC asks whether it can require that broadcasters report on a per segment (as opposed to a per program) basis, i.e. reporting only on those segments of a program that address one of the topics specified above.  The public interest groups suggested that the following information be kept for each program (or each segment) and reported on the form:

• Program/segment title or topic
• Date and time aired
• Whether it was aired on a primary channel or a multicast channel
• Was it first-run programming or had it been aired previously on another channel
• Approximate length
• Was there a sponsor for the program that needs to be disclosed pursuant to the sponsorship identification rules (seemingly asking if it was some sort of Video News Release or other paid segment)
• Was the program aired as part of a shared services, local marketing or news sharing agreement with another station or newspaper in the market

The Commission also proposes that each program fit in only one category.  In other words, an electoral program should not also be counted as a local news segment, and so on.  How these distinctions could be made is unclear.  One would think that most local news would either deal with local electoral or civic and governmental affairs in some way or another.  How to decide where to include programs that fit in more than one category is unclear.

But the biggest question about this form, as it was for the Form 355 (see our analysis here) is "why"?  Why collect this information at all?  The FCC takes great pains to say that it is not establishing any quantitative requirements for a particular amount of programming in any of these categories.  Instead, this is merely an attempt to make this information available to the local residents and others who may desire to study it .  But what would these groups do with this information?  The FCC suggests that they could engage with the stations to be able to help the stations better shape their programming to community needs.  Without such information, we have already seen many cases where citizen's groups have complained to the FCC, particularly at license renewal time, that a station was not programming so as to address issues of importance to some group of local citizens in some way or another.  In those cases, the FCC denied the petitions, saying that broadcasters were free to choose how to serve the public interest, and that there were no specific requirements for particular amounts of programming in these various categories.  If that remains the case, as the FCC suggests in the NOI, why mandate that the many man hours necessary to collect this information be spent, when there is no regulatory purpose for that information?  The FCC asks for a cost benefit analysis, and one would think that there is no regulatory purpose for the information that is collected will be part of any such analysis.

The FCC seems almost as if it is doing the work of collecting information for various groups, so that these groups can challenge the service provided by broadcasters.  In fact, the FCC suggests that, in addition to the categories of information requested, stations be allowed to volunteer additional information about ways in which they are serving the public.  Again, if this form is not to be used for some sort of enforcement purpose, what purpose would the volunteered information serve?  It is almost as if the FCC, and these citizens groups, are operating from a presumption that broadcasters are not serving the public unless they can fill this form up with good stuff - when most viewers of television programming can judge the service of TV stations in the way that they always have - by changing the channel (or, these days, changing the viewing screen to cable or online services) if information that they want is not available on a particular channel.

What is perhaps most confounding is that this detailed information collection is being required of what is perhaps the most transparent industry in the country, in terms of the ability of citizens to judge its output and to collect the information that the government is proposing to mandate that broadcasters provide.  This is not a manufacturing plant, where the output of a factory can only be computed by someone in the factory itself, counting the number of products as they come off the assembly line.  Nor is it like some potentially harmful substance that may be emitted from a smokestack or in waste water, where access to the output might be restricted, and information can only be gleaned with specialized scientific equipment.  In the case of television, all of the information that the FCC asks the broadcaster to collect (and much more) could be collected by any citizen at any time that they want - if they are willing to sit in front of the TV set (or a DVR) and watch the output of the TV station.  It is there for all the world to see and to document, if anyone so desires.  Why does the FCC need to put this burden on the broadcaster?  That is a question that will no doubt be argued in the comments on this NOI. 

The Comment deadline has not yet been set, but will be 30 days after the publication of this order in the Federal Register.  The Commission notes that, at this time, it is not proposing to extend these rules to radio, but that "we believe that we should eventually require radio licensees to replace their issues/programs lists with a standardized from as well."  So this proceeding is crucial for all broadcasters to follow closely and to provide the FCC with the information that it needs to make a rational decision as to the degree to which broadcasters will need to document how they serve the public interest. 

Secondly, full power and Class A low power television stations are reminded that Children's Television Programming Reports on FCC Form 398 must be prepared and filed electronically with the FCC by October 10, 2011.  While technically, the deadline for filing the Form 398 with the FCC will roll to Tuesday, October 11th (because Monday is a Federal holiday, Columbus Day), given that the Reports must also be placed in the station's public inspection file within ten days after the end of the quarter, it would be best for stations to simply prepare and file their programming reports by October 10th to ensure they are timely. Our recent advisory is available here with all the details on the Children's Television Programming Reports.  By Oct. 10th, commercial stations should also prepare and place in their public inspection file the necessary quarterly certifications regarding compliance with the commercial limitations in Children's Programming. 

The largest fine, $12,000, went to a commercial station that, when inspected by FCC Field Inspectors in March 2010, could not produce anything in its public file more recent than 2006.  While the licensee claimed that the documents were kept at the office of the station owner several hundred miles away, the FCC found that the violation of having nothing from more than 3 years of operation was so egregious that an upward adjustment from the standard $10,000 public file fine was warranted.  The two fines issued to noncommercial stations were not as egregious, but still resulted in significant fines.  A review of the details of those cases are instructive as to the excuses and mitigating circumstance that the FCC rejected when the licensees tried to argue for a significant reduction or elimination of the fine.  

The University also argued that the station could not afford the fine, as the University only budgeted a set amount (at most $15,904 per year) to the station.  The fine would eat up that budget, and payment of the fine from other University funds would reduce non-radio services and activities.  The FCC also rejected that argument - finding that it did not show that the licensee could not pay the fine.  As in prior cases, the FCC looks to the entire licensee, not just its budget for radio, to determine if a fine can be paid.

Finally, the Licensee suggested that the fine violated the Small Business Regulatory Enforcement Fairness Act of 1996, as the same fine would apply to this small college station as would apply to a large commercial television station guilty of the same violation.  Again, the FCC rejected the argument - finding that the FCC considered the SBREFA when it adopted its fine schedule and, because the FCC provides for reductions in cases where a small entity can't afford to pay, there is no violation of this Act.  The only reduction was based on the licensee's past record of compliance, resulting is a reduction of $2000 from $10,000 to $8,000.

The other noncommercial case involved a religious broadcaster, who also admitted in its renewal application that it did not have all of its quarterly issues programs lists in its files, for 11 of 17 quarters since the station came on the air.  It also did not timely file one required Ownership Report.  Here, too the licensee claimed financial hardship but the FCC found that the fine would constitute only 3.6% of annual revenue, so it was not excessive (citing cases that say that a fine of as much as 5% of revenue are reasonable). 

While many broadcasters question the value of the public file, as it is seldom if ever visited by the public, compliance with this rule is obviously a high priority of the FCC.  Public inspection file fines are quite expensive and, with license renewal coming up, it's important for all stations to be able to certify that the file is complete.   Our advisory on the required contents of the commercial public inspection file is here.  Our latest advisory on the requirements for the quarterly issues programs lists is here. Check your station's compliance today. 

The FCC also refused to make any adjustment in the amount of the fine, given that the licensee had admitted public file deficiencies in its last license renewal application.  Given a previous history of noncompliance, the FCC was not willing to adjust the fine.  With the upcoming license renewal cycle, licensees who have previous problems with FCC compliance should be particularly attuned to this admonition - as the FCC seems unwilling to show any leniency to repeat offenders (see our summary of another recent case where the FCC actually adjusted a fine upwards from the amount suggested in the FCC's schedule of base fines, based on a 13 year old violation for a similar offense). 

In the last renewal cycle, the biggest source of problems dealt with public file issues.  Remember, stations need to certify in their renewal applications that their public file is complete and accurate and, if it is not, to specify areas where there are deficiencies.  In the last cycle, many stations in particular had issues with Quarterly Programs Issues Lists that were missing from the files, in many cases incurring fines of $10,000 or more where there were many such reports missing from the files.  These reports are also very important, as they are the only required official records to demonstrate the programming that a station broadcast to serve the public interest needs of its service area.  If that service is ever challenged, you will need the reports to demonstrate how your station's programming met the needs and interests of your city of license and the surrounding area.  Check out our last advisory on the Quarterly Programs Issues Lists, here.

Recent FCC Form 323 ownership reports should also be in the public file.  Our reminder on the ownership reports that all commercial stations should have filed at the beginning of July can be found here.  Noncommercial stations need to remain alert to their mandatory biennial reports, which are due every two years, computed from the date on which your state's license renewal application should have been filed.

There are other issues that come up in connection with the broadcast public inspection file.  For our Davis Wright Tremaine advisory on the Basics of the Public Inspection file for Commercial Broadcasters, setting out all of the documents that are required for inclusion in the public file, you can go here.

Now is the time for stations to review other compliance issues.  RF radiation issues are considered at renewal time so, especially if there have been changes at your transmitter site since the last renewal, check to be sure that you are in compliance with all limits there.

Check your licenses to make sure that all of your operating facilities are authorized.  Make sure that stations have licenses for all STLs, remote pick-ups and other auxiliary facilities, and that (especially if there has been a recent sale of your station) all such licenses are now listed in the current licensee's name.  Make sure that the FCC has the correct mailing address for your station on file, so that any notices go to the correct place.

Also remember that, for the first time this year, the license renewal application is supposed to have a certification that stations are not discriminating in the sale of advertising time. We have written about this requirement before (see our posts here and here).  This requirement is one on which the FCC has never provided much guidance.  The Commission has said that station advertising contracts should have certifications that state that advertisers are not making their buying decisions for discriminatory purposes, an example of such a certification we provided here.  But consult with your attorneys to make sure that you are ready for this new license renewal question.

This is a good time for stations to make sure that their operations are in good order in all respects.  Correct issues that might exist, so that you don't need to scramble to do so when the license renewal is due.  And make sure that your stations are serving their communities, and doing their best to address any criticisms that may be coming their way from their listeners.  At renewal time, you want friends who will verify how well your station serves your community, not enemies who may be ready to complain to the FCC about your performance.  Stations should obviously be doing this at all times but, with the renewal season soon to be upon us, be sure that these efforts are not put in the "to do" pile, but are instead action items for immediate attention.   Your license renewal application will be due sooner than you think, no matter whether your station is in Virginia and filing next year, or in Pennsylvania where that four year delay can pass very quickly.  Be ready. 

The fines also once again demonstrate that the Commission no longer treats noncommercial broadcasters differently than commercial broadcasters - fining noncommercial stations for violations just as it does their commercial brethren (see a previous post on this subject, here).  In these cases, the use of Consent Decrees also demonstrate the problems that issues arising at renewal time can cause.  If a station's license renewal reports a problem, such as an incomplete public file, the application is pulled out of the routine processing pile for further scrutiny.  Such scrutiny can often take a year, and sometimes several years, to resolve.  While the renewal application is in this state of limbo, a sale of the station will not be approved, and sometimes other regulatory actions can be held up (in fact, in one of these cases, a transfer of control of the licensee company was delayed while this issue was being resolved).  Thus, to avoid these lengthy delays, stations often decide to pursue the consent decree route to try to resolve the issue more quickly than would be the case if the application were just left with the FCC to run its course.

And don't even think of not reporting in your license renewal application those violations in your public file that you may discover, as the failure to report a violation can cause its own problems  - turning a mere rule violation into a misrepresentation issue (see our post here)

Obviously, each of these steps can have costs attached to them.  So make sure that you don't have these problems to begin with - review your operations now to make sure that there are no significant problems to report when your renewal application is filed.

The main studio rule violation was a case that, while seemingly obvious, also should remind broadcasters of their obligations under the requirement that a station have a manned main studio.  In this case, when the FCC inspectors arrived at the station's main studio, they found it locked and abandoned.  Once they were able to locate a station representative to let them into the studio, they found that there was some equipment in the facility, but it was not hooked up, nor was there any telephone or data line that would permit the station to be controlled from the site.  The Commission's main studio rules require that there be at least two station employees for whom the studio is their principal place of business (I like to think of it as the place where these employees have their desks with the pictures of their kids or their dog, as the case may be, and where they show up in the morning to drink their morning cup of coffee before heading out to do sales, news or whatever their job may be).  At least one of the two employees who report to the studio as their principal place of business must be a management level employee, and at least one of those employees must be present during all normal business hours.  Thus, the studio should never be devoid of human life.  The studio must be able to originate programming, and the station must be able to be controlled from that location so that the employees there could originate programming in the event of a local emergency.  In light of these violations and others, the station in this case was fined $8000.

Another issue turned up by these inspections was with the FCC public file.  In the same case where the EAS issues were discovered, the FCC inspectors discovered that there were missing Quarterly Programs Issues lists in the station's public file.  We've written before about how the failure to have these lists in a public file can lead to fines at license renewal time (probably the most frequent source of license renewal fines), but it can also lead to a fine if the FCC inspector comes knocking.  Our Davis Wright Tremaine Advisory on the Quarterly Programs Issues List (the most recent edition is here, though a new one for October reports should be out very soon), talks about how important these lists are, and provides information on how to complete them.  Check it out, and make sure that your station is in compliance.

Given the variety of issues that can arise during an FCC inspection, and the potential for fines in connection with any violation, stations should review their operations now to avoid issues later. 

A copy of Dave's PowerPoint presentation used for the 18 minute session can be found here. 

The new FCC form will replace the Quarterly Issues Programs lists prepared by licensees since the mid-1980s.  The Quarterly Issues lists were originally adopted to replace more detailed reporting requirements which forced broadcasters to collect and file the same types of information that the FCC is now requesting.  While the new forms are not yet released, from the discussion at the FCC meeting, it appears that they will require the following information:

• Details about civic and election coverage provided by the station
• Information about programming from independent producers that is aired by the station
• Information about the number of Public Service announcements (PSAs) aired by the station
• A description of efforts that the station has undertaken to serve its community
• Specifics about emergency information provided by the station
• Information about how emergency and other information is provided to viewers with disabilities
• There was also some discussion that indicated that the reports would require information about how stations ascertain the needs of their community that are addressed in their programs.

Commissioner McDowell also expressed concerns about how stations - especially smaller ones - would meet the requirement that they have their public files online in 60 days.  While there was some discussion about the potential for waivers by smaller stations which maintain a bare-bones website or are otherwise financially distressed, one wonders if the Commission fully understands what needs to be in a public file, and the potential issues that can arise from putting it all on-line.  Not only will there be these new quarterly filings that will need to be put online (or linked to, as apparently the Commission will allow a station to link to documents that are already online), but there will also need to be links to children's programming reports, EEO annual reports, and Ownership filings on FCC Form 323.  Stations will also need to put on their websites Network Affiliation Agreements, LMAs or JSAs, documents relating to their ownership (including options, pledges and other financial documents that set limitations on the operation of the station) and various other sometimes voluminous documents.  From what was said at the meeting, about the only documents that will not need to be put on the website will be political file contents and letters from the public that are sent by "snail mail" (though email letters from the public will need to be maintained online).  I would fear that these obligations will be the kind of "gotcha" rules that will lead to fines at license renewal time, just as the failure to keep a complete public file, to complete Quarterly Issues Programs lists, or to observe all the obligations of the children's television rules led to so many fines during the recent renewal cycle. 

This summary is based on the Commission's brief Public Notice about the actions, and the statements made at the FCC meeting.  When the full text of the Commission's order is released, we will know more about the details of these requirements.  Stay tuned, and start thinking about increasing the electronic storage capacity of your station website.