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Incomplete public inspection files were the largest source of fines during the last license renewal cycle.  We wrote last week about two noncommercial broadcasters whose renewal applications filed many years ago have just now led to consent decrees and voluntary contributions to the US treasury in lieu of fines.  To help commercial broadcasters avoid these issues, we have prepared a Guide to the Basics of Public Inspection File Obligations for Commercial Radio and Television Broadcasters, discussing the rules that need to be followed with respect to the availability of the file to the public, its required contents, and the time period for the retention of documents kept in the file.  The Guide also has links to some of our other advisories that deal in more detail with the obligations to keep specific types of documents in the file - including political broadcasting documents, quarterly issues programs lists, EEO reports and children's television reports.  Read the guide, available here, review your operations and be prepared for the next renewal cycle.

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On February, 18, 2010, David Oxenford conducted a seminar for the Utah Broadcasters Association on legal issues that affect radio and television broadcasters.  First, David summarized the various broadcasting legal and policy issues pending before the FCC and Congress.  David's PowerPoint presentation is available here.  Broadcasters interested in Washington issues that may affect them this year may also want to read our blog post from early January where we presented our legal predictions for 2010.

David then conducted a refresher course on political broadcasting issues that may arise in this election year.  His PowerPoint on political issues for broadcasters can be viewed here.  Broadcasters wanting more information on the FCC's political broadcasting rules and policies should review the Davis Wright Tremaine Political Broadcasting Guide.  A discussion of the issues for broadcasters raised by the recent Citizen's United case is available here.

Finally, David discussed recent developments in enforcement of the FCC's EEO policies.  The PowerPoint used in this session can be seen here .  Our Advisory on EEO rules and policies is available here, with forms and recordkeeping suggestions attached to that memo.  Our most recent EEO Public Inspection File Report advisory, with a model report attached, is available here.  Finally, our description of one of the recent FCC fines for noncompliance with the EEO policies is available here. 

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In two just released cases, the FCC fined television stations $8000 each for failing to publicize the location of their Children's Television Programming Reports for an entire license renewal period (the cases can be found here and here).  The FCC found that any remedial steps taken by the licensees after they discovered their failures at renewal time did not excuse the failure to comply during the license term.  The Commission, in the orders, cites a survey that found "virtually all of the stations in the sample complied with the requirement to publicize the existence and location of the stations' Children's Television Programming Reports", thus dismissing arguments that the rules were vague and unclear as they do not spell out how much publicity must be given to the location of these reports.  Based on these decisions, it's obvious that not all stations in fact got the message.

These cases remind all television broadcasters that they do in fact have obligations to publicize the location of their children's television reports and the contact person at their stations for information and comments about programming directed to children.  For more information on a television station's Children's Television obligations (or, as many broadcasters know them, the Kid-vid rules) under the Communications Act and the FCC rules, including the periodic notice that should be given by television stations, check out the Davis Wright Tremaine Quarterly Reminder, the most recent of which can be found here. 

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Reading the trade press and the blogs, one would think that the Tim Tebow ad that will reportedly air during the Super Bowl presented novel, controversial legal issues.  In fact, while we haven't seen the ad, from what we've read, there do not seem to be significant legal issues - most particularly ones that arise from an FCC perspective.  The word is that this ad is pro-life, telling his mother's story of why she decided to have her child after a medical recommendation that she not, and how that child grew up to be a famous quarterback.  Where are the FCC legal issues?  Even were this ad to explicitly address a "controversial issue of public importance", like the abortion debate, and even were stations running the ad not willing to take ads from pro-choice groups (and there is no indication that this sort of rejection of opposing viewpoints has occurred), as the debates earlier this year on the airwaves and over cable channels made clear, there is no longer any Fairness Doctrine enforced by the FCC.  Thus, there is no FCC requirement for stations having to give equal time to competing sides of any particular issue (even when the Fairness Doctrine existed, there was never an obligation for strict equal time - a broadcast station just needed to, in some manner, present both sides of an  issue).

At most, were the ad to advocate some specific Federal action, there might trigger an FCC obligation for stations that carry the ad to place a note in their public file about the ad and the amount paid to run it (see our post here), but otherwise the issue seems to be a tempest in a teapot.  Since the abolition of the Fairness Doctrine, broadcasters have been assumed to be able to exercise their own editorial discretion to decide what serves their audience and what doesn't.  In the vast majority of cases, no one bats an eye.  But combine celebrity, the Super Bowl and a reference to a political hot-button issue, and you have a media controversy - even though there is no legal one.  So, unless the ad has some content that no one seems to be contemplating, the folks at the FCC should be able to relax and simply watch the game (assuming no clothing malfunctions or similar unexpected events - which we will leave to another post on another day...)

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