The FCC today adopted a Report on its Localism proceeding, accessing the evidence that it gathered in its three year long investigation of whether broadcasters were adequately serving the interests of their local communities.  We wrote long ago about some of the specific issues that the FCC was reviewing in this proceeding – everything from the public interest programming of broadcasters to their music selection process to their response to local emergencies.  Among the report’s conclusions were findings that not all broadcasters were adequately assessing the needs of their communities or serving the public interest through coverage of local news and other local events.  Because of these perceived weaknesses in broadcaster performance, the FCC adopted a Notice of Proposed Rulemaking, much as we expected in our post here, tentatively concluding that re-regulation of the broadcast industry was necessary, bringing back some form of ascertainment and some specific quantifiable requirements for public interest programming. 

As in the case of the Multiple Ownership order adopted today (summarized here), the full text of the FCC Report and the Notice of Proposed Rulemaking has not been released.  Instead, only a short Public Notice, and the statements of the Commissioners at the meeting, are available to determine what was done.  From these notices, it appears that three tentative conclusions were reached.  They are, as follows:

  • More Low Power TV stations should be able to get Class A status, meaning that they are no longer a secondary service that can be "bumped" by a new full power television station or by changes to the facilities of a full-power station
  • Each licensee should be required to establish a community advisory board made up of specific groups of community leaders, with whom the station would meet on a regular basis to assess the needs of the community
  • The FCC’s license renewal standards should contain specific quantitative requirements for public service programming

While these may sound like noble decisions, there are many details and much history that the Commission needs to address before these proposals become final FCC rules.

The proposal for the establishment of a community advisory board would mark a return to the "ascertainment" process – a process that resulted in much litigation in the 1970s and early 1980s before it was done away with in 1984.  That process required that each broadcast licensee meet with specific, identifiable groups of community leaders every six months to assess the needs of the community so that those needs could be addressed in public service programs.  When the process was abolished in 1984, the Commission noted that it had produced much litigation over whether the mandatory details of the process were observed by licensees, but it never resulted in any significant sanction for a broadcaster.  It is curious that now, 24 years later, the FCC seems to think that the same type of process will produce a different result.

Similarly, the quantitative public interest requirements that mandated specific amounts of news and public affairs programs to avoid special scrutiny of a license renewal application, were also done away with in 1984.  These rules were abolished in the belief that marketplace competition would insure that each station served the community in its own way to avoid becoming irrelevant and being replaced by a marketplace competitor.  Now, the FCC is thinking of reimposing requirements on broadcasters, though it is thus far unclear what those requirements would be.  There was some discussion at the FCC meeting that the requirements would include a mandatory amount of local programming, though whether that would be further broken down to require specific amounts of news and public affairs programming seemed to be open to comment.

 At the meeting and at the Press Conference following the meeting, there was also discussion of other issues that would be addressed in the Notice of Proposed Rulemaking.  These apparently include some requirement for broadcasters to report on their music selection process.  Though not outlawing national playlists (if such things exist), the FCC seemed intent on seeing how radio broadcasters select the music that they play, and on possibly mandating that some local music be played on each radio station.  Issues of payola may also be considered in the Notice.  The FCC was also concerned about the responsiveness of broadcasters to local emergencies.  To address that perceived concern, the FCC seems to be proposing to require main studios in the station’s community of license and to require that these studios be manned whenever a station is in operation.  A decade ago, when the rules required manned main studios during all hours of operations were abolished, many stations started round-the-clock operations, freed from the cost of having to man the studio during the "graveyard shift" during overnight hours.  Would new rules bringing back the requirements that stations be manned during all hours actually result in less programming being aired?  That may be one issue that the FCC is forced to address as this proceeding continues.

This proceeding will seemingly hit hardest at smaller, local stations. While some broadcast critics seem to think that these proposals can easily be addressed by broadcasters, often their focus is on big market, big media stations.  Small "Mom and Pop" stations are often ignored in the calculus used to weigh such regulatory proposals.  Often Mom and Pop barely have the staff to keep the station in operation, much less to deal with paperwork and processes that don’t contribute to meeting payroll or the over-the-air product.  Hopefully, once the Commission provides the specifics of its proposals and the deadlines for comment on these proceedings, stations of all kinds will make clear to the Commission the impact that these proposals will have on their operations.