The FCC has released the full text of its Order adopting enhanced disclosure requirements for broadcast television stations – requiring that they post their public files on their websites and that they quarterly file a new form, FCC Form 355, detailing their programming in minute detail, breaking it down by specific program categories, and certifying that the station has complied with a number of FCC programming rules. The Commission also released the new form itself and, as detailed below, the form will require a significant effort for broadcasters to document their programming efforts – probably requiring dedicated employees just to gather the necessary information. The degree of detail required is more substantial than that ever required of broadcasters – far more detailed than the information broadcasters were required to gather prior to the deregulation of the 1980s – though, for the time being, much (though not all) of the information is not tied to any specific programming obligations set by the FCC.
Before getting to the specifics of the new requirements, the thoughts of the Commission in adopting this order should be considered. The Commission’s decision focuses on its desire to increase the amount of citizen participation in the operation of television stations and the decisions that they make on programming matters. While many broadcasters protested that the public rarely cared about the details of their operations, as evidenced by the fact that their public files were rarely if ever inspected, the Commission suggested that this was perhaps due to the difficulty the public had in seeing those files (the public actually had to go to the station to look at the file) and the lack of knowledge of the existence of the files (though broadcasters routinely broadcast notice of the public file’s existence during the processing of their license renewal applications, rarely producing any viewers visiting the station to view the file). With respect to the new Form 355 detailing the station’s programming, the Commission rejected arguments that reporting of specific types of programming in excruciating detail imposes any First Amendment burden on stations, as the Commission claims that it has imposed no new substantive requirements. Yet the Commission cites its desires that the public become more involved in the scrutinizing of the programming of television stations, which it states will be aided by the new form, and also emphasizes the importance that the Commission places on local service (an item detailed in Form 355). At the same time, in its proposals detailed in its Localism proceeding (summarized here), the Commission is proposing rules requiring specific amounts of the very programming that is reported on Form 355, the very numbers that, in this proceeding, it claims have no significance. Moreover, citizens will be encouraged by the Commission’s actions to scrutinize the new reports, and file complaints based on the perceived shortcomings of the broadcaster’s programming. Broadcasters in turn will feel pressured to air programming that will head off these complaints. So, implicitly, the Commission has created the First Amendment chilling effect that it claims to have avoided.
In the order, the FCC also minimizes the costs of complying with its new requirements. The Commission suggests that the costs of digitizing a public inspection file would "involve a one-time cost of $15,000," and then could be maintained on a server for less than $20 a month. Even if this cost is accurate (and as set forth below, there are reasons to doubt this), for a small market television station even that cost can be quite significant. While the Commission suggests that small stations with minimal website operations can request a waiver of these requirements, it sets no standards by which such a waiver will be judged. Similarly, the costs for the constant review of a station’s programming necessary to complete the Form 355 will be substantial, as every day’s programming will need to be timed, classified, and recorded so that the weekly averages that are reported on the Form can be computed, and as the report requires a complete catalog of all public interest programming. Someone will have to make those computations, and prepare the required descriptions of the public interest programming, again not an insubstantial cost, especially for a small market station (and even for some larger market stations). And for what purpose? The Commission implies that it is for the greater good that will come from the information reported in the form – information which, as stated above, in the Commission’s own eyes is currently of no regulatory significance.
These issues may well be played out in appeals or requests for reconsideration of the new rules. But, unless and until the rules are changed, broadcasters will need to comply with the new requirements. First, the provisions governing the on-line maintenance of the public file include the following (with our observations in parentheses):
- The Rules will become effective 60 days after the notice of their approval by the Office of Management and Budget (as required by the Paperwork Reduction Act – this is paperwork reduction?) is published in the Federal Register.
- Stations can either post the public file contents on their own website, or on the website of their State Broadcast Association (why would the Association volunteer to do that?). Even if the State Association agrees to host the website, the station must have a link on its website to the report.
- If a station has no website, it does not need to create one to comply with these rules (and it has no obligation to place the file on the State Association site). But if it later develops a website, it must have the public file contents posted within 30 days.
- The contents of the political file do not need to be posted on the website
- Letters from the public do not need to be posted on the site – though emails from the public should be posted
- Documents that are posted on other sites, including the FCC site, need not also be stored on the station site, if a link to the documents is placed on the station’s site
- The file must be accessible to the disabled, complying with Conformance Level A of the World Wide Web consortium’s Web Content Accessibility (W3C/WAI) guidelines. (Information may be found here). This may preclude some files being stored solely in a PDF format (and will no doubt cause some consternation among those at stations, who we would expect to be most people, not familiar with these standards).
- Twice each day, the station must publicize on the air, with its station identification, the availability of the file on the website. At least one of those mentions must be between the hours of 6 PM and midnight.
The FCC Form 355 requires information including the following:
- A list of the station’s programming streams (i.e. the analog channel and any digital multicast program streams) and "their main programming focus"
- A list of the parent company and affiliates of the company which owns the station (isn’t this what Ownership Reports are for?)
- For each programming stream, the average number of weekly programming hours devoted to the following:
- High Definition programming
- National news
- Local news produced by the station
- Local news produced by some other entity (who must be identified)
- Programming devoted to "local civic affairs," defined as programming designed to provide the public with information about local issues, including statements or interviews with local officials, discussions of local issues, and coverage of local legislative meetings. This programming must be subtracted from the "news" programming reported above.
- Coverage of local electoral affairs – basically coverage of local elections – which must also be subtracted from the news coverage numbers reported above
- Independently produced programming, i.e programming not produced by a national network (presumably each local station will have to determine if a network has as little as a one-third interest in all programming that is being aired)
- "Other" local programming – which is not defined but presumably would include sports, religious, and entertainment programming produced within the station’s service area
- Public service announcements
- Paid public service announcements (a PSA-type announcement for which the station or any group that the station is affiliated with – presumably including state broadcast associations – receives something of value)
- Closed captioned programming
- A list of each national news story that includes significant treatment of community issues, listing for each such program:
- title, length and date and time of airing
- whether it was aired on the primary channel of the station
- whether it was locally produced
- whether it previously aired on this station or any other station (how is a station supposed to figure out what other stations a national news program aired on?)
- if it was part of a regularly scheduled news program
- whether any consideration was received for the broadcast of the segment
- A list of all local news program segments dealing with community issues, providing the same information for each such segment as listed above for national news segments
- A list of all local civic affairs program segments that provides significant treatment of a community issue, with all the same details as listed above for news segments
- A list of all electoral affairs programs that includes significant treatment of community issues, with the same details as provided for news segments
- The title, length and date and time of the airing of all independently produced programming
- A list of all local programming not otherwise listed above, with title, length,and date and time of airing, and whether the station received consideration for airing the program
- For each PSA, the name of the sponsoring organization, the number of times the PSA ran, the length, and the percentage of times that were during prime time hours
- For each paid PSA, the same information as for unpaid PSAs
- Details of programming directed to "undeserved communities," defined as demographic segments of the community to which little or no programming is directed (query – if no programming is directed to a particular demographic segment, how can a station have anything to report in this category?)
- Details of religious services or other local religious broadcasts aired at no change
- A description of how the station determined that its programming met community needs
- Details on the amount of closed captioned programming broadcast by the station, and a list of exempt programs that were aired, with details as to the exemptions
- Whether the station voluntarily provided video description of any of its programs and, if so, how much
- Information about broadcasts about community emergencies, including a statement as to whether or not the station complied with the rules that require such programs to be accessible to the disabled
- Whether or not more than 3 hours per day of programming is provided pursuant to an LMA or JSA.
As I was preparing this litany of information that the Form 355 will contain, I was trying to imagine how stations will comply with this requirement. As set out above, the form calls for an inventory of all program segments that deal with issues of public concern. To fully comply with the rules, it would appear that a station will have to have staff members dedicated to monitoring all programming broadcast on the station – including on multicast streams and including all network and syndicated programming – to determine if the programming contains a significant discussion of important issues of public concern. Then, if any segment of any program does contain such a discussion, the station will have to write up the description of that program for inclusion on the Form 355, providing the duration, topic and time of broadcast of each such program. The Form 355 will not be a form that a station can simply fill out in the last few days of the quarter, but instead will require a minute-by-minute review of station operations, and a daily updating up information to be ready to upload it on the quarterly due date.
This would seem to be an incredibly burdensome requirement for any station. But, as with any new regulatory mandate, the burden falls hardest on small market stations. The costs and time to monitor station programming is essentially the same whether a station is in Glendive, Montana or New York City, as the amount of programming that a station broadcasts in either a big or a small market is essentially the same. Yet a New York City station has far greater resources from which to pay the costs of compliance with these rules. The small market station, in many cases already reeling under the costs of the digital transition, will be crushed by the new burden that these new rules entail. If ever the Paperwork Reduction Act should be brought to bear to reject a program for the regulatory burden it imposes, this should be the case. Lets hope that the Office of Management and Budget is more attuned to the burden that these rules create than was the FCC.