The Online Public File for television stations is now a reality. While appeals of the imposition of the rules remain pending, both the FCC and the US Court of Appeals denied stays of the August 2 effective date for the new requirements, so full-power and Class A television stations should now be complying with the new obligations to maintain their public files online. The Online Public File is hosted by the FCC, and uses the FCC’s newly created system for uploading, storing and accessing the documents. So far, the system seems to be functioning with a minimum of problems, though one or two glitches have been reported here and there.
Documents that stations file with the FCC are supposed to be uploaded to the Online Public File automatically by the FCC, so individual stations do not need to worry about importing them into the new system. We have heard that this may not have occurred in every instance, so stations should check their files to be sure that the proper uploading has in fact occurred. Other documents will need to be uploaded by the stations themselves, and stations will also be responsible for maintaining and monitoring the file, and deleting documents when their retention is no longer required.
Just what are the requirements for the new online public file? The FCC has put out its own Frequently Asked Questions, available here. There are many other questions that will no doubt arise over time. We have tried to do our own summary of the obligations as we know them in the answers to common questions that we are getting about the obligations under the new rules. Those questions and answers are set out below.
What Stations are Subject to the New Rules?
All television stations, both commercial and noncommercial, must comply with the new rules. This includes Class A TV stations, but not Low Power TV or TV translator stations.
Radio is not subject to the rules – yet. The FCC has said that they plan to expand the rules to radio at some point in the future, but want the experience dealing with TV stations first.
Where Do You Go To Get Access to the Online File?
What Documents Will the FCC Post on the Online File?
All documents that are electronically submitted to the FCC, and which must be placed in the public file under current rules, will be automatically posted by the FCC onto a station’s Online Public File. This will include documents such as the station’s Biennial Ownership Report, Children’s Television Quarterly Reports, License Renewal Applications, and Construction Permit Applications. The FCC will also post a copy of the FCC license for the station, and a copy of the Public and Broadcasting, A Procedure Manual, the FCC publication that all stations need to keep in their files.
What Documents Must the Station Upload?
Other documents currently required to be in the Public File will have to be posted by the station. This will include, most prominently Quarterly Issues Programs Lists and Annual Equal Employment Opportunity Program reports. Other documents that must be uploaded include: Time Brokerage and Joint Sales Agreements; quarterly certifications on meeting commercial limits for children’s television programming; must carry/retransmission consent elections; and contracts and other documents that must be filed with the FCC (e.g. network affiliation agreements, articles of incorporation or by-laws, agreements like options or rights of first refusal that relate to future ownership of a station, and other contracts that limit the operational decisions of broadcast stations). But the most voluminous requirement, particularly in an election year, will be to upload political broadcasting material (starting with Large stations, as described below).
Is There Other Information that A Station Needs to Provide for its Online Public File?
In addition to the documents referenced above, a station needs to provide in the Online Public File the location of its main studio and the telephone number for the station. The Online Public File will also need to contain the email address of a contact person at the station who can answer questions about the public file.
What Should Have Happened on the August 2 Effective Date?
On August 2, all stations must start to place all new public file material into their online public files instead of in their physical files (except as noted below). For “Large” stations (Big 4 Network Affiliates in the Top 50 markets), this includes all political file materials. For smaller stations – those outside the Top 50 markets and those which are not affiliates of the Big 4 networks – no political file material needs to be placed in the file until July 1, 2014.
What Does the Effective Date Mean as a Practical Matter?
Obviously, for Large stations, the impact is immediate – in connection with the need to upload political materials. For other stations, the impact is less immediate. Unless, soon after the Effective Date, a station has a complaint filed against it, correspondence with the FCC that needs to be included in the public file, or a new contract or agreement that would need to be filed with the FCC, the first real need to upload documents will be in early October. Quarterly Issues Programs lists need to be uploaded for all stations by October 10, and Annual EEO Public File reports need to be uploaded in states that have an October 1 anniversary date for their required license renewal filing.
When Do Documents that Were Created Before the Effective Date
Need to Be Uploaded to the Online Public File?
All stations need to upload past public file documents (except past political file documents and letters/e-mails from the public) onto their online public file within 6 months of the effective date – or by February 2, 2013. This would include past Quarterly Issues Programs Lists (back to the beginning of the current renewal period) and past Annual EEO Public Inspection File Reports, also to be maintained for the entire license period and up through the FCC’s grant of the station’s next renewal application.
The only exception is for political file documents created before the Effective Date. These documents do not need to be uploaded into the online file. As such documents need only be retained for two years, many of these documents will quickly be irrelevant.
What is Included in the Political File?
In the FCC’s order adopting the obligation for the Online Public File, the FCC refers to the political file only by reference to Section 73.1943 of the rules. That section of the rules deals only with the required information about the sale of time to candidates themselves and the information that needs to be posted about such purchases.
Commonly, most stations talk about the “political file” more broadly, including information about third party purchases on Federal issues (including Federal elections), which is covered in Section 315 of the Communications Act and not in the Commission’s rules. Some also look to Section 73.1212, where there are public file disclosure obligations for non-Federal issues of public importance. The FCC has been back and forth on this issue, but is seemingly now taking the position that all of this kind of documentation about third-party purchases on political campaigns is part of the station’s “political file.” But this advice has changed several times, so stations need to consult with their own counsel about this ambiguity in the new rules.
After the Effective Date, What Paper Public File Records Must be Retained?
Letters and emails from the public written to stations about their operations must be kept in a paper file. The FCC decided that these letters and emails could infringe on individual privacy if posted online. Thus, these communications will not be uploaded to the Online Public File, but instead retained in a paper file at the station throughout the current license term and up through the next renewal.
Political files created before the Effective Date must be retained in the paper file for two years.
Do Stations Need to Keep Back-up Files?
For the most part, stations do not need to be able to recreate the public file documents uploaded to the new Online Public File, as the Commission’s system has been designed to provide redundancy to minimize downtime. However, because of the time sensitive nature of political file information, the station must have political information available for inspection in the event that there was to be some failure of the new system. These political back-up documents do not need to be maintained in a public file, but stations should keep them in some internal records in case they are needed. The FCC has indicated that stations will be able to “mirror” the station’s online public file onto a local station server each day, and in this way maintain a daily backup of the station’s political file. Stations should insure that they are taking steps to have this back-up documentation of the political file available in case it is needed.
Do Stations Need to Remove Documents from the Online File?
While the FCC will automatically upload FCC applications and other FCC filings to the Online Public file, the FCC will not automatically remove these FCC submissions from the online file once the required retention period has passed. Stations need to do maintenance of the online public file on their own, removing files that no longer need to be retained.
Do Stations Need to Publicize the Existence of the Online Public File?
A link to the station’s Online Public File must be placed on a station’s website. The station’s website also must list the name and contact information for a person at the station who can assist the disabled with accessing the online public file. While the FCC will be responsible for any technology on the site necessary for accessibility, the station must still be prepared to assist those that need help in accessing the site.
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The Online Public file will be reevaluated by the FCC in the coming years. That is, of course, if it survives the appeals currently being prosecuted against it. While the FCC and the Courts have not stayed the effective date of these new public file rules, the appeals at both levels continue. So start complying with the new rules – but watch the news to see what developments may occur in the near future. And look for updates on the other issues that certainly will arise once people begin to use the system.
Updated: 8/14/2012, 5:00 PM EDT to correct the answer to the Question on the Back-up files that stations need to maintain to reflect that only political files need to be available immediately in the event of a failure of the Commission’s system.