The online public inspection file for radio is moving closer to reality at an unusually fast pace. Yesterday, the FCC issued a Notice of Proposed Rulemaking, seeking to expand the online public file requirements that now apply to broadcast TV stations to radio (see our summary of the obligations here, and a presentation that we did on those requirements, here). The rulemaking proposal also looks to adopt online public file obligations for cable systems, satellite television systems, and Sirius XM. Comments will be due 30 days after the NPRM is published in the Federal Register.
The NPRM proposes a phased-in approach to these obligations for radio. It would first require the online public files only for stations in the top 50 Nielsen (formerly Arbitron) markets which employ five or more full-time employees. The Commission chose these stations to begin the process, reasoning that they are subject to the EEO rules and would thus have EEO reporting obligations (which are already online for most station, albeit on their own station websites), and would have more resources to meet any obligation that the rule imposes. The Top 50 markets were also the starting point for the roll out of these obligations for TV stations, and are likely also in areas where there is significant political broadcasting activity. The NPRM asks whether a six month period to implement the new requirements from the effective date of any set of new rules would be appropriate.
As in the case of TV, the radio public file will be posted onto a site hosted by the FCC. The FCC will automatically upload those portions of the file that consist of FCC filings (e.g. Ownership Reports, construction permit applications, licenses, renewal applications, etc.), while the station would be responsible for the rest of the material that need to be in the file, including Annual EEO Public Inspection File Reports, Quarterly Issues Programs Lists, documents relating to ownership and control of the station (e.g. option agreements, stock pledges, LMAs, JSAs, etc.), and the documents that need to be in the political file. The political file, for TV, has been the portion of the file that is most burdensome – especially during hot election cycles.
For all other radio stations outside the Top 50 markets, the FCC proposes to delay all online public file obligations for two years, just as it did for TV. The FCC seeks comment on whether it should permanently exempt all noncommercial educational radio stations, as well as radio stations with fewer than five full-time employees. As in the case of TV, the FCC proposes to require that, by the effective date, all stations upload all of their EEO reports and Quarterly Issues Programs lists from the current renewal term, as well as all other documents (but for letters from the public which are retained in the on-site paper file) that would be in the paper file, except in the case of documents that need to be in the political file. Those documents would only have to be uploaded on a going–forward basis from the effective date of the new rules. Old political file documents would be kept in paper for the remainder of the two-year holding period.
While we won’t summarize the all of the questions asked about expanding the online file obligation to satellite and cable, the online public file rules pose some new challenges for these entities, as their overall public file obligations are not as extensive, and not as clearly defined, as those for broadcasters. But it appears that the political file is driving this proposal for these entities, as the Commission notes several times the growing percentage of political advertising dollars now spent in cable.
This proceeding is moving very fast. The FCC only asked for comments on the initial proposal for the initiation of this proceeding in August (see our post here), and we are already to the formal proposal stage – something that often takes a far longer period of time. Clearly, this proceeding is important to some on the Commission, so look for it to move quickly after comments are filed, probably looking for these rules to be effective (at least in the big markets) in time for the 2016 election cycle. As the petition seeking these rules was filed by the same groups that have been active filing complaints about the adequacy of the political file of TV stations, it seems clear that this is the focus of the new rule.
Initial comments will be due 30 days after Federal Register publication, and reply comments will be due 60 days after Federal Register publication.