While some might think that the business of deregulation is easy, that usually is not the case, as comments on the FCC’s proposals to modify the public notice requirements for broadcast applications make clear. In a Notice of Proposed Rulemaking about which we wrote here and here, as part of its initiative on the Modernization of Media Regulation, the FCC looked to modify the rules governing public notice that broadcasters must give when they file certain types of broadcast applications – particularly license renewals and applications for the assignment or transfer of broadcast stations. The FCC asked whether the obligations requiring most of these notices to be published in a local newspaper, in addition to being broadcast on the station, could be replaced by giving an online public notice. The Commission even asked if on-air notice was still necessary. The FCC also asked how the rules should be unified, so that the various exceptions and textual differences that apply to different rules could be made simpler to understand. Comments on these proposals were filed last week between the holidays.
While this proposal seems very straightforward, and many of the comments took the sides that one would expect, there were numerous comments that range from support for continued newspaper publication (principally from the newspaper industry), to calls for more detailed on air-announcements from certain public interest groups, to suggestions that the on-air notice be more abbreviated and used to direct listeners and viewers to a more detailed online disclosure. Let’s look at some of the specific comments that were filed.
An organization representing several state press associations took the obvious position in its comments of supporting continuing newspaper publication, arguing that the publication in a newspaper provides a qualitatively different experience than an online publication – as most people go online to find a specific item, while reading the newspaper allows for more serendipitous discovery of information provided on the printed page, which leads to more people discovering government-mandated notices. The comments also argue that the obligation to print these notices in the newspaper provides the news media greater notice about the matters addressed by the notice, causing the media to write stories about the matter in the notice. These comments also argue that the digital divide persists, contending that many people still do not have Internet access (though the comments don’t cite statistics indicating whether those without Internet access are likely to be newspaper readers). The comments do cite several instances where certain state government agencies have gone to online notices and found that public participation in their proceedings has decreased (of course, nowhere suggesting that broadcast notice of such agency actions was required).
MMTC, representing the minority community, suggests in its comments that requirements for newspaper notice impose an unnecessary financial burden on small businesses without any demonstration that any real public interest benefit is achieved. Other public interest groups submitted comments that focus not on the proposal to abolish the need for newspaper publication, but instead on the proposals to limit on-air notice of applications – arguing that these notices should be more informative and use less jargon so that they are better understood by the public.
Broadcaster comments point out that the obligations to provide these public notices are not justified by the public interest benefits that they provide. The NAB comments show that only 1.5% of all license renewal applications received any public comment at all, and most of that was generated by DC-based public interest groups unlikely to be relying on local public notices to discover the filing of broadcast applications. The NAB also points out that these notice requirements are only imposed on broadcasters – no other FCC-regulated entities have public notice obligations, yet interested parties are aware of those applications and manage to file comments where appropriate. The NAB suggests that, even if the FCC decides that some public notice should still be given, the appropriate notice is a brief on-air announcement directing listeners to a more detailed online statement, similar to what the FCC determined was appropriate for disclosure of contest rules (see our post here). A similar position was expressed by Nexstar Broadcasting in its comments.
We would expect FCC action on this proposal at some point later this year. This proposal, on what seems like a very small regulatory matter, demonstrates that for every rule, no matter how clear the need for reform seems to be, there is some constituency that will argue that change is not appropriate. We will see how the FCC balances the claims of the parties in this proceeding, and in the many other proceedings likely to follow in the Modernization of Media Regulation process.