The FCC yesterday issued a Public Notice addressing news sharing or “pooling” agreements between television stations that are coming together as a result of the COVID-19 pandemic. Stations may be faced with fewer crews to cover local events as infections and self-quarantines take place, and because of the general obligation to maintain physical distancing from other people, no one wants a crowd of camera crews and reporters at every news event. The FCC’s notice yesterday states that such agreements entered into during the crisis for news sharing do not need to be in writing and do not need to be in the public file – an exemption to the normal obligation to reduce any sharing agreement between TV stations to writing and add it to the online public file. That obligation exempts “on-the-fly” arrangements during breaking news events and those precipitated by unforeseen or rapidly developing events. The FCC concluded that pandemic-related agreements fit into that category.
Ordinarily, the obligation to include sharing agreements between TV stations in the public file is a very broad one. We wrote about that obligation here. The rule grew out of concerns by the FCC that stations could be using sharing agreements to skirt the FCC’s ownership rule limitations and wanted such agreements to be public so that it, and the public, could review their provisions to determine if any FCC action was necessary.
Obviously, that concern has nothing to do with the current agreements that are being set up to facilitate news coverage during the pandemic. But stations need to note that the exemption described in the Public Notice yesterday was limited to temporary shared news-gathering efforts related to COVID-19 news coverage. If agreements are meant to last beyond the current emergency, or are otherwise unrelated to the current pandemic circumstances, they should be in writing and included in the public file. As the dividing line may not be clear, talk to your own counsel for guidance as to when these news-sharing agreements need to be evidenced by a written document and included in your public file.
We also note that there may be other considerations not involving the FCC that can arise from these agreements. For instance, there may be copyright implications if stations agree to share content that they did not create. Similarly, there may be questions about how long shared content can be used and re-used. For instance, there may be questions about whether it can be used in a retrospective on the crisis once it is over. Thus, stations may well want to put these agreements into writing to make sure that everyone understands the extent of the permissible sharing. Again, talk to your own attorneys about these issues.