As the campaign enters its final weeks, the FCC has begun to send out the next round of proposed consent decrees to radio broadcasters unable to certify in their license renewal applications, because of perceived deficiencies in their political file, that that every document was placed into their FCC-hosted online public inspection file on a timely basis (see, for instance, this decree released yesterday). The certification of public file compliance is required of every applicant for license renewal. As with any other certification, a licensee must review its records and truthfully answer the application’s question, either certifying that it has complied with all of the public file obligations or disclosing any deficiencies. As we wrote last year, in cases of substantial noncompliance, the FCC has fined stations that essentially ignored the public file rules. But, until recently, in cases where a station had made a good faith effort to comply but had some minor deficiencies in the public file (as is natural over an eight-year renewal period), the FCC has generally been granting renewals, acknowledging that minor violations do not signal that a broadcaster is not operating in the public interest. However, in August, the Commission initiated a new policy for stations that reported deficiencies in the political portion of the public inspection file, sending draft consent decrees to virtually all stations unable to certify full public file compliance because of any political file issue.
These consent decrees were modeled on the ones that were sent in July to six large radio broadcast groups as a result of an earlier FCC review of their political files (see our article here on those consent decrees, which also provides a review of a broadcaster’s political file obligations). The difference is, of course, that the July decrees went to large radio groups for what the FCC described as hundreds of violations at many radio stations. The new renewal-driven consent decrees were sent to all stations that did not certify political file compliance, even to stations that had only a handful of political advertising sales if those stations determined that they could not certify that all required documents went into the file in a timely fashion. While the decrees carry no monetary fine, they do require that the signing station enter into a compliance program – appointing a compliance officer, having a written compliance plan, reporting any violations to the FCC as they occur, and providing a report to the FCC at the end of each calendar year for two years cataloging all political sales and when the required documents went into the political file.
After the first round of these decrees were sent in August to over 100 broadcasters from the first year’s radio license renewal groups who could not certify compliance because of political file issues, discussions were held with the FCC about the scope of the decrees. The FCC recognized that there were some cases where violations were so minor that they did not warrant imposing the compliance burden demanded by the decrees. The Commission has informally said that where, in the two years prior to the filing of the license renewal application, a station had 5 or fewer instances where political orders were not timely uploaded to the public file, upon request after the receipt of the draft consent decree, a licensee could be excused from having to sign the decree as a condition of their license renewal. A significant number of smaller stations and larger stations with isolated instances where the uploads were not made on a timely basis, have since been excused from having to enter into these consent decrees.
Even this exception for minor violations does not excuse a station from initially reporting in its renewal that its file was incomplete. Nor does the Commission’s current policy signal that it will continue to provide in the future this exception for what they term “de minimis” violations. Instead, these decrees, together with the decrees entered into with the larger radio operators earlier in the year, and the admonitions issued to TV stations for political file violations on disclosures on issue ads (see our articles here, here, here and here), signal the importance that the FCC places on the political file. Broadcasters should consult their own counsel about any compliance issues that they have in these areas, as this area is particularly complicated with detailed reporting obligations. Our article on the large radio group consent decrees provides some guidelines for political file compliance, as does this video that I hosted for the Indiana Broadcasters Association on the political file obligations. Do all you can to educate yourself as to the obligations under the FCC’s rules and policies. The FCC is watching – so take these obligations very seriously.