The FCC last week issued a Notice of Proposed Rulemaking aimed to give incentives to broadcasters to air more local journalism and local programming by prioritizing the processing of certain applications by stations that feature local programming.  That decision drew dissents from both of the FCC’s Republican Commissioners, not because of the proposal for the preference, but because they were concerned about language in the Notice asking for comment on whether the FCC was correct in its 2017 decision that abolished the main studio rule and the policy requiring broadcasters to have the capability of originating programming from a physical location in their service areas.  

The proposal to prioritize the processing of applications by stations with local programming is a narrow one.  The priority would only apply to renewal applications, and applications for sales of full-power stations (assignments of licenses and transfers of control).  The FCC’s proposal would not apply this preference to routine applications that are processed in the normal course (with renewals usually being granted within a month after the three-month comment period following the renewal filing deadline, and assignment and transfer applications similarly being routinely granted within a few weeks of the end of the 30 day public comment period following the public notice of the filing of an application for FCC approval of the sale).  Instead, the majority decision proposes to apply the priority only to applications that are non-routine, giving faster processing to applications that have petitions filed against them, or where the FCC has other concerns with a routine grant of the application (seemingly, in the renewal context, that would apply to cases where there are certifications in the application that cannot be made by an applicant, e.g., where it cannot certify that it had properly maintained its public inspection file during the license term, or that the applicant had not violated FCC rules or had not been silent for an extended period during the license term).

The intent of the priority is to give broadcasters an incentive to air more local programming.  Whether a processing priority for non-routine applications would really provide such an incentive is certainly a question.  Would a broadcaster decide to air more local programming on the off-chance that an application for license renewal or sale might be challenged or held up – an eventuality that, even if it did occur, might not occur for years into the future?  And, while applications to approve a sale are often time-sensitive, so faster processing can be important, whether faster processing of a renewal is meaningful is also a question for consideration, because a broadcaster may continue operating while its renewal application is pending.  Moreover, even if the priority processing does motivate some more local programming, is providing a benefit (faster processing) to an applicant who cannot certify compliance with FCC rules (the usual reason for a renewal delay) really in the public interest?

The local priority is proposed to be given to those stations that originate “local programming.” The FCC asks many questions about what should constitute local programming in this context. The Notice suggests that the preference would be given to applicants whose stations originate at least three hours of locally produced programming each week.  The FCC asks if that programming should count only if produced in the community of license, or if produced anywhere in the service area of the station would be sufficient.  The Notice proposes that local programming qualifying for the preference include any local programming that is original (i.e., you can’t run three repeats of the same one-hour long local program).  Local programming would count even if the program contains some content that is not local, e.g., a local DJ playing recorded music would be considered local programming, even though the music may have been recorded elsewhere.  The proposal is that any locally produced programming would count toward the required three hours of weekly local programming, even if the licensee itself did not produce that programming.  It is proposed that licensee’s seeking this preference would need to certify its compliance.

Commissioner Carr suggested in his dissent that the proposal seems unlikely to provide the incentive to prompt many broadcasters to increase their output of local programming.  But his dissent, and that of Commissioner Simington, was not prompted by the release of the Notice seeking comment on whether the processing preference was a good idea, but instead by language in the Notice questioning in great detail the FCC’s 2017 decision to abolish the main studio rule and the requirement that broadcasters have a physical location from which they can originate programming within their service area.  The Notice suggests that this decision may have been wrongly made, and it alleges that the 2017 decision did not serve what the majority said was its purpose – promoting more local programming.  The majority decision asks for comment as to whether the elimination of the main studio rule did in fact lead to less local programming.  While not specifically requested in the Notice, it might be worth examining in comments filed in response to the Notice whether the purpose of the 2017 decision was really to encourage more local programming.  The basis of the 2017 decision arguably was not that it would necessarily increase local programming, but that it would reduce unnecessary regulatory burdens on broadcasters (and the associated costs) by eliminating a regulatory requirement that was no longer needed.  The 2017 decision noted that few people in a community interact with a broadcast station through an in-person visit anymore, as most dealings are through email or the phone.  The decision noted that the costs imposed on broadcasters by the main studio rule were costs on broadcasters not faced by stations’ digital competitors.  The decision also noted that broadcasters can originate programming that serves the public from anywhere – it need not be produced in the community where the station is located.  See our articles here and here on the decision to abolish the main studio rule, and our articles here and here on the proposal that led to the abolition of the main studio rule). 

It is interesting to note that, despite questioning the decision to eliminate the main studio rule, the Notice did recognize that the Commission has held that local programming is not necessary to serve the public interest, acknowledging that programming produced anywhere can serve needs of local communities.  The Notice also does not propose to do anything to reinstate the main studio rule, an anomaly that Commissioner Carr also pointed out in his dissent.  Why ask the questions about the main studio rule in a proceeding that does not propose any reinstatement of that rule? These questions at least facially seem irrelevant to the question of giving priority to the processing of applications by broadcasters offering local programming.  No doubt, these questions will be raised in comments filed in response to the Notice. 

Comments on the Notice will be due 30 days after the Notice is published in the Federal Register.  Reply Comments will be due 60 days after the Federal Register publication.