On Friday, the US Court of Appeals for the DC Circuit followed the FCC’s lead in denying the NAB’s request for stay of the requirement for TV stations to post their public inspection files online.  Accordingly, that rule goes into effect on Thursday, August 2, 2012.

Effective that date, TV stations should post all new public file documents online in the FCC database created for this purpose.  Stations will have six months in which to post pre-existing public file documents into that database. The online posting requirement applies to TV stations only…not to radio stations or cable systems.

Posting of the political public file will not be required until July 1, 2014, except for the top four network affiliated stations (ABC, NBC, CBS, Fox) in the top 50 markets.  No station will be required to post political file documents created prior to August 2, 2012.


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The FCC has once again proposed a $10,000 fine against a college radio station missing quarterly issues/program lists in the public inpsection file.  This time, the culprit is Rollins College, a small liberal arts college in Florida with 1700 students. 

We know that $10,000 is the "base forfeiture" for failure to maintain a complete public inspection file, and this is not the first time the FCC has proposed this fine for a college radio station.  But we have questioned before whether a $10,000 fine is appropriate for this type of violation and the amount seems even more egregious when it is levied against a small noncommercial educational college radio station.  It is the same fine that would be levied against a major commercial television network station located in New York City for the same violation.

Yes, rules are rules and they should be followed by all FCC licensed broadcast stations.  But as Dave Seyler notes in a thoughtful piece written for Radio Business Report, it may not be in the best interests of the federal government to "siphon money out of our educational system."  In this case, as in other similar cases, the college received no warning following an FCC inspection…just the fine. 


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The FCC has announced that the obligation for television broadcast stations to post their public inspection files online will become effective August 2, 2012, absent a stay requested by the National Association of Broadcasters (NAB), which has appealed the rule to the US Court of Appeals for the DC Circuit.

Absent a stay, the rule requires full power and Class A television stations to post any NEW public file documents online at an FCC-hosted website as of August 2nd.  Those broadcasters will have six months or until February 2, 2013 to post PRE-EXISTING public file documents online. 

The political public file, which is the subject of the NAB appeal, will be treated a bit differently.  NEW political public file documents must be posted effective August 2 by only the top four network affiliated stations (ABC, CBS, NBC and Fox) in the top 50 markets. There is no requirement to post pre-existing political file documents online.

All other TV stations (i.e. non-network affiliated stations in the top 50 markets and ALL TV stations outside of the top 50 markets), do not have to post political public file documents online until July 1, 2014.


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The FCC has issued a flurry of fines against broadcast stations in the past week or two.  While a number of these fines were for the operation of unlicensed pirate radio stations, several of the fines were for public inspection file violations, stations broadcasting with excessive power or failing to reduce power at nighttime, or

The FCC released a Notice of Apparent Liability for Forfeiture today, proposing a $10,000 fine against a public TV station in Los Angeles for requiring an appointment to view the station’s public inspection file. This case shows how seriously the FCC takes the requirement of open and unfettered access to a broadcast station’s public file.  An FCC agent visited the station’s main studio twice without identifying himself as an FCC employee.  Both times, the station’s security guard refused to let him see the station’s public inspection file or speak with the station manager without an appointment.

On the third visit, the FCC agent identified himself as such and was allowed to view the station’s public inspection file "after a thorough examination of the agent’s badge and several phone calls to [station] personnel." 

The public inspection file was found to be complete. However, the station was fined $10,000 for "willfully and repeatedly" failing to make the public inspection file available.  The FCC stressed that "stations cannot require members of the public to make appointments to access a station’s public inspection file."


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Many broadcasters, both television and radio, have been running the NAB spots on the Future of Television.  Those spots contain a description of the service available from local television stations and the new technologies that over-the-air television are in the process of deploying, and end with the suggestion that the Future of Broadcast Television lies in "technology not regulation from Washington DC."  Obviously, these ads are geared to address some of the many legislative and administrative issues facing TV broadcasters – including the proposals to take back some of the TV spectrum for wireless broadband uses.  Given that these spots could be arguably be seen as addressing Federal issues, to be safe, they should be identified as issue ads in stations’ public inspection files, and appropriate information about those spots should be placed in the files.

The NAB, in announcing the availability of these spots, suggested this same precaution.  We’ve written before about issue ads, and the need to place notations in the public file about these ads. For instance, when stations ran ads on the broadcast performance royalty, we suggested that same treatment (and proponents of the royalty complained that broadcasters might not be making such notations).  What needs to go in the public file?  As the issues are Federal ones (as opposed to state and local issues that have lesser disclosure obligations), the requirements are similar to those that apply to political candidates. 


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Earlier this week, I posted a Top Ten list of legal issues that should keep a broadcast station operator up at night.  In two orders released today, the FCC found stations where these issues apparently had not been keeping their operators awake, as the FCC issued fines for numerous violations.  At one station, the FCC found that the EAS monitor was not working, the fence around the AM tower site was unlocked, and the station had no public inspection file, resulting in a $5500 fine (see the FCC’s Enforcement Bureau order here).  At another station, the FCC inspectors were told that the station had no public file, and they also found the AM tower site fence unlocked, resulting in a $3500 fine (see the order here).  These cases are one more example that, while broadcasters have plenty of big-picture legal and policy issues that they need to be concerned about, they also need to worry about the nuts and bolts, as the failure to observe basic regulatory requirements like tower fencing, EAS, and public file requirements can bring immediate financial penalties to a station. 

The tower fencing issue is one that we have written about before.  FCC rules require that public access be restricted to areas of high RF radiation, which are likely to occur at ground levels near AM stations.  The FCC has many times issued fines for fences with unlocked gates, holes, or areas where there are gullies where a child could climb under the fence into the tower area.  The FCC has been  unwilling to accept excuses that the fence was locked "yesterday" or "last week" or at some other less defined time in the absence of proof, as they’ve heard that excuse many time.  If the fence is open when they arrive, expect a fine.


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In the last few weeks, I’ve been asked several times by broadcasters whether an ad should be considered an "issue ad."   Usually, the ad in question deals with some sort of faintly controversial issue, and the broadcaster seems torn about how to classify the ad.   In many ways, the answer is almost irrelevant as, other than some public file obligations, whether or not an ad is an issue ad has little practical significance.  Issue ads are not entitled to special rates – lowest unit rates are reserved for candidate ads.  They are not entitled to special placement in broadcast schedules.  As there is no Fairness Doctrine, there isn’t even a requirement that you treat both sides of an issue in the same fashion (except perhaps, where a Fairness obligation may still arise if the issue being discussed is a candidate in an election, when the last remnant of Fairness, the Zapple Doctrine, has not officially been declared dead).  So why worry about whether or not something is an issue ad?

The principal reason is the public file. Commission rules require that the sponsor of an issue ad be identified in a broadcaster’s public file, along with the sponsor’s principal officers or directors.  This is required for any ad dealing with a controversial issue of public importance.  The ad does not need to deal with a political issue, or one to be considered by a government body.  Any controversial issue of public importance merits the public file treatment.  For ads dealing with a "federal issue", one to be considered by the US Congress, any Federal administrative agency or any other branch of the United States government, additional disclosures need to be made in the file (which we have listed before), setting out all the information that you would need to provide with respect to a candidate ad – including the price paid for the ad and the schedule on which the ad will run. 


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On November 10, Davis Wright Tremaine’s David Oxenford and Bobby Baker, the head of the FCC’s Office of Political Broadcasting, conducted a webinar on the FCC’s political broadcasting rules and policies.  The webinar originated from Lansing, Michigan, before an audience of Michigan Broadcasters, and was webcast to broadcasters in 13 other states.  Topics discussed included reasonable

We’re not even in what most would consider election season – except for the two states with off-year governor’s contests and those other states with various state and municipal elections. Yet political ads are running on broadcast stations across the country.  Republican groups have announced plans to run ads attacking certain Democratic Congressmen who are perceived as vulnerable, while certain Democratic interest groups have run ads about the positions of Republicans on the Obama stimulus package and the President’s proposed budget.   In addition to these ads targeting specific potential candidates, there are issue ads running across the country on various issues pending before Congress, or likely to be considered by Congress in the near term. These ads often have a tag line “write or call your Congressman and tell him to vote No” on whatever bill is being discussed. While these are not ads for political candidates that require lowest unit rates or specific equal opportunities, they do give rise to political file issues.  Stations need to remember to observe these requirements and put the required information into their public file to avoid FCC issues.

Under provisions of the Bipartisan Campaign Reform Act, when a station runs an ad addressing a “Federal issue”, the station must keep in its public file essentially all the same information about the ad that it would maintain for a candidate ad. The station must identify the spot and the schedule that its sponsor has purchased, the identify of the sponsor (name, address and list of principal executive officers or directors), the class of time purchased, and the price paid for the ads.  Federal issues are ones that deal with a Federal election or with any issue to be considered by Congress or any Federal government agency.


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