In perhaps the most severe set of penalties that we have seen for public inspection file violations, the FCC released two sets of fines to stations that had self-reported, in their license renewal applications, that they did not have Quarterly Issues Programs lists in their public file for the entire 8 year license term. As we
When the FCC last month started a new proceeding to mandate an online public file for television stations, the Commission promised to soon initiate another proceeding to look into the need for a new form to document the public interest programming that TV stations provide. The FCC today fulfilled that promise, and issued a Notice of Inquiry ("NOI") to start the process of adopting a new form for TV stations to complete to report on various categories of "public interest programming," however that might be defined. In 2007, the FCC had adopted Form 355 to accomplish that task. But, after an outcry from stations about the paperwork burden that the form would impose, the FCC never submitted it to the Office of Management and Budget for approval under the Paperwork Reduction Act, and thus the form never became effective. The adoption of the Form 355 was vacated last month in the online public file proceeding. But the Commission now proposes its return – in some fashion. So what does the Commission now propose to require from TV stations to document their public interest programming?
First, the FCC asks a series of questions about how such a form should be structured, and how the information should be collected to be meaningful for those that want to analyze it, but not overly burdensome for the TV stations. The Commission seems to conclude that the form is necessary – not even asking questions on that basic issue of whether to adopt a standardized form. The NOI states:
We continue to believe that the use of a standardized disclosure form will facilitate access to information on how licensees are serving the public interest and will allow the public to play a more active role in helping a station meet its obligation to provide programming that addresses the community’s needs and interests
The Commission then goes on to discuss the Quarterly Programs Issues lists ("QPIs") that are currently required to be placed in a station’s public file every three months – describing the issues that station management sees as important in the community and the programs that the station has broadcast to address those issues (see our most recent advisory on this obligation, here). The Commission states that these quarterly reports should be replaced, as broadcasters have been uneven in their recordkeeping of such lists. Of course, that may be because the FCC has never proscribed any specific form for these reports, nor specifically said what is acceptable and what is unacceptable in connection with such reports. Seemingly, replacing one form with another (albeit a more complete, detailed new form) may well accomplish nothing if the new report does not have clear and unambiguous instructions – something never adopted for the Quarterly Reports.
In several recent cases, the FCC issued big fines to stations that had significant gaps in their public inspection files – fines of between $10,000 and $14,000. Unlike many other recent public inspection file fines, these fines did not arise from self-reporting of violations in a license renewal application, nor were they discovered as a result of a complaint from a disgruntled listener or competitor. These fines also did not arise in connection with the discovery of other violations at the stations. Instead, these fines were the result of FCC inspections – inspections that seemingly did not turn up other significant violations. Thus, these cases serve as a warning that broadcasters need to ensure that their file is complete and up-to-date at all times. Curiously, these large fines come at the same time that the FCC is about to consider comments on whether the public file paperwork burden is justifiable.
These fines were large – demonstrating a seeming trend to ever-higher fines for public file violations. The $14,000 fine issued today went to a Class A TV station that had no quarterly programs issues lists in its public file for the entire license renewal term – 34 reports were missing at the time of the inspection. Based on this egregious violation, the FCC decided that an increase over the base $10,000 fine was in order. Two AM stations, which had pretty much the same violation as the Class A station – no QPIs for the same period of time – received $10,000 fines (see decisions here and here). A third AM station received a $10,000 fine for having no new information in its public file since 2006.
Last week, in a frenzy of cleaning up issues left from old license renewal applications, the FCC upheld several $9000 fines for public file violations – most in connection with the failure of licensees to have a complete set of Quarterly Programs Issues lists ("QPIs") in those files. The broadcasters who were fined came up with a variety of arguments as to why those fines should be reduced or eliminated – which were uniformly rejected by the Commission. What we find interesting is that, while these large fines were levied against a number of broadcasters, the FCC is at the same time asking whether retention of the public file can be justified under the provisions of the Paperwork Reduction Act. So which is it – an important tool to keep the public informed about the ways that stations serve their public, or an unreasonable burden on those who are regulated by the FCC?
While this request for comments on the paperwork burden imposed by the public file may be nothing more than a routine review of Commission rules to justify their continuing existence under the provisions of the Paperwork Reduction Act, it is interesting that this rule – long the source of wrath from broadcasters who complain that the file is never visited except by the occasional college broadcasting student who has to do so as a class project, or by the competitor in the market looking for something to complain about (and even those visits are extremely rare for most stations) – is now up for review and comment. Why was this rule selected for review? Will there be other rules about which the FCC asks for comment? Is there any justification for the burden imposed on broadcasters (which the FCC estimates at a cumulative 1,831,706 hours of work annually, but to which it curiously assigns no associated cost burden with the required tasks) when it is routine for the file to be never visited? You have your chance to voice your comments – with the filing deadline for such comments being June 17, 2011.
It’s the beginning of a new year, and each year brings numerous regulatory deadlines for radio and television broadcasters. We’ve put together a calendar that sets out many of those dates. You can find the calendar setting out important dates for broadcasters in 2011 here. It sets out many important dates – including the dates for regulatory obligations including: EEO Public…
So what Washington issues should be keeping broadcasters up at night? At the Connecticut Broadcasters Association Annual Convention in Hartford on October 14, and the Kansas Association of Broadcasters Annual Convention in Wichita on October 18, I presented my Top 10 list of issues for broadcasters – dealing with issues both practical and policy-based. The PowerPoint presentation from Connecticut is available here, and that from Kansas is available here. At these sessions, we discussed a variety of legal issues of importance to the industry, including the need for broadcasters to consider the upcoming license renewal cycle. As we wrote a few weeks ago, that cycle begins with stations in Virginia, Maryland, DC and West Virginia in June 2011, and will continue across the country for the next few years, with radio stations in Kansas filing renewals in February 2013, and radio stations in Connecticut filing on December 1, 2013. Television stations in each state will have applications due a year later. To be sure that stations are prepared for the renewal, they should be checking their public inspection files to make sure that they are complete, and should be preparing quarterly programs-issues lists detailing the programming that they broadcast to serve the public interest. A copy of Davis Wright Tremaine’s most recent advisory on the Quarterly issues programs list is available here. The most recent Quarterly Programs Issues List should have, by October 10, have been placed in the public files of all stations around the country, covering issue-responsive programming that was broadcast in the last quarter. The DWT Advisory covering all of the other materials that should be in the public inspection file, and the retention period for that content, is availablehere.
We also discussed compliance with the FCC’s EEO rules, and how important such compliance is – and how each station’s EEO performance will be evaluated at license renewal time or if the station is randomly audited in the FCC’s EEO random audit process. We wrote about some of the complaints of certain public interest organizations about how they felt that the FCC had not been aggressive enough in EEO enforcement, here. With the scrutiny given to this issue, broadcasters should be observing their obligations carefully. DWT’s advisory on EEO compliance is available here, and our most recent reminder on the annual public inspection file reports for broadcasters is available here. A PowerPoint presentation from a seminar that I just completed for the Washington and Oregon Broadcasters Associations will be posted on our blog shortly, which will highlight some of these EEO obligations.