The full text of the FCC’s Order overturning its 2007 decision on online public inspection files for TV broadcasters and the adoption of the Form 355 "enhanced disclosure form" has now been released. This order, adopted at the FCC’s open meeting this week (held on October 27, 2011, which we wrote about here), also contains a Further Notice of Proposed Rulemaking again suggesting an online public file, but this time it would be one hosted by the FCC. In reading the full text, more details of the FCC’s proposal become clear. As set forth below, the Order suggests everything from a future application of these rules to radio once the bugs have been worked out, to an examination of whether a station needs to save Facebook posts and other social media comments in the same way that it preserves letters from the public and emails about station operations, to a proposal for stations to document in their files information about all "pay for play" sponsorships. Comments on these proposals, and the others summarized below, which include a request for detailed information about the costs of compliance with the proposals, are due 30 days from when the order is published in the Federal Register, with Reply Comments due only 15 days thereafter. The FCC, after sitting on these obligations for almost 5 years, now seems to be ready to move quickly.
In reaching it’s decision, the order first discusses some proposals that it was rejecting – some for the time being. For radio broadcasters, the most important of the rejected thoughts was the extension of this rule to radio. The Commission noted that there were proposals pending and ripe for action as part of the Localism proceeding (which we summarized here), to extend the online public file obligations to radio. In this week’s order, the FCC decided that it was not yet ready to apply these rules to radio. The Commission noted that there might need to be differences in the rules for radio (implying that, at least partially, there might be resource issues making it difficult for radio broadcasters to comply with these rules), and also finding that it would be better to see how an online file works for TV before extending the rule to radio. But, from the statements made in the Order, there is no question but that, at some point in the future, some form of the obligations that are proposed for TV will also be proposed for radio broadcasters.
Also, it is important to note that the FCC’s Localism proceeding is not dead yet. While this week’s Order stems from the FCC’s Future of Media Report (renamed the Report on the Information Needs of Communities), and that report recommended that the Localism proceeding be terminated, this Order did not do that. The Commission notes its plans to start a new proceeding designed to force broadcasters to complete a more comprehensive report on their public interest programming. That proceeding may be where the looming Localism proposals are finally dealt with. Statements at the meeting and passages in the Order make clear that the examination of the public interest obligations for broadcasters will begin with a Notice of Inquiry, which is a most preliminary stage of an FCC proceeding (which would be followed by a Notice of Proposed Rulemaking after the inquiry comments are reviewed) and then an Order. So final resolution of these issues seem to be far down the road. If that is the case, will the Localism proposals stay on the table until the Order in this new proceeding is adopted? It is certainly unclear from the Commission’s statements thus far.