FCC Proposes Online Public File for Radio

Exactly one week before Christmas, the FCC announced its holiday headache gift to radio broadcasters. Not that it wasn't expected. The Commission had announced its intentions to apply the online public file rule to radio in a Public Notice on August 7th, 2014. Seeking comments on a Petition from the Campaign Legal Center, Common Cause and the Sunlight Foundation to expand the rule to apply to cable and satellite TV, the Media Bureau added its own request for comment to apply it to radio licensees.

The Proposed Rule

On December 18th, the Commission released a Notice of Proposed Rulemaking ("NPRM") by which it proposed to extend to radio the requirement currently imposed on television stations to maintain their local public files online, on the FCC servers. Similar to the plan used for television, the online public file requirement would begin with commercial stations in the top 50 Nielson (formerly Arbitron) markets with five or more full-time employees. Two years later, the rule would apply to all other stations with five or more full-time employees. It seeks comment on permanently exempting noncommercial stations as well as commercial stations with fewer than five full-time employees. There is no proposal to change the contents of the file, although broadcasters will be required to identify the location of a station's main studio, its telephone number and an email address for a designated contact person.

The Commission will itself upload to the station's online file all required public file contents that have already been filed electronically in one of the FCC electronic filing databases, such as DDBS or ULS. No action will be required of the licensee. These materials include ownership reports, EEO reports, applications, authorizations, contour maps, the Public and Broadcasting manual, and investigative requests from the FCC. Other materials, such as time brokerage agreements, quarterly issues-programs lists and responses to FCC investigations, would have to be uploaded. The Commission implies that it will use a drag-and-drop utility as it does for television and that uploaded documents will be converted to PDF with a search capability provided by its system. Letters and emails from the public could continue to be maintained at the main studio and social media comments to the station will continue to be exempt from the public file requirement.

The Commission recognizes that the political file requires a special process. As it did with television, radio licensees will not be required to upload their existing political files and may choose to keep them in the local public file for the remainder of the two-year retention requirement. They would have to upload new political file documents on a going-forward basis from the effective date of the new rules.

The Rationale

The Commission believes this change to online pubic files is a modernization that is "plain common sense" because:

"The Internet and the spread of broadband infrastructure have transformed the way society accesses information today. It is no longer reasonable to require the public to incur the substantial expense and inconvenience of traveling to a station or headquarters office to review the public file and make paper copies when a centralized, online file would permit review with a quick and essentially costless Internet search."

The Commission views the Internet to be an effective, low-cost means of maintaining contact with, and distributing information to, your listeners, providing 24-hour access from any location, without requiring a station visit. For most small market and rural stations, whose service contours may not reach far beyond their county line, it may be a bit surprising that this access is needed. Moreover, while this may seem only a small procedural change for large radio groups that might have the staff and technology to manage the task, it is not hard to see that it could prove more challenging for many small or rural broadcasters. Many stations may not have the staff or talent to comply with the rigors of the FCC online filing database portal. There are stations in some rural areas without internet access satisfactory to meet the data uploading capabilities required for rule compliance.

The Special Case For Radio

Compared to television, radio presents far more serious small business concerns. With over 15,000 radio stations nationwide, there are nearly 10 times more radio stations to feed data into the system. To cite examples in two states for which I filed comments to the Public Notice, in both Missouri and California there are nearly 10 times more radio than television stations. In each, about half are located where there are, on average, less than two stations per town and only a few more per county.

An analysis of BIA data also disclosed that many radio stations are operated with very small staffs; some as few as two or three, with many responsibilities that once were staffed separately now being multi-tasked onto a single employee. For many small-market stations, a single person holds more than one of the following positions, or one or more of the following positions is listed as unfilled: Traffic Director, Sales Manager, Program Director, General Manager. Their average revenue is only between 10% to 20% of stations in rated markets. In such small markets with limited staff, aggravated by the difficulties of attracting new talent to small market radio stations, a new staffing requirement could be extremely onerous and distracting to the primary responsibility of providing responsive local programming. See the Missouri and California comments for more detail here. See all comments here.

Coming Up Next

Stay tuned. The next article will cover the FCC's proposals on how to reduce the burden on radio stations in the hope that its proposals for radio online public files will allow the system to work properly. After considering the Commission's online public file proposal for radio, the potential problems and issues and the FCC's attempts to deal with them, you may want to let the FCC know your views. I'll provide you with instructions on how to file your comments at the FCC -- online, of course.

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.