FCC Proposes Online Public File For Radio, Part II

What Are They thinking?

In the last article, I warned that the FCC is poised to require radio stations to post their ('formerly "local") public files to the FCC online public file Internet portal. Taking this step would expose over 15,000 local radio stations, some licensed to very small, rural communities with similarly very small staffs.

Previous comments filed by broadcaster associations, including those I filed for the Missouri and California Broadcasters Associations (click here) sought a cautious approach from the FCC. There are significant resource differences between radio and television stations, particularly in smaller markets, and 15,000 more stations having to file in the FCC hosted system is likely to place substantial additional pressure on an online database that is already strained by only a third that number of television stations.

Adding your voice to the FCC record may be even more important now. The NAB has recently announced that will no longer pursue its court appeal of the FCC's online requirement, given the proposal to make the requirement equally applicable to cable and satellite. A spokesperson for the Campaign Legal Center was recently quoted acknowledging that small "mom and pop" radio stations could find it difficult to immediately upload files. Andy Schwartzman, a longtime public interest advocate, claims that small market stations should not have problems because "everybody has Internet access at this point," presumably referring to high-speed broadband.

In a nod to radio's concerns, the Commission has offered to consider some proposals it believes might moderate the impact on radio. It requested comments on whether to exempt stations with small staffs or whether facilitating private web hosting services that could assist a stations with a limited staff or other resources would make the program more palatable to the industry.

Private Web Hosting Services

Citing its commitment to facilitate the availability and use of web hosting services in the television online public file Report & Order (cite) the Commission again proposes to reduce the burden on small stations by the use of private web hosting services, presuming that will allow for greater station efficiencies. However, the Commission has yet to demonstrate that it can deliver on that promise -- even for television.

At least one such service has labored for over two years to establish a reliable interface between its service and the FCC online file database. Despite a substantial cash investment, many meetings and many attempts to resolve all the obstacles, the FCC has not yet demonstrated that it can deliver. Each time the FCC has tried to close the technology gap, its staff has been diverted to a higher priority task, or ran out of budget. Until that task is completed, tested and proven, it would be folly and possibly disastrous, for the FCC to rely on third-party hosting interfaces as the solution for small or rural radio broadcasters. Small stations would be confronted with additional cost without assurance that the services could deliver to the FCC, and subjected to increased scrutiny from not only the FCC's own Enforcement Bureau, but also public interest groups from around the country and even the around the world, leading to a drain on their time and resources that could reduce locally-produced and relevant programming services.

Our experience with television confirms that placing station public files online produces increased regulatory scrutiny. That past programming glitches in the FCC system have improperly tagged some broadcasters with a notice of violation is indisputable, although it is claimed that they have all been remedied. Given these additional burdens on small-market stations, or any station with a very small staff, the Commission cannot rely on third-party services until it demonstrates a failsafe, efficient interface for their use.

Staggered Filing

The Commission seeks comment on whether staggered filing deadlines would avoid network traffic jams and how to organize online files to facilitate uploading and review.

Currently, all stations are required to post a variety of materials to the public file on the same deadline. (See Local Public Files) Since adoption of a uniform ownership report filing deadline in 2009, all 17,648 broadcasting stations must file a new ownership report by October 1st every two years. To accommodate this change in 2009, the commission had to postpose the requirement several times. Four times a year, all stations must file their detailed issues and programs statements. This task is unique to every station, even those that are group-owned. The issues/ programs files can be voluminous and could result in last-minute filings by thousands of licensees seeking to access the system simultaneously to meet the deadline. Staggered filing dates might be needed, but that would also require changes in other rule sections.

Currently, there is no specified file structure for radio stations; only that the public file contains the required information. For television, the Commission created a structured folder and subfolder system to require uniform public file contents. That is liable to require significant work for many radio stations, accustomed to keeping their files in their own "esoteric" way. The FCC also created and "populated" specific political file folders for many (but not all) political races and then permitted stations to create additional subfolders and subcategories for specific candidates and also other organizing structures. This led to some serious issues for third-party hosting services trying to comply with the FCC's uploading system. Moreover, this uniform approach, when it works, makes it easier for the public and for time buyers to compare station rates.

Station Size:

The Commission flatly rejected many commenters' arguments that placing radio station's public files online would do nothing for the local community and benefit only non-local advocacy groups, especially straining small stations' limited resources. However, in an attempt to ease the transition, the Commission proposes to start only with larger-market commercial stations in with five or more full-time employees (similar to the EEO rule exemption) and postpone the requirement for very small radio stations. It also asks for comments on whether it should permanently exempt smaller market stations or stations with few employees.

So, there's a lot to think about in these times of change in radio broadcasting. It's important to share your views with the Commission on this important new topic. Let the Commission know how this new rule, if adopted, will affect your station. Here's how to file.

How to file

Go the FCC's online Electronic Comment Filing System: http://apps.fcc.gov/ecfs/upload/display

In the blank field "Proceeding No." fill in 14-127.

Instructions on How to Submit Your Comments

A complete copy of the Notice of Proposed Rulemaking in MB Docket No. 14-127 is available on the FCC's website at: DA-14-1149A1.pdf . The deadline for filing comments will be 30 days after publication in the Federal Register, which is expected very soon. You can file at any time up to that deadline.

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.