Issues/Programs Lists, Part II

In my last article I recommended that broadcasters begin reviewing their efforts for the next Issues/Programs Lists. This is an area that bears emphasis given the new FCC under Chairman Genachowski. A review of the FCC decisions on renewal applications and the fines that have been issued for failure to properly maintain and document the quarterly Issues/Programs Lists reveals that a surprising number of broadcasters are either entirely unaware of the Issues/Programs List requirement or have allowed the exigencies of other business to supersede the efforts required for total compliance.

Others, very much aware of the requirement, have the mistaken impression that all programming on the list must be locally produced. That is not required. What is required is that the list includes a brief narrative describing what issues were given significant treatment and the programming that provided this treatment. The description of the program must include the time, date, duration and title of each program in which the issue was treated. The burden is on the broadcaster to demonstrate that it has aired programming relevant to the pubic issues of importance it has identified. However, nothing in the rule, or any FCC report, order, or decision, speaks to where or how the program must be originated or produced. The Commission's concern is only in the result and not the process and has specifically said it is not concerned with how an applicant or broadcaster becomes aware of community issues so long as such issues are identified and adequate responsive programming is offered or proposed.

Contrary to popular misconceptions, nothing in the rules or FCC orders require that the programming be locally produced. In fact, the station may use any programming, wherever acquired, so long as the program addresses the local issue it has ascertained. For example, the issue may be domestic abuse. The station could air a Radio Health Journal program addressing the issue of domestic abuse, how communities can deal with the issues, and where abused spouses can go for counseling and shelter. That program would provide important information that's responsive to the community issue.

The Commission's goal is that issues of importance to the community be discovered by the broadcaster and addressed in programming so that the "... informed public opinion, necessary to the functioning of a democracy, will be possible." When it adopted the Issues/Programs List requirement and discontinued formal ascertainment, the Commission gave great latitude to broadcasters on programming, saying the "...bedrock obligation contemplated by 'public interest' will be fulfilled with the least government intrusion and the most licensee flexibility. This flexibility allows broadcasters to address issues by virtually any means and can include for example, public affairs, public service announcements, editorials, free speech messages, community bulletin boards, and religious programming."

The standard for license renewal, therefore, is guided by a retrospective showing for the prior license term that the licensee addressed community issues with programming of whatever type or origin that, " . . . in its discretion and guided by the wants of its listenership, [the licensee] determined were appropriate to those issues."

As a last point, it bears emphasis that stations subject to local marketing or time brokerage agreements are nonetheless required still to conduct their issues assessment and assure that programs responsive to them are broadcast. This is a nondelegable licensee duty. Of course, the time broker can be the party that actually delivers the programming over the station, and appropriate provision for this compliance should be made a part of every local marketing or time brokerage agreement.

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.