Social Media and the Public File

Womble Carlyle Sandridge & Rice PLLC

It has become clear to broadcasters, both radio and television, that their media have become interactive. With increasing success, broadcasters are interweaving tools from the Internet into their overall service and brand in the community. This evolution is no longer confined to websites - with the increasing popularity of social media, it has become nearly imperative that broadcasters venture into interactive media further, establish their presence in social media like Facebook and Twitter. These newer platforms already are producing significant volumes of interaction with traditional broadcast stations. That's a good thing for a station's profile, but what are their implications for FCC regulation?

The Commission's rules require that all written comments and suggestions received from the public regarding operation of the station, including electronic mail messages, be placed in the station's public file and retained for a period of three years. The rules allow an exception only where the writer has requested that the communication not be made public or when the licensee believes that it should be excluded from public inspection because of the nature of its content, such as with a defamatory or obscene letter.

By their very nature, Facebook and Twitter encourage an enormous volume of communication to the station, mostly all of which relates to its operation or programming. Indeed, that is the purpose of social media: to generate written messages, often to express the writer's opinion. Section 73.3526 of the Commission's rules, the public file section, provides explicitly that written comments and suggestions received from the public include electronic mail messages transmitted via the Internet to station management or an e-mail address publicized by the station.

A specific exception is provided for personal e-mail messages sent to station employees. So the issue presented is whether messages sent on Facebook and "tweets" back to the station are "electronic mail messages" within the meaning and intent of the rule It's pretty well known that, at least so far, the FCC has disavowed regulation of the Internet. Yet the question remains: What effect does that regulatory attitude have on the commission's existing rule regarding e-mail to the station? The answer: unknown.

The issue has never been addressed by the staff, neither in the context of rulemaking, a complaint or adjudication. So, no one actually has an answer. To some it would seem that the burden imposed on the station by requiring that each of these messages be placed in the public file could go significantly beyond the intentions of the FCC rule. Indeed, it could be further argued that by mere virtue of being placed in a generally accessible Internet service such communications are, by nature, public anyway.

Thus, if a primary purpose of the public file rule is to make public communications dealing with the operations and programming of the station, that purpose might already be deemed achieved by the very nature of the communication. Others might argue, though, that it is available only to those who are members of that social media organization, a qualification that might be deemed insufficient to satisfy the FCC requirement for access by the "public."

Certainly it can be argued that these messages are indistinguishable from e-mail messages transmitted via the internet to station management and thus from the plain language of the rule fit the definition; that is, they are written messages that use the internet as the medium of transmission. On inquiry, FCC staff has suggested that closure might be had by requesting a declaratory ruling. The risk, or course, is that the result might be to require that all the Facebook messages and "tweets" be included in the public file, with the logistics nightmare that would entail. Yet without a ruling, broadcasters are left in that purgatory of being damned if you do and damned if you don't.

The safest course, it would seem, is to periodically print the comments received in social media sites and place them in the public file, which is tantamount to the worst-case scenario described above. But the sheer quantity of Facebook comments, "tweets" and similar communications can be huge and only promises to increase. Avoiding that burden and relying on the inherent public nature of social media might make sense and could offer a viable defense, but does not necessarily place them at the location where the FCC rules point the inquiring eyes of the public. Moreover, some might be missed -- and relying on Facebook and Twitter to store all their traffic for at least three years would be problematic to ensure meeting the retention period requirement.

Correspondence with Facebook officials was received courteously, but has not yet been responded to with an official capable of answering questions about the mechanics of the service. With some additional information about the possible Facebook utlities, this issue might go away easily ... or maybe not.

In the meanwhile, broadcasters might feel safest by making a good-faith effort to harvest all the social media comments about the station operations or programming and place them in the public file, while seeking a declaratory ruling from the FCC that this is an unwarranted and probably unintended burden on broadcasters that deserves and explicit exclusion from the public file rule.

NOTE: In an area so uncertain, it is always best to consult your own attorney before making a decision. There can always be serious consequences for FCC rule non-compliance and these decisions are best made with the advice of counsel.

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.