FCC Releases Order on Online Public Inspection File – Answering Questions about Compliance with Radio’s New Obligations

Last week, we wrote about the FCC’s decision to require that radio stations move their public inspection files online.  Stations with 5 or more full-time employees that are located in Top 50 markets need to make the transition to the online file later this year once the FCC gets its new rules approved by the Office of Management and Budget following a Paperwork Reduction Act review.  Other radio stations will need to come into compliance, unless they get a waiver of the new rules, by March 1, 2018.  Our initial article about the decision was based on the FCC’s press release on the decision and comments made at the FCC meeting at which the obligation was adopted.  The FCC has now released the full-text of the decision (available here) and that order contains many new nuggets of information about the new obligations about which stations need to be aware.

The text of the decision does a good job of summarizing the obligations of radio broadcaster’s current public inspection file obligations (as well as those of the other entities that were also addressed by the new rule – cable systems, DBS operators, and Sirius XM for their satellite radio service).  For each of these services, the FCC addressed a number of issues.  Some of the radio questions addressed by the order include those set forth below.What are the transition deadlines?:  As stated above, stations with 5 or more full-time employees in the Top 50 markets will need to begin the transition as soon as the rules are effective.  Upon the effective date, all new political documents will need to be uploaded into the file.  Other new documents that are created (e.g. new issues programs lists) are also to be uploaded right away.  But old documents in the file that need to be uploaded (e.g. issues programs lists back to the beginning of the renewal period) can be uploaded over a 6 month transition period.  Political documents that pre-date the effective date of the rule are exempt from the requirement that they be uploaded in the 6 months after the effective date – they will never need to be uploaded.  They will be retained for their two year retention period in a paper file.

All other stations will need to comply with the new rules by March 1, 2018.  There is no transition period on those documents – they must be uploaded by that date.  The decision stated that, as these stations have two years to come into compliance, there is no need for another 6 month grace period.

How quickly must political documents be uploaded?  The FCC reiterates statements made in other contexts, stating that such documents need to be uploaded “immediately” given the time-sensitive nature of many political broadcasting obligations.

Which stations are covered by the initial transition deadline?  The decision makes clear that any Top 50 market station that is part of an EEO Employment Unit with 5 or more full-time employees must comply with the new rules at some point later this year.  The requirement is thus not based on how many employees a particular station has, but how many employees are in the ownership cluster in a given market.  The Commission does not, however, give a definition of which stations are in a Top 50 market.  It is our understanding that the Commission intends that stations that are considered to be in a market for multiple ownership purposes are in that market for purposes of the rules (essentially those that are considered by Nielsen to be “above the line” or “home” to the market).  Perhaps this will be stated definitively by the FCC in some subsequent release.

Are waivers of requirements available?  The FCC noted that some small stations – especially in rural areas where Internet access is limited – may have trouble in complying with the new rules.  Thus, the Commission will entertain waiver requests – but any waiver that is granted will only be for a limited period of time – no more than two years, at which time the station will either need to comply or obtain another waiver.

Will a station need to upload letters from the public?  When we wrote about the FCC’s public notice, we noted that the FCC had not addressed whether letters from the public about station operations, which do not have to be uploaded to a TV station’s online public file, would have to be uploaded to a radio station’s file.  The full text of the decision made clear that there is no need to upload those letters to the online public file.  As is the case for TV stations, these letters will continue to be maintained in a paper file at the station’s main studio.  Note that only commercial stations have an obligation to maintain these letters as part of their public file.

What other documents will need to be uploaded?  In addition to political documents, the FCC lists many of the other documents that need to be in the public file for radio stations.  While the FCC will automatically upload most documents filed at the FCC (e.g. ownership reports, assignment or transfer applications, construction permit applications, FCC licenses, etc.), there are certain documents that stations need to maintain that are not filed at the FCC and which must be maintained in the public file.  These include Quarterly Issues Programs Lists, Annual Public Inspection File Reports, copies of Time Brokerage or Joint Sales Agreements, a list of any “citizens agreements” (which very few stations have), information about certain public notices (e.g. about the filing of applications at the FCC), and information regarding FCC investigations.

Do donor lists for noncommercial stations need to be uploaded?  Noncommercial stations have to maintain in their public file a list of donors to specific programs (as opposed to those who merely give donations to fund the operation of the station as a whole).  While there was some concern that the online publication of those names could discourage donations, the FCC generally rejected those concerns, indicating that the public interest benefits of the disclosure of the sponsorship of programs on noncommercial stations outweighed any concerns.  However, the FCC did recognize that there were certain programs that could potentially be controversial, where the disclosure of the donors could lead to harassment or other harms.  In such cases, waiver requests will be entertained, and no disclosure needs to be made while such waiver requests are pending.

Are there any new Public File Obligations?  The FCC imposed one new public file obligation for radio broadcasters – the location of their main studio needs to be disclosed in the online public file.

How about License Applications for AM stations which are filed on paper?  The FCC recognized that certain FCC Form 302-AM license applications are still filed on paper.  When these applications are filed on paper, the licensee can either manually upload the application to the online public file or maintain a paper file with the license application until such time as the FCC has upgraded their filing system so as to allow the electronic filing of these documents.

Can a station transition to the Online File early?  We have actually had some inquiries from station operators, asking if they can transition to the online public file early – and not wait until 2018.  The FCC says yes, but once you do, you are all in.  If you make the decision to transition to the online public file, you need to then upload all required documents to that file so the public is not confused as to where documents will be.

What publicity needs to be given about the existence of the Online Public File?  The FCC requires that any station that has a website maintain a link to the FCC-hosted online public file on the first page of the station’s website.

Do Annual EEO Public Inspection File Reports still need to be posted on a station’s website?  Given the online public file, some have asked if the Annual EEO Public Inspection File Report needs to be posted on a station’s own website, as that report will already be available online.  The FCC says that a station must either post the report on the station’s own website, or post a link on the station website to the report in the FCC’s Online Public File (but that link must go directly to the EEO Report, not just to the station’s online public file generally).

Have there been any changes to the FCC technical system hosting of the public file?  Some people had been concerned about the FCC’s technical system’s capacity to host the online public files of so many new entities.  In the Order, the FCC notes that it has moved to a new cloud storage system for the online public files, which should facilitate easier access both by the public and by stations.  In addition, a licensee can simultaneously post a document to multiple stations’ files, allowing groups owners to post information (e.g. a list of the documents relating to ownership and control of the licensee) to all of their stations at once.

Do Back-Up Files need to be maintained in case there are issues with the FCC Online File?  The FCC requires that broadcasters maintain some sort of back-up for the political file in case there are glitches that prevent access to the FCC’s online public file, given the time-sensitivity of some political requests (e.g. equal opportunities claims that need to be made within 7 days of the competing candidate’s use of a station).  This can either be done on paper or electronically – the FCC allowing for stations to “mirror” the FCC website to make a copy that can be retained electronically by the station.  There is no requirement for back-up of the other documents, but the FCC notes that, in case of some major failure in the FCC’s system, stations will need to re-load documents previously placed in the file.  Thus, the mirroring option may be advisable for all portions of the file just to be sure that back-up documents are available to be easily uploaded should there be some serious issue with the FCC site.

Will the FCC remove documents that no longer need to be retained in the file?  No, the FCC will automatically upload applications, but won’t remove them from the public file when retention periods have expired.  Nor will the FCC’s system automatically remove other documents when their retention period ends (e.g. it won’t remove political documents after two years nor will it remove Quarterly Issues Programs lists after the next renewal application is granted and has become final).  Stations need to remove documents when their retention periods expire.  The FCC rules specify retention periods – and some of those periods are set out in my presentation on the public file, which can be assessed thorough this article.

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These are but some of the issues addressed by the FCC’s order on the online public file.  Before the file goes live, we anticipate many seminars and additional information about these requirements – both from the FCC and from industry associations.  So stations should familiarize themselves with the obligations set out in the Commission’s order, and be on the alert for other educational opportunities, so that they can be on top of their obligations as soon as they are required.  As we have written in the past, the online public file gives the FCC and others the opportunity to review your station documents from the comfort of their own home or office – without any need to visit your station.  So missing documents or other instances of noncompliance can be discovered quickly.  Be ready to comply to avoid any of these unexpected complaints.