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The Public File: It’s not just for the public any more

When the FCC first proposed requiring television broadcasters to place their public file online, licensees responded with concern about the potential increased labor requirement to meet the demand from public interest groups and political candidates.  Making the information more freely available outside the local market could also lead to regulatory mischief, they argued.  With the exception of the recently revealed check fraud problem, that concern has not materialized, at least not yet. 

Now a more troubling result has occurred, capable of producing even greater anxiety:  more frequent examination of the television station’s public file by the FCC staff itself.  Prior to posting in the FCC’s online database, a visit to the station was required to examine the public file.  Now that the public file of all television stations must be uploaded to the FCC’s own online database, the files are easily and freely available to the FCC staff for routine evaluation and determination of whether all required postings have been made on time and with sufficient detail to satisfy the station’s regulatory obligations.

An example occurred this month.  Unlike other low power television stations, Class A stations have the same public file requirements as full-power television stations, and in addition must provide information to detail their continued Class A qualification for frequency protection.  These requirements include documenting specific minimum operating hours and program origination requirements as well as other additional rule compliance applicable only to Class As.  In a new development, some Class As have received letters from the Video Division Deputy Chief indicating that their online public files have been examined and found deficient.  This is particularly distressing to Class As, which enjoy protected status, because the FCC has been on a campaign to decertify as many Class A TV stations as possible whenever they can show that a station has not met its full eligibility requirements.  This will return the station to unprotected status and therefore make its channel fair game in the television broadband auction. 

The Commission’s examination appears to be focused on assuring that the required issues/programs lists for the entire license term are posted with sufficient program content documentation to demonstrate that the station is continuing to meet its Class A eligibility requirements.  Additionally, the letter asks for a demonstration that the station has (1) broadcast the minimum of eighteen hours per day, (2) broadcast an average of at least three hours per week of locally produced programming each quarter, and (3) complied with all applicable Part 73 Operating Rules.

While this is of particular concern for Class A television stations which could lose their protected status as well as incur fines with a combined base forfeiture of $13,000, all broadcasters should take note:  continued diligence to make sure your local public file is up to date, including properly documented issues/programs lists, is critically important, and is becoming more important now than ever.  Radio may still be next.

Article courtesy of Gregg P. Skall, Womble Carlyle Sandridge & Rice LLP
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