The countdown is on for all full-power radio stations to move their public inspection files online. The Federal Communications Commission has ordered all stations to shift to an online file on the FCC’s searchable portal website by March 1. It’s the last wave of stations to make the switch. Television stations began posting their public files online in 2012 and radio stations in the top 50 markets followed in 2016.
For the final group converting over to the FCC’s web portal, the largest headache has been technical. “The single biggest question that we are getting isn’t what do I upload or anything along the traditional lines, it’s I can’t get the system to work—and as a result people can’t get even started in the process and it’s been incredibly frustrating,” said Fletcher Heald & Hildreth attorney Scott Flick on a recent webinar hosted by several state broadcast associations. It’s a good reason for stations not to put off the process until the last minute.
The FCC did help stations make the leap when it determined that the volume of filings— its analysis showed an average of 8,000 pages in the public files of Baltimore TV stations—could overwhelm some broadcasters. So the FCC volunteered to supply some of the documents that it already had access to in an electronic format on behalf of a station. That includes such things as station authorizations, applications, contour maps, ownership reports, EEO forms, the broadcasting manual, and some materials related to any FCC investigations into complaints filed against the station.
“They’ve done a pretty good job of uploading a lot of these materials and it will certainly take some of the burden off of some of you in terms of how much material you have to upload but what they haven’t taken off of you is the burden of making sure that your public file is complete,” Flick said. He recommends stations still run through their checklist to make sure the FCC has supplied all the needed materials. “If they say they will upload something and don’t and your public file is missing a document, that is your problem, not their problem,” Flick said.
One danger for stations after they make the switch to the online file is getting out of the habit of making sure all the documents are filled out and placed in their folders, said Fellow Fletcher Heald & Hildreth attorney Lauren Lynch Flick. “The initial process of getting everything uploaded and everything is clicking along, it’s easy to get complacent because the FCC is uploading so many things,” she said.
With uploaded documents carrying a timestamp she said it also becomes more difficult to hide the fact when a required document isn’t placed in the file for a day or two after its deadline, especially when it has been so rare for someone to ask to see the paperwork. Lauren Lynch Flick recommends stations label any document that’s been revised as an amendment. That will allow whoever is put in charge of filling out license renewal forms in the future to easily determine if the station complied with the FCC’s deadlines.
Lauren Lynch Flick also pointed out that there can be too many filings in a public file. The FCC only requires a station keep its public file “orderly” and the agency has said it won’t fine a broadcaster for having one that’s too cluttered. But she said it could mean the FCC won’t be able to dig through it all to find a document that’s required. “It is a station’s responsibility to remove unnecessary items,” Flick said.
Public Files Now In a 24/7 World
As any general manager can attest, there’s hardly a stampede of listeners asking to see a station’s public file. Beyond campaign staffers asking to view a political file during election season, most broadcasters say it’s not uncommon to count requests on one hand during an entire license term. That’s brought a level of ease that the switch to an online public file will chip away at.
“Not only is it available worldwide at all times, you have no way of knowing if someone is looking at your file,” Scott Flick said. He said the closure and consolidation of the FCC’s field offices means the odds that an inspector will show up on a station’s door step to look for technical violations has “dropped off a little” bit, but 24-hour access to public files also has an impact. “The jeopardy for your public inspection file has increased incredibly,” he predicted.
Scott Flick said he’s already had situations where FCC staffers have illustrated they’re rooting through public files looking for specific documents—something that rarely happened in the past. “There is a lot more Enforcement Bureau personnel in Washington than there are scattered around the country and those folks can sit there and peruse your public inspection file all day long—and they do,” Scott Flick said. For stations with missing documents, that means it’ll be harder to hide paperwork mistakes. It could also result in higher legal costs if the FCC fires off a letter of investigation if they can’t find a specific filing.
Tougher Enforcement Likely Ahead
Theoretically any document missing from a public file, from a contour map to a political file, could result in a fine of $10,000 or more. Scott Flick said the FCC has signaled that it’s more willing to slap stations with the base fine today than in the past. “In the old days they used to be a little softer-hearted towards smaller and noncommercial stations, but we don’t see that as much anymore,” he said. “But they have been giving $10,000 and up fines to all kinds of broadcasters, even some student-run stations have gotten some fairly large fines. So more than ever you want your public inspection file to be absolutely perfect, because all of the world can see it.”
That may come as a surprise to some broadcasters who see FCC chief Ajit Pai as the most pro-radio chairman at the Commission in a generation. But as it has repealed many burdensome rules and teed up others for elimination, FCC staffers have warned broadcasters that stepped-up enforcement action is a price to pay. “They’ve taken the position that there are less rules to comply with so they are going to be much harsher about you violating one of the rules that remains,” Scott Flick said.
He noted just before the main studio rules were relaxed last month the FCC sanctioned a station for violating the rule. “Don’t be fooled by the feeling that we are in a deregulatory era and therefore this is becoming less important,” he said. “Odds are pretty good that we are going to be seeing larger public inspection file fines coming down the road.”