Letters From the Public: Pai FCC Takes First Step on Broadcast Deregulation

Scott R. Flick
Attorney Scott Flick

It took a while to get to this point, but at the first public meeting of the Pai FCC, the Commission voted today to eliminate the requirement that stations maintain “Letters and Emails from the Public” in their public inspection files. As discussed below, that decision will have differing impacts on TV and radio stations, and even among radio stations.

When the FCC charged ahead to move television public inspection files online in 2012, there didn’t seem to be any upside for broadcasters, who objected loudly.  Those objections were primarily based upon the fact that the FCC had managed to find a way to expend even more of a broadcaster’s resources on the rarely-read file, requiring that it now also be uploaded to an online FCC database.  Uploading a public file is no small task, as an FCC review of TV public files in Baltimore in 2012 revealed that some contained more than 8,000 pages.  In response to those objections, the FCC announced when it adopted the change that it would automatically upload applications, kidvid reports, and other documents it had access to, reducing the number of documents stations would need to upload themselves.

After TV public files moved online in 2012 (accompanied by efforts thereafter to fix various database bugs and issues), the FCC began moving radio files online in 2016.  In both cases, the FCC concluded that it would not require, and in fact would prohibit, broadcasters from uploading the “Letters and Emails from the Public” portion of the file out of privacy concerns for the letter writers.  The result was to ensure that even after every other portion of the file moved online, stations would still have to maintain a physical public file at their main studio.  This meant that stations would have to continue to staff their stations so as to ensure that any visitor could be immediately shown the file during normal business hours, including lunch hours.  More importantly, it meant that at a time when media outlets are under increasing threats of violence, they can’t secure their studio doors, instead having to immediately invite in anyone who shows up and asks to see the public file.  In fact, the FCC’s rules actually prohibit stations from asking a visitor much more than their name and address, and allow stations to refuse access only “for a limited time during a period of violence or threat of violence.”  In short, online public files created more work for stations, while retaining all of the disadvantages of the physical public file.

When the FCC launched the proceeding to consider moving radio public files online, it asked for comment on whether such a requirement should be phased in over time based on the type of station.  Pillsbury filed comments on behalf of all 50 state broadcasters associations supporting a phased-in approach, but also noting that the best way of minimizing the drain on station resources while also encouraging stations to move online earlier than required would be to eliminate the requirement that letters and emails from the public be retained in the public file.  Eliminating that requirement, which is already of dubious value in the age of social media, would allow public files to move completely online, eliminating the need for a physical public file and the associated headaches and security risks for stations.  There would be an upside for stations moving their public files online, and perhaps a big enough one that some stations might actually welcome the move.

While it surprised no one when the Wheeler FCC proceeded to adopt an online public file requirement for radio, we were encouraged that the adopting order did phase-in the requirement and suggest the FCC would revisit the Letters and Emails from the Public requirement at a later date.  Not long thereafter, the FCC adopted a Notice of Proposed Rule Making in May 2016 proposing to eliminate the requirement. After comments were filed, the proceeding went silent at the FCC, and it appeared that it might have become yet another victim of the internal partisan conflicts at the FCC that made adopting even simple changes challenging.  The FCC ultimately managed at least some bipartisanship on the item, with Chairman Wheeler announcing it as the sole item on the January meeting agenda—a meeting scheduled to be held after his departure from the Commission.  That made it the first agenda item voted on at a public meeting of the Pai FCC.

So what is the immediate impact?  Well, first of all, the change won’t go into effect immediately.  Typically, it takes about two months after the text of an adopted order appears in the Federal Register for a new rule to go into effect, and if any aspect of it requires approval of the Office of Management and Budget because it affects information collection by the government, it can take considerably longer.  Once it goes into effect, stations will no longer have to retain Letters and Emails from the Public in their public file.  But whether a station can secure the front door of its studio will depend on whether all other portions of the file are already online.  That is not a problem for TV stations, as they have been required to have all other portions of their public file online for a while now.  Radio stations, on the other hand, have only recently begun to move their public files online, with commercial stations that are located in the top 50 markets and which have five or more full-time employees having to upload all documents except for the political file by December 24, 2016.  Because such stations have only had to upload their political file documents on a going-forward basis since June 24, 2016, unless such a station elects to also voluntarily upload all of its last two years of political documents (the political file retention period), it cannot eliminate its physical public file until June 24, 2018, at which point the station will have uploaded on a going-forward basis two years of political file documents.

All other radio stations, including noncommercial stations, are not required to upload their public file documents until March 1, 2018, and again, that excludes political file documents, which only must be uploaded on a going-forward basis beginning on that date.  As a result, radio stations in this “Second Wave” won’t have all of their public file documents (including political file documents) online until March 1, 2020.  Consequently, these stations won’t get the benefit of eliminating their physical public file until 2020 unless they elect to upload all public file documents, including the political file, earlier than that.

Of course, even once the rule change goes into effect, stations should still review their letters and emails from the public for two reasons.  First, it’s just good policy—and arguably a requirement of each licensee’s obligation to regularly ascertain the needs and interests of its community—to examine the content of such correspondence for the suggestions and concerns of the public.  Indeed, some of our broadcast clients insist on responding to each and every letter, knowing that it is the most effective way of diffusing a problem before it becomes a larger issue at license renewal time.

Second, for TV licensees, it’s long been required by Section 308 of the Communication Act.  That provision was amended in 1996 to add the following language to the statute:

Each applicant for the renewal of a commercial or noncommercial television license shall attach as an exhibit to the application a summary of written comments and suggestions received from the public and maintained by the licensee (in accordance with Commission regulations) that comment on the applicant’s programming, if any, and that are characterized by the commentor as constituting violent programming.

As a result, television licensees have had to review letters and emails from the public for any assertions that the station’s programming is violent, and attach a summary of that correspondence to their license renewal applications, since 1996.  When this language was added to the statute, the FCC changed its license renewal application form to include a question requiring TV applicants to attach a summary of public correspondence regarding claims of violent programming.

Of course, the lawyers among us are now looking a bit more closely at Section 308, and wondering if this provision has effectively been mooted by today’s action.  If stations are required to provide a summary of all violence-asserting correspondence that is “received from the public and maintained by the licensee (in accordance with Commission regulations),” there arguably is no such correspondence any more.  However, the FCC’s current license renewal form interprets Section 308 quite broadly, stating in the instructions to the form that the “Licensee certifies that no written comments or suggestions have been received from the public that comment on its station’s programming and characterize that programming as constituting violent programming.”

As we are currently between license renewal cycles, now would be the perfect time to revise the license renewal form to eliminate that question which, to be honest, was an effort by Congress to influence the programming choices made by broadcasters through license renewal intimidation.  Setting aside the First Amendment implications, in the age of Game of Thrones, Westworld, and infinite variations of Call of Duty, asking about claims of broadcast program violence seems downright quaint.