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Good And Bad In FCC's New Disclosure Plan

Tomorrow, the FCC will proffer a new batch of disclosure rules to replace the ones it passed in 2007 but hasn’t been enforcing. Like the 2007 rules, the proposed ones call for more detailed programming reports from stations so the FCC can better assess whether they are meeting public interest obligations. But the new ones are not as demanding as the 2007 ones. Stations would still have to put their public files online and, unlike before, include political advertising records showing the purchases of time by candidates, PACs and other political advocacy groups.
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At its open meeting tomorrow, the FCC, led by Chairman Julius Genachowski, is expected to throw out its dormant 2007 "enhanced disclosure" rules that raised the ire of broadcasters, but it's also expected to propose a new set of disclosure obligations that broadcasters may find equally upsetting.

Like the 2007 rules, the proposed ones call for more detailed reports from stations on the programming they air so that the FCC can better assess whether they are meeting their obligation to serve the public interest. But the proposed disclosures are not as demanding as the 2007 ones.

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At the same time, the FCC is proposing to modify and expand the requirement in the 2007 rules that stations place their FCC-mandated public files online for easier access.

Most important, stations would have to include in the online files political advertising records showing the purchases of time by candidates, PACs and other political advocacy groups. The agency is also proposing that the online files be kept on an FCC-hosted website.

The proposals would advance through two parallel proceedings — the programming disclosures in a Notice of Inquiry and the online requirements in a Further Notice of Proposed Rulemaking.

Requiring just one more round of comments and reply comments, the Further Notice could be brought to a vote on final rules early next year.

Backers of the 2007 rules and other advocates for greater transparency for broadcast licensees are backing the FCC's new approach, having been assured by Genachowski’s office that both proceedings will be on a fast track.

"We were told this is a high priority and the FCC will move it quickly without any undue delay," says Corie Wright, attorney for Free Press. "It will be a matter of months, not years."

Free Press and other advocacy groups formed the  Public Interest, Public Airwaves Coalition (PIPAC) which is considered the driving force behind the new proposals.

In 2007, the FCC, led by former Chairman Kevin Martin, adopted the "enhanced disclosure’’ rules, which included a mandate that stations prepare elaborate quarterly reports on all the programming they aired in a variety of "public interest" and local programming categories.

The reports on Form 355 would have superseded the relatively spare quarterly issues/program lists that stations now must maintain.

The 2007 rules also require stations to post their public files on their own websites or on the website of their state broadcast association.

It was all too much for broadcasters, who complained about the paperwork burden and petitioned the FCC for reconsideration and challenged the rules in the U.S. Court of Appeals in Washington. The rules also got hung up in the Office of Management and Budget, which routinely assesses the burden new federal regulations will have on businesses.

Without OMB approval, the FCC never enforced the rules. "The FCC  recognized that its form was far too complicated and that it would have forced stations to go out and hire someone just to fill out the form,” says David Oxenford, an attorney with Davis Wright Tremaine.

Tomorrow's actions are the FCC response to the petitions for reconsideration.

The FCC’s actions are motivated in part by the  agency’s "Report on the Information Needs of Communities" released in June. That report concluded that the agency should eliminate the "enhanced disclosure’’ rules, but also urged it to move ahead with getting public files online.

It said that a new streamlined, Web-based form that would require broadcasters to provide programming information based on a composite or sample week might be a good substitute.

Picking up on the recommendation, PIPAC has been pushing for a new program reporting system requiring information for two composite weeks per quarter selected by the FCC. The reports would be tailored so that they could be easily posted, compiled and accessed online.

According to PIPAC FCC filings, the reports would disclose what stations are airing in "core" categories, including "local news, local civic/governmental affairs [and] local electoral affairs."

Under current FCC rules, stations must maintain a mass of information in their public file and make it accessible to anybody who walks in the door.

The required information includes FCC applications, FCC authorization and signal contour maps, ownership reports and related material, EEO reports, letters and email from the public, FCC children’s programming reports, commercial limits certification, FCC consumer education quarterly report, the quarterly issues/programs lists, DTV transition reports, a political file, joint sales agreements, time brokerage agreements and a station’s must-carry or retransmission consent election.

"For a long time public interest groups have been pushing to get better access to these files," says Free Press's Wright. "Given the convenience of the Internet and its relative ubiquity, we think it is high time it was put in an online form so that people can see it without having to take off work."

While delighted that the FCC is scrapping the old rules, broadcasters are not particularly happy with how the new ones are shaping up.

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