• FCC Launches New Inquiry on Enhanced TV Programming Disclosure
  • November 25, 2011
  • Law Firm: Lerman Senter PLLC - Washington Office
  • On Monday, November 14, 2011, the Federal Communications Commission released its anticipated Notice of Inquiry seeking to re-adopt a standardized quarterly public interest television programming disclosure form in lieu of the current quarterly issues/programs list requirement. Just last month, the Commission abandoned its previous effort to collect such information in the face of complaints that its initial approach (Form 355) was vague, overly complex, and unduly burdensome to broadcasters.

    Comments must be filed within 30 days after notice is given in the Federal Register, which has not yet occurred. We anticipate filing comments on behalf of several broadcasters, as we did regarding the now withdrawn initial proposal.

    The Commission has reiterated its prior conclusion that adopting a standardized reporting system for TV public interest programming will allow easier public review and facilitate a more active public role in assisting broadcasters to meet their public interest programming obligations. While it disclaims any intent to impose quantitative or category-specific requirements, the Commission nonetheless tips its hand that the new form is intended as much for evaluation as for information, noting that the standardized approach will make broadcasters “more accountable” to the public and allow public interest researchers “to compare stations’ performances,” and even suggesting that licensees might want the ability to add comments “to discuss any mitigating factors” relating to programming.

    The new form would be completed through the FCC website and would be included in each station’s online public file hosted by the FCC. Both commercial and non-commercial television licensees would be required to comply. The Commission also indicates that it will eventually require radio stations to replace their issues/programs lists with a standardized form as well, but does not propose to do so in the current proceeding.

    Reporting Period

    In its initial incarnation, the programming reporting form would have required the inclusion of all programming aired during a quarter. The Commission now agrees that this would be “unduly burdensome,” and proposes instead to use a sampling approach, requiring quarterly reports based on one or two composite weeks, each composed of seven randomly-selected days, with each day of the week represented. The Public Interest, Public Airwaves Coalition ("PIPAC"), a driving force behind the new reporting requirement, has suggested selecting two composite weeks each quarter, but the Commission asks whether a single such week would be sufficient. The Commission seeks comment on how to implement random selection of dates, including how and when to notify broadcasters of the dates selected. PIPAC has proposed that “broadcasters not be given advance notice of the reporting dates to prevent broadcasters from changing their programming and thereby ‘gaming the system’” and suggests that a selected date not be revealed until the day after it passes. An alternative to the composite week approach would be to select one or more complete weeks during the quarter about which a programming report would be required.

    PIPAC argues that a composite or specific week is insufficient to identify election-related programming, and proposes that licensees be required to disclose all such programming that airs during the lowest unit charge period 45 days before a primary election and 60 days before a general election. The Commission asks whether a shorter pre-election period would be sufficient, and also whether there should be any other exceptions to the composite week reporting schedule.

    With respect to the programming subject to the report, the Commission asks whether it is sufficient to report on a program basis, or whether, at least in some cases, each program segment should be entered. It asks whether broadcasters currently retain sufficient programming information to allow reporting by program segment, and also whether it would need to define “program segment” for purposes of the new rule.

    Reporting Categories

    In place of the dizzying array of inconsistent and overlapping categories of public interest programming included in the FCC’s original Form 355, the Commission now proposes only three categories of such programming, and indicates that each program should be listed under just one of them. The three categories are: (1) Local News; (2) Local Civic/Governmental Affairs; and (3) Local Electoral Affairs. For each, the Commission provides a PIPAC-crafted definition, and asks whether it is appropriate or should be modified. These definitions are as follows:

    • Local News: “Programming that is locally produced and reports on issues about, or pertaining to, a licensee’s local community of license.”

    • Local Civic/Governmental Affairs: “Broadcasts of interviews with or statements by elected or appointed officials and relevant policy experts on issues of importance to the community, government meetings, legislative sessions, conferences featuring elected officials, and substantive discussions of civic issues of interest to local communities or groups.”

    • Local Electoral Affairs: “Candidate-centered discourse focusing on the local, state and United States Congressional races for offices to be elected by a constituency within the licensee’s broadcast area,” including “broadcasts of candidate debates, interviews, or statements, as well as substantive discussions of ballot measures that will be put before the voters in a forthcoming election.”

    Notably, although the “Local News” definition appears to be the shortest and simplest of the three, it is also flawed, with its focus solely on “issues.” News programs are driven largely by daily events, rather than specific issues. Moreover, locally-produced news programming that does deal with issues cannot reasonably be limited to issues that are “about, or pertaining to,” the community of license. Issues pertaining to the nation as a whole have relevance in every community. The remaining two proposed “definitions” are not definitions at all, but attempts to list by example the various types of programming encompassed, without providing an overall meaning.

    Other Proposed Reporting Requirements

    The Commission also seeks comment on the following proposals for inclusion of additional information.

    Closed Captioning. PIPAC proposes that each filer disclose whether each program or segment included on the form is closed captioned, and if so, the type of captioning.

    Video Description. The Commission seeks comment on whether and to what extent broadcasters should be required to identify which programs include video description.

    Emergency Accessibility Complaints. PIPAC proposes that a station disclose in its report the number of emergency accessibility complaints that it has received during the quarter.

    Sponsorship Identification. PIPAC proposes that each filer disclose whether the material reported is subject to the requirements of the Commission’s sponsorship identification rules, and if it is, that it identify the sponsoring entity.

    Shared Services Agreements. PIPAC also proposes that reporting stations disclose whether the material reported is the product of a local marketing agreement, local news service, or shared service agreement between the licensee and another broadcast station or daily newspaper located within the licensee’s market, and if any programming is the product of such an arrangement, to identify the relevant agreement in the licensee’s online public file. Notably, not all of the types of agreements identified here are currently subject to the public file rule, and the expansion of the scope of the contract filing requirement remains subject to the FCC’s related online TV public file proceeding.

    Other Issues. The Commission asks whether broadcasters should also have the option of disclosing additional programming not covered by the primary categories that is nonetheless targeted to serving community interests and needs. The Commission also asks whether it should include a “comments” field, as noted above, that would allow broadcasters to highlight additional information, including “mitigating factors” (e.g., weather-related or technical issues that might have prevented programming from airing on a selected reporting date) that would presumably offset a concern that the showing might otherwise be deemed “deficient” in some manner when reviewed in connection with a license renewal assessment or otherwise.