By: David Oxenford, Wilkinson Barker Knauer LLP,
Many radio stations need to be considering the FCC requirement that their public inspection file be made available online in a system hosted by the FCC. From the calls I have received in the last few days, it appears that, even though the FCC adopted the requirements two years ago (see our post here), and station groups with 5 or more employees in the Top 50 markets had to covert to the online file soon thereafter, many smaller stations are only now realizing that the March 1 mandatory conversion date for all stations – commercial and noncommercial – is fast approaching.
We recently conducted a series of seminars for state broadcast associations on the online public file obligation. See the Michigan webinar here. The slides from the last of these, conducted for the Iowa and Indiana Broadcasters, are available here. In addition to those slides which provide an outline of the online public file obligations, there are many resources on the FCC’s own website about the public file. To summarize some of the last minute issues being faced by broadcasters, the Indiana Broadcasters posed 5 questions about the requirements – and our answers are shared below.
- If a station is starting from ‘square one’ in preparing for the Online Public File requirement that kicks in for all radio stations on March 1, what are the first couple of steps one should do immediately?
With the March 1 deadline fast approaching for having your online file up and activated , stations should now be actively uploading the required material to the FCC file, and making sure that the information automatically uploaded by the FCC is accurate. We have already heard reports that the FCC system for hosting the online public file is running slowly, especially during business hours, making uploads difficult. That is likely to get even worse as we get closer to the March 1 deadline. So if a station has not started to get its online public file ready, it needs to do so immediately.For a station that has done nothing, it needs to start by registering to get a password for the FCC’s site that hosts the file. A station first needs to go to the “Owner Sign In” page here. Using the station’s FCC Registration Number (FRN) and password will allow it to log in and set up a passcode for the public file. If a station doesn’t know its FRN or has forgotten its password, it can call the FCC’s FRN Help Line: 877-480-3201 (Mon.-Fri. 8 a.m.-6 p.m. ET). Once the station has its passcode, a station uses that passcode to log into the FCC-hosted platform, here, and start uploading its documents.
The FCC has a good set of Frequently Asked Questions about the online public file process here.
- Are all radio stations now going to be required to use an online Public File?The online public inspection file is required for all stations, commercial and noncommercial, unless the station has obtained a waiver. Few if any waivers have been granted. Unless you are a very small station with real provable issues with Internet access, I would not expect waivers at this point, so late in the game.
- What are the most important uploading obligations?The FCC has already uploaded many of the required documents, and those documents should be found already in the folders when you first log into the FCC’s hosting platform. The information already uploaded by the FCC includes pending applications, ownership reports, a contour map showing the stations coverage, The Public and Broadcasting procedure manual, and copies of the station’s license and renewal authorization. Look these over carefully and determine which of the FCC-uploaded documents need to be made available to the public. The FCC will upload all applications filed for your station going back many years – when only pending applications need to be made visible to the public. So you need to select which ones will be made available to the public by keeping them in the “On” position and toggling the rest to the “Off” position so that the public can’t see them. We have also heard reports that there have been instances where the FCC has not uploaded the most recent license into the authorization folder, so you should check to make sure that what has been uploaded reflects accurately your current operations.
A station will have two sets of documents that will take a significant amount of time to manually upload. Any station that is part of a Station Employment Unit with 5 or more full-time employees needs to upload all of its Annual EEO Public Inspection File Reports, back to the start of the current renewal term for the state in which the station is located. There will likely be 4-6 of these reports, depending on the license term for the state in which the station is located.
In addition, stations need to upload all of their Quarterly Issues Programs lists going back to the start of the license term. All stations, commercial and noncommercial, should have these reports. These are the only documents that the FCC requires to show how your station met the needs and interests of its community of license. As all of the Quarterly Issues Programs lists going back to the start of the license term need to be uploaded, you are looking at uploading more than 20 of these quarterly reports. Because there are so many, these will likely take more time than anything else to upload.
Unlike the EEO Reports and Quarterly Issues Programs lists referenced above, the FCC has said that you only need to upload “new” political file documents (i.e. those created after the file goes live to the public). If you decide not to upload the old political documents, you must maintain all “old” political file documents in a paper public inspection file for two years from the date that the document was created. If you are thinking of no longer maintaining a main studio open during normal business hours, you may want to consider uploading all political documents now so you no longer need to maintain a paper file available to local residents.
There are other documents commonly to be included in the file that station employees will need to manually upload. These include licensee organizational documents, contracts relating to ownership rights (e.g. options, pledges or voting proxies), and other contracts that restrict a licensee’s control over station operations (all of which are supposed to be listed on your ownership report) either need to be uploaded or included on a list of documents available for inspection upon request (with information as to how to contact someone at the station that can provide the documents within 7 days). Time brokerage or joint sales agreements need to be uploaded. And, for noncommercial stations, a list of donors contributing to support the broadcast of a specific program (as opposed to general station donors) is to be included in the public file.
The FCC has published a complete list of all of the documents that you need to have in your file here.
- After uploading the documents, how long do I need to keep copies of these files? Retention periods vary for the various documents that need to be in the file. As noted above, EEO Public Inspection File Reports and Quarterly Issues Programs lists for the entire license term need to remain in the file until your next license renewal is granted. Applications need to be in the public file only until the application is granted and the grant is final (no longer subject to any appeal or review). Only the most recent ownership report needs to be in the file (as a reminder, the next biennial ownership report is due by March 2, 2018). Documents in the political file need to be maintained for two years from the date of their creation. Certain contracts and agreements (like time brokerage agreements) need to be maintained for the life of the agreement. So review the FCC’s rules on the retention of documents. In the slide deck we prepared here, many of the retention periods are provided.
- What advantages and disadvantages of the online file?
The obvious advantage is that you no longer have to maintain a paper file and give physical access to your studio to anyone who wants to see the file. Of course, by putting the file online, you make the contents of the file available for review by anyone, anywhere, any time. So public interest groups and the FCC itself can use it to assess your compliance – including looking at electronic date stamps on documents to determine whether documents were timely included in the file. Late filings could become a real issue for documents like Quarterly Issues Programs lists which were rarely, if ever, reviewed by the FCC when they were kept in the paper public file. Remember, on the next renewal application, you will likely be asked to confirm that you placed all required materials in the public file on time. The FCC and the public will now know whether your response is accurate or not.
The March 1 deadline is fast approaching. If you have not already completed the process and made your file available to the public, start working on that file soon. It will take longer than you think, so don’t run out of time to comply.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
There are no additional costs for the call; the advice is free as part of your MAB membership.