More FCC TV Program Disclosure Impractical, Unconstitutional, Some Broadcasters Say

Public broadcasters sought an exemption from the rules, while nonprofits that back disclosure said all types of TV stations ought to be covered. An exemption “is the best action for the Commission to ultimately adopt in this proceeding,” said the Association of Public TV Stations, Corporation for Public Broadcasting and PBS. They sought a “a safe harbor for CPB-qualified noncommercial educational television licensees” who give to the commission their station activities benchmarking studies and station activity surveys. “Public Television Licensees provide unique public interest programming that simply is not available in a comparable form on commercial television,” the three groups said. “Making these surveys (with sensitive financial information redacted) publicly available through the Commission’s website would provide members of the public with ready access to this information.”

NPR also sought exclusion from any reporting rules for any “noncommercial educational station that can document its public accessibility and accountability.” The Internet, social media and other technology render enhanced disclosure reporting “an ineffective means of promoting station accessibility and accountability,” the public-radio programmer said. “Stations are increasingly using the Internet and social media tools because of the explosive growth in the use of those tools by the public. By contrast, a quarterly enhanced disclosure report, whether filed in paper form or posted to the Commission’s web site, is unlikely to serve any meaningful engagement function."

There’s no need to exclude any broadcaster from the reporting requirements, seven nonprofits said jointly. The Public Internet Public Airways Coalition “agrees with the Commission that the goals underlying this proceeding -- facilitating access to information on how licensees are serving the public interest and local communities, making broadcasters more accountable to the public, and providing the public with a better mechanism for reviewing broadcasters’ public interest programming -- apply equally to commercial and non-commercial licensees,” it said. “The streamlined reporting requirements are not burdensome for broadcasters, whether commercial or noncommercial. While many NCE stations provide significant amounts of this type of programming ... others do not."

Putting shows into various categories doesn’t further communications between stations and audiences as the commission seeks, the NAB said. “To the contrary, an approach that relies on ‘one size fits all’ program content labels may unintentionally misrepresent or under-report what stations are doing to serve the public interest and distort the dialog.” The rules “would raise serious statutory and constitutional questions, particularly considering the lack of corresponding public benefits,” the association said. “Even under the intermediate scrutiny level of First Amendment review, the proposal for content-based reporting in which stations categorize their programming using government-devised labels is very likely to fall short.”

The notice of inquiry seeks to bring back Form 355, which never should have been adopted in the first place and was a radical departure from the quarterly program/issues list (QPI) requirement, said state broadcast associations. “This proceeding has the clear ring of ‘deja vu all over again,'” the Named State Broadcasters Associations said. “The Commission should reject the notion that the number of minutes a particular type of program may have aired on a station is a more appropriate measure of a broadcast station’s service in the public interest than the information provided in the QPI Lists.”

LIN Media said it would take at least an hour for each half-hour of programming to be reviewed by a staffer who would then report on the length of segments and other detailed information. “LIN believes that this ratio is conservative, but even so, the numbers we provide” in the filing “are still staggering,” said the company, with 34 stations. The state associations said the commission runs the “high risk” that it will “find itself not just at the edge of a First Amendment cliff, but in a catastrophic plunge that intertwines the Commission and its staff for the indefinite future in the journalistic news judgments of television stations nationwide.”

Broadcasters should disclose the accessibility of programming, four disabilities groups said in support of the public interest coalition’s proposal. The data would include whether the sample, composite weeks of programming that broadcasters would report on each quarter were captioned, if not why, and the total number of complaints about the accessibility of emergency programming, Telecom for the Deaf and Hard of Hearing, Hearing Loss Association of America, Association of Late-Deafened Adults and Cerebral Palsy and Deaf Organization said. “Requiring these disclosures is an easy, low-cost method to help ensure that broadcasters are satisfying their accessibility obligations and gather valuable empirical data for setting important accessibility policy.”

Seven broadcast companies made an alternative proposal to the public interest coalition’s reporting categories. They listed three categories: News, local news plus other shows of interest to local communities, and electoral affairs. The agency should “measure any proposals for new programming disclosure requirements” against whether they're “clear,” give “meaningful” information to viewers and “whether the disclosure obligations are practical and not burdensome,” said companies including Belo Corp., Gannett and the Washington Post Co.’s TV unit.