FCC Works Toward Making Most Of TV Files Online, a ‘Fix’ McDowell Slams

FCC Chairman Julius Genachowski may miss his spring deadline to come up with a successor to Form 355, a veteran TV station lawyer predicted. Commissioners voted in October to junk the document approved in 2007 but never implemented amid concerns the Office of Management and Budget would have blocked it if the information-gathering requirements were submitted by the FCC for OMB approval because the paperwork was too burdensome. Industry opposition to requiring a new form to replace the issues/programming lists all TV stations keep may slow work in the Media Bureau to issue a rulemaking notice and then an order on a new Form 355, a broadcast official said. All major broadcast TV networks opposed the NOI, in replies posted Friday in docket 11-189 (http://xrl.us/bmrnu).

A public file order, though, may be ready to circulate within the coming months, agency and industry officials predicted. They said the order is likely to require all or most parts of political files to be included in the online documents, over the objections of broadcasters who contend that’s too onerous because political ad buys change at the last minute during campaigns. A bureau spokeswoman declined to comment for this story.

FCC approval of the coming draft order would let the agency meet Genachowski’s commitment (CD Oct 28 p7) to require online public files by this spring. He also committed to spring completion of the Form 355 proceeding, after nonprofit groups had pushed for such a deadline. “More immediately,” McDowell said Friday, “the FCC may vote on a proposal to place television broadcasters’ public inspection files, including information regarding political ads, on a government-hosted website."

McDowell used a meeting of the Conservative Political Action Conference to criticize his agency for pursuing the Form 355 proceeding, especially for proposing to include political files. “When the FCC originally considered creating an online option for the public file requirement in 2007, we found that the burdens of placing the portions related to political ads online outweighed the benefits of posting this information,” McDowell said. “The Commission is now thinking about reversing its position from 2007 with little to no evidence that candidates, their representatives, or members of the local communities served by broadcasters were unable to access the required information."

McDowell asked “why” the FCC is trying to fix something that’s not broken, when some have estimated putting political files online could cost $15 million initially and as much as $140,000 per station yearly. NAB made the upfront-cost estimate, while Hearst TV made the annual prediction, in earlier filings in docket 00-168 (http://xrl.us/bmrnws). “There may be a marginal upside to placing political files online,” McDowell said. But he asked the commission to “resist imposing a burdensome requirement to upload all correspondence regarding political ad buys immediately, as the FCC has proposed.” That could mean updating the files several times daily shortly before an election, McDowell said. In addition to being a “jobs destroyer,” putting all information about what a station charges for ads could “result in anticompetitive practices” like price collusion, he said: That puts “the government’s thumb on the scale during advertising negotiations."

There are “constitutional consequences,” too, said McDowell, who partially concurred with October’s rulemaking notice on public files. He asked the commission to pause before issuing an order, saying “what’s the rush?” McDowell also pointed to the Supreme Court’s Citizens United ruling in 2010 loosening limits on corporate spending on political ads. The decision “reaffirmed that political speech is core protected speech under the First Amendment,” McDowell said. “Given this constitutional context why would the government want to have such information loaded onto its website to monitor in real time?"

It’s incorrect to say political files contain proprietary information, said a nonprofit that backs the online disclosure of all public files. “All of the information contained in the political file already must be made available to the public and has been available for decades, so it is not ‘competitively sensitive,'” said Free Press Senior Policy Counsel Corie Wright. “Anyone may currently inspect the political advertising rates currently contained in the political file -- including broadcaster competitors and members of the public -- though currently they can do so at great inconvenience to themselves because the files are only available at the station during business hours.” Wright read about McDowell’s comments, since she didn’t attend the CPAC conference. “If Commissioner McDowell believes that local broadcasters are inclined to collude on pricing, they can already do so by visiting the public files of their competitors,” she said.

Form 355 Comments

Sixteen professors backed the FCC’s quest to find a successor to Form 355, so all TV stations will be required to give the agency for online posting quarterly data on the types of local news and other programming they aired. Two replies from professors of law, media studies and other areas were posted Friday in docket 11-189 (http://xrl.us/bmrnuf).

Professors studying issues under the FCC’s purview need better data, they said. It should be available in one place in an electronic form that has standard fields and can be searched, the filings said. “This is a vitally important consideration given the extent to which the Commission regularly requests and relies upon the analyses conducted by the academic community,” said a group calling itself Scholars Endorsing Enhanced Disclosure. “The proposal under consideration by the Commission requires broadcasters to report on whether and how they utilize their digital multicast capabilities -- data that is otherwise unavailable to, or costly to obtain for, the public and the FCC.”

The filing was from Prof. Philip Napoli of Fordham University, who wrote a paper on retransmission consent for the American TV Alliance. University of Delaware Prof. Danilo Yanich, who with Napoli will speak Feb. 27 at an event organized by the alliance, also signed the filing (http://xrl.us/bmrn7r). Other signers are ex-Media Bureau lawyer Adam Candeub of Michigan State University, University of Pennsylvania Prof. Michael Delli Carpini and Matthew Hindman of George Washington University, who has done research for the FCC on media ownership.

Broadcasters block public access to program documentation because the stations consider it proprietary, a letter from five Howard University professors said. “Though some stations’ data are available from venders [sic], the data sets may be too expensive for researchers to afford without grants to underwrite the purchase.” The group insists “on a data file available at the FCC website which is in a software commonly used, that its fields of information be fully identified, and that it be easy to open and download.” That’s “essential if we are to overcome the present total mess that characterizes the ownership data now ‘available’ at the FCC’s website,” the filing said (http://xrl.us/bmrn79).

The Form 323 ownership data is in a form that’s hard to access, Howard Prof. Carolyn Byerly, who made the filing, told us. “It’s posted to the Web in a software that almost no one uses,” called Stata, that few have “access to,” she said. “The spreadsheets are divided up in strange ways into several data files, not unified in any useful way,” Byerly said. The Form 323 data are “not useable in their present state,” the filing said. The bureau spokeswoman declined to comment.

Network station owners have a hard time understanding why the FCC “now finds it necessary to propose the adoption of yet another government form to enable members of the public to determine whether their interests are being served, said a filing from CBS Corp., Disney’s ABC Owned TV Stations, News Corp.’s Fox TV Stations, Comcast’s NBC Owned TV Stations and Telemundo Stations, and Univision TV Group. “It is clear that the push for these burdensome new requirements comes from self-proclaimed ‘watchdog’ groups unhappy, for various reasons, with the content and quality of some broadcasters’ newscasts,” the companies said. “Notwithstanding the Notice’s disavowal of any such intent, there is no doubt the adoption of a ’standardize [sic] disclosure form’ would be driven by an intent to influence broadcasters’ editorial and journalistic decisions.” The new requirements wouldn’t pass constitutional, Paperwork Reduction Act or administrative law muster, the filing said.

"This is not the first time these issues have been considered,” a group of public broadcasters with 150 full-power stations said jointly. “The Commission had adopted a previous proposal for a standardized disclosure form in the Enhanced Disclosure proceeding, but it ultimately abandoned that plan upon the realization that the requirement was overly burdensome.” The public broadcasters backed filings from other pubcasters opposing applying the rules to their class of station. Such concerns “ignore both the important policymaking purposes of the proposed disclosures and the role that the disclosures would play in improving the ability of the Commission and the public to verify compliance with captioning and emergency accessibility rules,” said four groups representing the disabled including Telecom for the Deaf and Hard of Hearing. Seven public-interest groups also backed a successor to Form 355.