Phased-in Political File Requirements in FCC Draft Set for April 27 Vote

Stations not affiliated with the Big Four networks and all broadcasters in smaller markets would get two years after the new rules take effect to put political-ad files online, FCC officials said. They said all broadcasters won’t have to put online any files from before the rules take effect. Stations affiliated with ABC, CBS, Fox and NBC in the 50 largest U.S. designated market areas will have to give the commission political file information starting when the rules are effective, agency officials said.

Big Four affiliates in the top-50 DMAs accounted for 59 percent of all broadcast spot political announcements so far this election cycle, President Kenneth Goldstein of Kantar Media’s Campaign Media Analysis Group told Bureau Chief Bill Lake last week in response to his request for the data. That figure was 64 percent for the entire 2008 election cycle, Goldstein said in a letter to Lake posted in docket 00-168 Thursday (http://xrl.us/bm2xyz). “This burden is especially great for stations in small markets and for smaller stations in larger markets,” NAB said in a handout (http://xrl.us/bm2xy3) given to Lake and aides to Genachowski during a meeting last week attended by association President Gordon Smith and other executives. The handout included photos of the files of several NAB members, with NBC affiliate WGAL Lancaster, Pa., having a total public file that stood 79 inches tall and included a 30-inch political portion.

There must be quick turnaround of information reporting. How much campaign ads selling for the lowest unit charge cost during the period around elections and who buys them must be posted online in the same time frame the information must now go in public files, FCC officials said. That means turnaround time of about a day, an official said. Broadcasters had asked for more time because of what they said are the burdens of providing such information during periods around campaigns when the times ads air often change at the last minute. At least seven GOP senators including several members of the Senate Commerce Committee and Senate Minority Leader Mitch McConnell of Kentucky wrote Genachowski last week to express their concerns about political file rules. And McDowell seems likely to vote against the order, industry officials have said. FCC spokespeople had no comment.

Also circulated from the bureau in time for the April 27 meeting was an order allowing TV broadcasters to share spectrum and a rulemaking notice asking about letting noncommercial educational (NCE) stations air charity drives for other causes, FCC officials said. They said the order lets two stations that now each use 6 MHz share that amount of spectrum, as envisioned by a 2010 rulemaking notice on the subject. That notice said it was meant to work in conjunction with a voluntary incentive auction of TV channels, which, in late February, the FCC got congressional approval to hold. The bureau has been working on several rulemaking notices now that the incentive auction authority has been granted, agency and industry officials said.

Both the public file order and the NCE rulemaking notice follow up on ideas contained in last summer’s report on the media industry’s future written by Steve Waldman under Genachowski’s auspices. The notice asks about letting NCEs use 1 percent of their airtime on fundraising for third parties, and about requiring reporting of such drives to the commission, agency officials said. They said the proposal wouldn’t allow noncommercial stations to air ads.

Broadcasters and GOP senators said the FCC shouldn’t target stations to disclose sensitive information about the prices for campaign ads. Cable operators also have political files, for instance, that are not targeted in the order on circulation. The NAB said Smith and other association executives asked Lake and aides about “whether there were simple, practical ways to address broadcasters’ concern about the market-distorting effects of creating anonymous accessibility to the commercially sensitive information included in the political file."

McConnell views the “imposition of burdensome new rules on broadcasters” as “a rushed attempt by the agency to inject itself into the 2012 political season,” he wrote Genachowski Thursday. “Stations are understandably concerned that providing data on the availability and pricing of airtime will provide their competitors with real time access to proprietary information and could potentially lead to anticompetitive practices.” Online political-file rules seem part of the drive by the administration of President Barack Obama and “its allies” to “expand regulation of political speech in the wake” of 2010’s Citizens United Supreme Court decision loosening limits on campaign financing, McConnell wrote. The FCC’s rulemaking on the files is “a thinly veiled attempt to achieve indirectly what the administration has failed to achieve directly through the legislative process,” he added. Six senators led by Mike Lee of Utah and including Communications Subcommittee ranking member Jim DeMint of South Carolina also wrote Genachowski last week.

Groups seeking more broadcaster disclosure don’t want limits to the public-file rule, their representatives said. Free Press doesn’t think “any exemptions are warranted” and is “especially concerned about how the FCC is reportedly drawing these lines,” Senior Policy Director Corie Wright said. Since the station is not a Big-Four affiliate, “In Miami, Spanish speakers would not have online access to the political files of the local Univision station -- the top-ranked station in the market.” To Benton Foundation Chairman Charles Benton, NAB’s concerns are “utter nonsense,” he said. “Digging their heels in on this, despite the fact that this is inconvenient, is just not an excuse,” Benton, whose group has lobbied the FCC with Free Press and others through a coalition for public-file disclosure, said: “The broadcasters are using the public airwaves, and that’s what distinguishes them from their competition -- cable. As they're benefiting hugely from this avalanche of funding unleashed by Citizens United, it seems the least they can do is to fulfill their reporting obligations” on the Internet.

Broadcasters’ public file obligations won’t be expanded under the draft order, agency officials said. The rulemaking notice had proposed expanding what must go in public files when the information is put online. The notice proposed for the first time placing in files copies of shared services agreements (SSA) between other stations in the market and a list of sponsorship information that’s now disclosed on-air. The American Cable Association last week also asked the FCC to require public files to contain any SSA or other deal involving the negotiation among separately owned stations of retransmission consent agreements.