Clyburn, Genachowski Don’t Back Down From Making TV Stations Report Political Ad Rates

In a compromise of sorts, Genachowski agreed to issue a public notice in a year’s time, the commissioners and bureau staffers said. They said the notice will seek comment on the disclosure of the lowest ad rate at the about 200 Big Four network affiliates in the top 50 U.S. markets that must initially put new information from the paper political file online. All other 1,783 U.S. full-power TV stations will have, as expected (CD April 11 p3), until July 2014 to begin putting new information on political-ad files on fcc.gov, the meeting was told.

The administration is likely to grant approval of the rules so they take effect in time for the presidential election, Media Bureau Chief Bill Lake told reporters. Forecasts are for $3.2 billion to be spent on broadcast political ads in this election cycle, bureau lawyer Holly Saurer told the meeting. It’s “ironic” to “censor from online access information that Congress explicitly required to be made public,” since doing so would be “more burdensome on broadcasters” who'd have to keep a paper and electronic version of political files, Genachowski said. “Businesses and broadcasters are moving from paper to digital every day,” and there are “very modest” costs for them to make the move now to online filing, he said.

The public notice wasn’t enough for broadcasters or for McDowell. He dissented on the portion of the order requiring LUC reporting online. He said he shares industry’s concerns that not keeping that data just in stations’ paper files could be anticompetitive because anyone with Internet access could see rates, not just studio visitors during business hours. In the days before the commissioner meeting, McDowell proposed to colleagues a “compromise” that most of the public file go online other than the LUC, which would be subject of a public notice in a proceeding “which we would conclude very quickly,” he said: “Apparently I was less than persuasive,” as were “the good-faith compromise proposals put forth by broadcasters.” NAB, many members and the four biggest broadcast TV networks had proposed excluding the LUC from online reports. NAB will seek guidance from its board over how to proceed, and options could include suing the FCC over the order or filing a petition asking the agency to reconsider it, a spokesman said.

McDowell can’t support disclosure of “sensitive pricing information,” which is neither “common sense” nor a requirement of the 1996 Telecom Act nor the 2002 Bipartisan Campaign Reform Act, he said. “The majority appears to discount the anticompetive effect that … forcing broadcasters to do what otherwise would be illegal” would have, a consequence he called “simply surreal.” Genachowski said he agreed with McDowell that the FCC members had “a very healthy dialog internally about this” but this couldn’t be among the 95 percent of votes where commissioners are unanimous. “Harmony 100 percent of the time” can’t happen, Clyburn said of the order she called “much discussed and hotly debated over the past month.”

Genachowski, Lake and others working for the chairman discussed the reasons they say it’s sound policy and law to require all but the correspondence from viewers in stations’ public files to go online, including LUCs. They contended it will cost broadcasters less over time to keep electronic records, costs to scan public-file documents will amount to hundreds of dollars per station and not the thousands of dollars or more that the industry worried about (CD Jan 25 p3), and U.S. law gives the FCC authority to require such disclosure, which the Supreme Court has acknowledged in ruling against an appeal of the 2002 legislation. A bevy of nonprofits that backed putting the entire political file online lauded the vote. McDowell voted for the rest of the order, which would, as expected (CD April 9 p5), also require within six months of the rules taking effect all existing documents the commission doesn’t already have in all but the correspondence and political files to be uploaded to fcc.gov. FCC Chief Data Officer Greg Elin confirmed the agency will host all public file documents in the cloud, as it’s doing with other documents.

The White House might not approve the political file requirement in the public file order, when the Office of Management and Budget reviews whether the rules comport with the Paperwork Reduction Act (PRA), McDowell said. He cited the OMB under this administration and that of President George W. Bush having “indicated” it wouldn’t give PRA okay to a 2007 order that would have required stations to report on the types of local programming they aired. The current order “may mark time in PRA purgatory” and the further proceeding McDowell sought “would allow the commission to conduct a cost-benefit analysis, which is surprisingly lacking here,” he said.

The public notice will let the FCC “learn” from the “first tranche” of stations required to post political ad rates online, Lake told reporters: “We think that PRA approval will not be a lengthy process.” With the bureau “working around the clock” on preparation for a voluntary incentive auction of TV stations’ spectrum, Genachowski said he’s not giving a time frame for when a successor to the never-implemented Form 355 will be ready. He said in October that the new form would be ready this spring (CD Oct 28 p7).