Lack of FCC Upload System for Public File Documents Causes Concern
Broadcasters worry about a repeat of problems with an ownership form when the FCC starts a system for all TV stations to upload to fcc.gov documents on paper in public files at main studios, their lawyers told us Thursday. They said the absence of a system to accept documents listing how much campaign ads sell for to politicians around the time of elections, quarterly lists of informational and educational programs, and other paperwork -- less than a month before online public files must start being created -- is causing some angst. The Media Bureau seems to be rushing to complete work on the forthcoming system, which could lead to another instance of glitches with a new paperwork collection system, as occurred for Form 323 biennial ownership reports, broadcast lawyers said.
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The NAB wants the FCC to stay April’s order approved 2-1 for TV stations to by early 2013 put all current information in their public files on fcc.gov that’s not related to campaign ads or correspondence from viewers. ABC, CBS, Fox and NBC affiliates in the 50 largest markets must starting Aug. 2 put new political file information online, but have nowhere to put it. If the commission doesn’t grant the stay request, the NAB is expected by industry lawyers to ask the U.S. Court of Appeals for the D.C. Circuit to stay implementation. The D.C. Circuit is the venue the NAB wants to hear its challenge filed last month to the public-file rules.
There’s a decent chance the D.C. Circuit would agree to a stay, if the FCC doesn’t and if the NAB requests one, broadcast lawyers not involved in the litigation said. They said the association makes a good case that if not granted by the FCC the order would cause irreparable harm, and that it has a good chance of succeeding at the court. Spokespeople for the Media Bureau that wrote the order and for the commission declined to comment.
"The stay petition raises very significant issues about the merits of the commission’s order,” said lawyer Jack Goodman, who represents TV stations. Paul Cicelski of Pillsbury thinks “the changes are decent for a stay with the D.C. Circuit, assuming one is filed,” he said. “But the petition itself is anyone’s guess, depending on the panel” of judges hearing the challenge and other issues related to NAB’s challenge of the order, he said of the lawsuit. The D.C. Circuit rarely grants stays, other lawyers said. The NAB’s petition for an FCC stay pending judicial review, though, does make a case for irreparable harm from the order and shows a likelihood of success on the merits of the court case, two factors the D.C. Circuit considers in stay requests, the attorneys said.
The order didn’t follow the Bipartisan Campaign Reform Act, which makes the Federal Election Commission and not the FCC the place for Internet disclosures of political expenditures, the NAB’s request posted Thursday in FCC docket 00-168 said (http://xrl.us/bnfcyh). It cited concerns raised by Commissioner Robert McDowell’s partial dissent of the order that it could raise antitrust issues because such pricing information would be disclosed (CD April 30 p3). “The Commission has no authority to create exceptions to the antitrust laws,” the NAB said: “The Commission’s decision is particularly vulnerable because the agency rejected an alternative approach that would largely avoid the anticompetitive concerns” where a group of TV stations that eventually came to include the association and networks would disclose total candidate spending on ads at each station but not what each spot sold for.
"Absent a stay, NAB’s members will be required to post the rates they charge for specific advertising spots immediately to the Internet,” the group said. “Non-broadcast competitors will be able to determine in a matter of seconds exactly what prices local broadcast stations are charging for specific spots.” TV stations “will have no means of recouping this lost revenue from the Commission or any other source,” the NAB said. “Broadcasters will be unable to recoup the substantial costs of complying with Order.” Stations are already making sure they have the necessary equipment like a scanner so they can upload documents to fcc.gov if the legal challenges don’t succeed, lawyers said.
With Office of Management and Budget approval for three years of information collection requirements in the order, it’s effective Aug. 2, said a commission notice in the Federal Register Tuesday (CD July 5 p15). Broadcaster “concern is going to become greater, given the fact that this was all just put in the Federal Register,” Cicelski said of the uploading requirements. FCC officials had said April 27 when the order was adopted that the online uploading mechanism would soon be available, leading broadcast lawyers to wonder when that will happen.
"The Commission will soon schedule user testing and educational webinars for the online public file to ensure that the uploading of materials by broadcasters can be conducted smoothly and efficiently,” a public notice late Tuesday said (http://xrl.us/bnfc8m). That was the only guidance from the agency. “The launch seems a little bit quick” of the database, Cicelski said. “They're just asking for trouble with the system, rushing it up this quickly.” Agency officials said hosting the information in the cloud means there shouldn’t be problems uploading documents to it, as were experienced with Form 323 several years ago. Industry lawyers noted that such problems delayed the start of a database to upload information on the ownership of all radio and TV stations. “No one knows how easy or how difficult it will be to upload things to the right place,” Goodman said of the public file. “Given the fact that it’s more than two months after the commission adopted the rules, and it’s mid-summer when many people are on vacation, it will be hard to ensure that everyone complies by Aug. 2.”