NAB Seeks Delay in Public-File Order Appeal

Association and bureau staff had spoken about a waiver request made last year by a law firm with broadcast clients, which had sought forbearance from making TV stations include -- in the online public files at https://stations.fcc.gov -- paperwork from past licensee cycles where renewals hadn’t been granted, industry officials said. The informal discussions, which didn’t lead the association to file a waiver request of its own, dealt with a request by Fletcher Heald, an NAB lawyer said. The hope had been that the commission would exempt paperwork from eight-year license cycles where renewals had been sought by the TV stations but not granted by the agency likely because of holds over pending indecency complaints, industry officials including the NAB attorney said. A commission spokesman declined to comment.

Bureau staff had appeared inclined to grant the request, and may have begun work on drafting an order, but none had been finalized as of Tuesday afternoon and one doesn’t seem imminent, a lawyer representing TV stations opposed to public-file rules said. The commission last year, over the concerns of Commissioner Robert McDowell, said public files must go online, including the political files in them which McDowell had opposed putting on the agency’s website (CD April 30 p3). Stations that weren’t affiliated with the ABC, CBS, Fox and NBC networks in the top-50 markets have until next year to upload the political files, but must by Feb. 4 give the FCC all existing materials in their paper files to go online, a Dec. 11 commission public notice said (http://xrl.us/bobv77).

That coming requirement would mean older documents that don’t relate to new license renewal requests would need to be uploaded, even though they'd be of limited use to any viewer, industry lawyers said. NAB has been speaking to bureau staff about situations where stations without renewals for past cycles might have to put online documents about programming aired 16 years ago, the association lawyer said. “That’s a lot of stuff, and is not really an issue in a renewal.” Bureau staff, though not issuing an order yet, “certainly understood where we were coming from” in bringing that attention, the attorney said. It’s not “a sensible thing” to require such old documents go online, “to say that you've got to have 16 years of stuff, when you've already got to have eight years in the first place,” the lawyer said.

Quarterly lists on the types of local TV shows a licensee airs are among the types of paperwork a TV station would need to give the commission by Feb. 4 for online posting, said co-Director Angela Campbell of Georgetown University’s Institute for Public Representation, which backed last year’s public-file order. “License terms are awfully long, there’s no question about that,” she said of broadcasters’ concerns. But stations’ programming information should be publicly available, even if more than 10 years old, and so public interest groups might have some concerns with what NAB backs, she said. With two weeks until the deadline, “if you haven’t gotten started on this yet, now would be a good time,” Fletcher Heald advised broadcasters in a blog post Monday (http://xrl.us/bobv82). “Any shortcomings will be rule violations for which the Commission could issue fines” for information not uploaded by Feb. 4, the post said. “And anybody, anywhere, anytime will be in a position to identify such violations and bring them to the FCC’s attention."

At the U.S. Court of Appeals for the D.C. Circuit, NAB’s motion to hold its case in abeyance, meanwhile, said the commission has two ways to address broadcaster concerns about the burdens of putting public files online. The motion cited TV stations’ petition for reconsideration of the order, which has an alternative proposal for not disclosing the cost of each campaign ad in political files while instead requiring campaign spending to be aggregated by licensee. The petition for recon “raises the possibility that NAB may not need to continue pursuing this case,” the motion said. Because the agency hasn’t acted on the recon petition nor indicated when it expects to, “holding this case in abeyance would provide the FCC additional time to act on the petition for reconsideration before this Court undertakes its review,” the association said (http://xrl.us/bobv97). It also cited the notice and comment cycle the order said would be opened by July 1 for feedback on how making the Big Four stations in top-50 markets post political files worked. Like the recon petition, that comment cycle “provides an opportunity for interested parties to suggest improvements to the current rule and for the FCC to take action that may make proceeding with this case unnecessary,” the motion said. It said the FCC, federal government and intervenors in the case took no position on the request.

Some public-interest groups would rather the commission fix any problems on recon and not in court, Campbell said. “If the NAB is willing to hold off on their appeal and possibly dismiss it, or at least wait until the rules are in some sort of more solid form, that makes sense to us. There is no reason to necessarily litigate it now.” Friday’s motion was interpreted by Policy Director Matt Wood of public-file order backer Free Press as “looking at their membership, their priorities, and maybe seeing there was no catastrophe” from the political file uploads by the top stations during the 2012 elections, he said. Aggregating data as broadcasters seek, so they don’t have to disclose lowest unit changes, “doesn’t really show you who’s buying what, and when,” he said of LUC-based ads. “We're in favor of standardization to a point, but if the return on that is abstract information,” that might be a bad tradeoff for public-interest groups, he said. “We just want to make sure it’s not completely abstract.”