FCC Seen Sticking With Plan to Make All TV Stations Put Political Ad Files Online as of July 1

The most likely course come July 1 is that all stations not already subject to the rule will need to upload materials to the FCC, said broadcast and public interest group officials. That would make them like their big-city Big Four broadcast network brethren, which as of Aug. 2, 2012, had to move political-ad files from broadcaster studios on paper to be kept electronically by the FCC. Stations that are not ABC, CBS, Fox or NBC affiliates in top-50 U.S. markets didn’t need to immediately comply with an April 2012 order adopted along party lines requiring that public files, which include political files, migrate online.

Some public interest officials had hoped before the public notice that the bureau might require enhanced online search in what stations provide to the FCC, while broadcast lawyers had hoped the agency might ratchet back the requirement to reflect what the industry compromised on, interviews found. The industry shortly before the FCC meeting where the online public file rule was adopted had proposed that instead of uploading all materials, stations aggregate information, which researchers and public interest groups said wouldn’t give them enough specificity. The most likely course now for the bureau is that it won’t change the rule’s implementation in July, though future changes are possible, said those on all sides of the issue. A bureau spokeswoman declined to comment.

Since the non-top 50 market/non-Big Four stations already were “required to use the online public file for documents other than the political file since August 2, 2012, we do not expect them to have difficulty determining how to upload new political file documents to the online file,” said the PN (http://fcc.us/1hxVWvM). “The Commission has not acted upon” a June public notice (http://bit.ly/1emOiV7) asking about public-interest plans to expand ad posting requirements and broadcast plans to scale them back “or in any way altered the online political file requirement or the July 1, 2014 deadline for compliance by television stations that are currently exempt,” said the new notice. “The requirement as codified -- the July 1, 2014 compliance deadline for stations not subject to the 2012 deadline -- still stands."

'Huge Win’ Seen

"This is a huge win if it happens,” said Kathy Kiely, managing editor of the Sunlight Foundation, of the FCC’s sticking with the online posting requirement. Sunlight reports about political ads, trains others to do so and is a member of a coalition of public interest groups that opposed broadcasters on the idea of aggregating political file information online. That coalition, which includes the Campaign Legal Center, Free Press and other groups, wanted the FCC to require broadcasters to give the agency machine-readable data, to make it easier for groups like those to search the files. “We have found the record to be very useful” even “with extreme limitations on what you can do with this information,” because much of the data comes in PDFs and isn’t machine-readable, said Kiely. “To compute the data, you have to enter it by hand” into a computer program, she added.

The PN likely means “small market guys have to comply, and should not be expecting any relief” from posting, said broadcast lawyer David Oxenford of Wilkinson Barker, who said his clients are concerned about the burdens of the coming requirement. If the bureau had changes in the works, he doubts they would “bother with this public notice,” he said. “It would be highly unlikely that anything changes between now and July. Might there be changes in the future? I think that’s a possibility.” He found the PN “interesting in that it reminds broadcasters of their obligations, without taking into account the inquiry begun by the Commission last June,” Oxenford wrote on his blog (http://bit.ly/1joq5lD). “The implication is that the FCC does not intend to do anything with the June inquiry any time soon.” It appears “no relief from the FCC can be expected,” he wrote.

TV station materials are particularly helpful in gauging how much is being spent early in the 2014 races, because such spending need not be reported to the Federal Election Commission until closer to elections, or if it features ads explicitly opposing or supporting candidates, said fans of disclosure including Kiely. They said Senate races with a lot of early spending include states without any top-50 markets in Alaska, Arkansas, Iowa, Louisiana, Montana and West Virginia. Kantar Media Ad Intelligence upped its estimate last week by 8.3 percent to $2.6 billion for what it expects for spending on broadcast-TV political ads this year, and the figure could be as high as $2.8 billion (CD April 3 p23).

"There are some big markets that are seeing a lot of spending early, but there are many smaller ones that are seeing the same level of activity” in terms of number of spots, said Kantar Senior Vice President Elizabeth Wilner, who helps run the firm’s campaign analysis group. “There are a lot of smaller markets that are seeing intense activity” and “one of the reasons is they are cheaper,” she added. Kantar doesn’t use political ad files to derive its estimates of ad spending, but instead uses an automatic system monitoring every ad on TV in all U.S. markets, said Wilner. “We look at the FCC website from time to time, just to see what people are paying, to see the rates” for individual spots, she said.

No Pre-NAB Gift

The almost three months advance notice of the rules is “a hopelessly long lead time,” said broadcast lawyer Harry Cole of Fletcher Heald. He sees the PN as consistent with the standard operating procedure of the FCC under Chairman Tom Wheeler of proving industry notification, such as the bureau’s industry guidance on TV station sharing deals released a few weeks before the FCC March 31 cracked down on such deals. (See separate report below in this issue.) “Back in the day, the Friday before NAB started was when the packages appeared under the tree” from the FCC, before officials like former Mass Media Bureau Chief Roy Stewart would speak to the convention, said Cole. “Now, we're lucky if they don’t do anything at all.” Wheeler is to speak to the Las Vegas convention Tuesday.

Free Press is “glad” and “not surprised by” the bureau public notice, said Policy Director Matt Wood. “It’s what they said they were going to do, but I'm glad to see no backtacking.” Since “there’s a two-year phase-in period” of the 2012 rules, “someone must have thought it wise to keep the conversation going, rather than wait til July 1,” he said.

Both “large and small markets” have competitive races that are expected to be “attractive targets for campaigns” this year, said Erika Franklin Fowler, assistant professor of government at Wesleyan University and co-director of the Wesleyan Media Project that tracks such spending. “Competitiveness of the race is one of the biggest drivers of” number of ads, she added. “Interested citizens should have the ability to more easily access information on who is trying to influence elections in real-time from all markets in the U.S.”

Gannett’s top broadcasting executive was optimistic the FCC might not stick with expanding the political ad posting rules, he told us Friday. “That’s the kind of stuff we can work together on,” when it comes to mechanics of how to release on the Web what’s in the political-ad file, said Gannett Broadcasting President David Lougee. “We have tried to come up with helpful ideas on that, some of which the public interest groups” didn’t accept, he said. Broadcasters remain willing to be productive stakeholders on the issue, he said after a speech where he complained about heavy regulation of his industry by the FCC (CD April 7 p5). (jmake@warren-news.com)