Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

Modernizing Broadcast Television Public File Availability.

Download Options

Released: April 27, 2012

Federal Communications Commission

FCC 12-44

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Standardized and Enhanced Disclosure
)
Requirements for Television Broadcast Licensee
)
MM Docket No. 00-168
Public Interest Obligations
)
)

Extension of the Filing Requirement
)
MM Docket No. 00-44
For Children’s Television Programming
)
Report (FCC Form 398)
)

SECOND REPORT AND ORDER

Adopted: April 27, 2012

Released: April 27, 2012

By the Commission: Chairman Genachowski and Commissioner Clyburn issuing separate statements;
Commissioner McDowell approving in part, dissenting in part, and issuing a
statement.

TABLE OF CONTENTS

Heading
Paragraph #
I.
INTRODUCTION .................................................................................................................................. 1
II. BACKGROUND .................................................................................................................................... 4
III. DISCUSSION ....................................................................................................................................... 10
A. A Commission-Hosted Online Public File Will Serve the Public Interest....................................... 12
B. Broadcasters’ Initial Costs To Comply Will Be Minimized and the Online Public File
Will Ultimately Lead To Cost Savings .......................................................................................... 19
1. We Are Tailoring the Requirements to Minimize Costs of Moving the Public Files
Online ....................................................................................................................................... 19
2. Broadcast Commenters Greatly Overstate the Costs Involved ................................................ 24
C. Application of Online Posting Rule to Specific Public File Components ....................................... 33
1. Political File ............................................................................................................................. 33

2. Letters From the Public............................................................................................................ 62
3. Other Components of the Online Public File ........................................................................... 68
4. Proposals To Increase the Public File Requirement Rejected ................................................... 81
D. Format of the Online Public File.................................................................................................... 85
E. Implementation............................................................................................................................... 89
F. Announcements and Links............................................................................................................ 107
G. Radio and Multichannel Video Programming Distributors.......................................................... 111
IV. PROCEDURAL MATTERS.............................................................................................................. 113
A. Regulatory Flexibility Analysis.................................................................................................... 113
B. Paperwork Reduction Act Analysis .............................................................................................. 114
V. ORDERING CLAUSES ...................................................................................................................... 115
APPENDIX A –Rules
APPENDIX B – Final Regulatory Flexibility Analysis

Federal Communications Commission


FCC 12-44

I.

INTRODUCTION

1.
In this Second Report and Order we modernize the procedures television broadcasters
use to inform the public about how they are serving their communities, by having stations post their
public files online in a central, Commission-hosted database, rather than maintaining the files locally at
their main studios. This updating of our rules harnesses current technology to make information
concerning broadcast service more accessible to the public and, over time, reduce broadcasters’ costs of
compliance.1 This Order is another step in our modernization of the Commission’s processes to transition
from paper filings and recordkeeping to digital technology. Without imposing any new reporting
obligation, it will help bring broadcast disclosure into the 21st Century.
2.
Specifically, we adopt—with significant modifications—the proposal discussed in the
Further Notice of Proposed Rulemaking (“FNPRM”) to replace the decades-old requirement that
commercial and noncommercial television stations2 maintain a public file at their main studios with a
requirement to post most of the documents in that file to an online public file to be hosted by the
Commission. We have departed from the proposal in a number of respects to maximize public benefits
while avoiding compliance costs that the record suggests would not be justified at this time. First,
because many stations’ existing political files are large, and the retention period for the political file is
shorter than for other portions of the public file, we will not require stations to incur the cost of upload
their existing political files to the online public file. Rather, stations may upload documents in that
portion of the public file only prospectively. Second, broadcasters will be responsible for uploading only
those items now required to be in the public file but not otherwise filed with the Commission or available
on the Commission’s website. In particular, the Commission will itself import to the online public file any
document or information now required to be kept in the public file and that must already be filed with the
Commission electronically in the Consolidated DataBase System (“CDBS”), so that stations do not need to
post that information. Third, we do not adopt new disclosure obligations for sponsorship identifications
and shared services agreements at this time, as had been proposed in the FNPRM. Rather, broadcasters
will only be required to place in their online files material that is already required to be placed in their
local files.3 Fourth, we do not impose specific formatting requirements on broadcasters at this time,
although stations should upload relevant documents either in their existing electronic format or in a
simple, easily created electronic format such as .pdf. Finally, we will provide an organized file system for
uploading documents so that the resulting public file for each station is orderly, and organizationally
similar for all stations, thus promoting ease of use by stations and the public.
3.
To better ensure that the Commission can accommodate television broadcasters’ online
filings and to limit any unforeseen start-up difficulties to those stations that are best able to address them,
we will phase-in the new posting requirements. For the next two years we will only require stations that
are affiliated with the top four national networks (ABC, NBC, CBS and Fox) and that are licensed to
serve communities in the top 50 Designated Market Areas (“DMAs”)4 to post political file documents


1 Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest
Obligations
, 26 FCC Rcd 15788, ¶ 1(2011) (“FNPRM”).
2 All permittees and licensees of a “TV or Class A TV station” in the commercial and noncommercial educational
broadcast services must maintain a public inspection file. See 73.3526(a)(2), 73.3527(a)(2).
3 We use the term “local file” in this Second Report and Order to refer to the file maintained at the station’s main
studio under our current rules, and note that under those rules stations are permitted to make their public inspection
files available electronically or in paper form. See 47 C.F.R. § 73.3526(b), 73.3527(b).
4 A DMA is a geographic area defined by The Nielsen Company as a group of counties that make up a particular
television market.
2

Federal Communications Commission


FCC 12-44

online.5 We exempt all other stations from posting their political file documents to their online public file
until July 1, 2014.6 The Media Bureau will issue a Public Notice no later than July 1, 2013 to seek
comment on the impact of this posting requirement, to enable us to consider whether any changes should
be made before it takes effect for the other stations. We also defer considering whether to adopt online
posting for radio licensees and multichannel video programming distributors until we have gained
experience with online posting of public files of television broadcasters.

II.

BACKGROUND

4.
One of a television broadcaster’s fundamental public interest obligations is to air
programming responsive to the needs and interests of its community of license.7 Rather than dictating
how broadcasters must meet that obligation, the Commission affords broadcasters broad latitude,8 subject
to a reporting requirement under which broadcasters must maintain a public inspection file that gives the
public access to information about the station’s operations.9
5.
Almost seventy-five years ago – in 1938 – the Commission promulgated its first political
file rule.10 That initial rule was essentially identical to our current political file regulation in its
requirements that the file be available for “public inspection” and include both candidate requests for time
and the disposition of those requests, including the “charges made” for the broadcast time.11 More than
45 years ago – in 1965 – the Commission additionally adopted a broader public inspection file rule.12 The
public file requirement grew out of Congress’ 1960 amendment of Sections 309 and 311 of the
Communications Act of 1934 (the “Act”), which allowed greater public participation in broadcast
licensing.13 Finding that Congress, in enacting these provisions, was guarding “the right of the general


5
The top 50 DMAs, for the purposes of this phase-in, are the DMAs ranked 1-50 by The Nielsen Company for
2011-2012. See Nielsen Local Television Market Universe Estimates, available at
h
ttp://www.nielsen.com/content/dam/corporate/us/en/public%20factsheets/tv/nielsen-2012-local-DMA-TV-
penetration.pdf.
6 We will not exempt these stations from posting other public file documents online; the exemption applies only to
the political file.
7 Revision of Programming and Commercialization Policies, Ascertainment Requirements, and Program Log
Requirements for Commercial Television Stations
, Report and Order, 98 FCC 2d 1075, ¶ 32 (1984).
8 Id. at ¶ 89.
9 Review of the Commission's Rules regarding the Main Studio Rule and Local Public Inspection Files of Broadcast
Television and Radio Stations
, Report and Order, 13 FCC Rcd 15691, ¶ 18 (1998), recon. granted in part,
Memorandum Opinion and Order, 14 FCC Rcd 11113 (1999).
10 See 3 Fed. Reg. 1691 (1938).
11 Id.
12 Commission's Rules Relating to Inspection of Records, Report and Order, 4 R.R.2d 1664 (1965); recon. granted in
part and denied in part,
Memorandum Opinion and Order, 6 R.R.2d 1527 (1965).
13 47 U.S.C. §§ 309 (Application for License) and 311 (Requirements as to Certain Applications in Broadcasting
Service). See also Commission's Rules Relating to Inspection of Records, 4 R.R.2d at ¶ 9-10 (1965) (1960
amendment to Section 309 to allow any “party in interest” to participate in the licensing process applied to the
general public and required the Commission to ensure that station “information is readily accessible, locally, to all
who seek it”), id. (1960 amendment to Section 311(b) to authorize the Commission to hold hearings “at a place in,
or in the vicinity of, the principal areas to be served by the station involved” required the availability of a local
public file in order to “permit any interested person to participate in such hearings.”).
3

Federal Communications Commission


FCC 12-44

public to be informed, not merely the rights of those who have special interests,”14 the Commission
adopted the public inspection file requirement to “make information to which the public already has a
right more readily available, so that the public will be encouraged to play a more active part in dialogue
with broadcast licensees.”15
6.
In October 2000, in the first Notice of Proposed Rulemaking issued in this proceeding,
the Commission concluded that “making information regarding how a television broadcast station serves
the public interest easier to understand and more accessible will not only promote discussion between the
licensee and its community, but will lessen the need for government involvement in ensuring that a station
is meeting its public interest obligation.”16 The Commission tentatively concluded that it should require
television licensees to make the contents of their public inspection files, including a standardized form
reflecting the stations’ public interest programming, available on their stations’ websites or, alternatively,
on the website of their state broadcasters association.17 In 2007, the Commission adopted a Report and
Order
implementing these proposals.18
7.
Following the release of the 2007 Report and Order, the Commission received petitions for
reconsideration from several industry petitioners and public interest advocates. The industry petitioners
raised a number of issues, generally contending that the requirements were overly complex and
burdensome.19 Public interest advocates argued that the political file20 should be included in the online
public file requirement rather than exempted as provided in the 2007 Report and Order.21 In addition, five
parties appealed the 2007 Report and Order, and the cases were consolidated in the United States Court of
Appeals for the District of Columbia Circuit.22 The court granted a petition to hold the proceeding in


14 Commission's Rules Relating to Inspection of Records at ¶ 9 (citing, e.g., Senate Report No. 690, 86th Cong., 1st
Sess., to accompany S. 1898, “New Pre-Grant Procedure” (Aug. 12, 1969) page 2).
15 Id. at ¶ 11.
16 Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest
Obligations
, Notice of Proposed Rulemaking, 15 FCC Rcd 19816 (2000) (“NPRM”) at ¶ 1.
17 NPRM at ¶ 31.
18 In the Matter of Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public
Interest Obligations
, Report and Order, 23 FCC Rcd 1274 (2007) (“2007 Report and Order”). The standardized
form component of the 2007 Report and Order, which was vacated in its entirety by the Commission in 2011, ¶ 9,
infra, is being addressed in a separate proceeding. See Standardizing Program Reporting Requirements for
Broadcast Licensees,
Notice of Inquiry, 26 FCC Rcd 16525 (2011).
19 See, e.g., Association of Public Television Stations and PBS Petition for Reconsideration (“APTS & PBS
Petition”) at 3-5; Broadcasting Licenses Limited Partnership Petition for Reconsideration at 3,7; Joint Broadcasters
Petition for Reconsideration at 18-22; Joint Public Television Licensees Petition for Reconsideration at 9-10.
20 Sections 73.3526(e)(6), 73.3527(e)(5) and 73.1943 of the Commission’s rules require that stations keep as part of
the public inspection files a “political file.” 47 C.F.R. §§ 73.3526(e)(6), 73.3527(e)(5), 73.1943. The political file
chiefly consists of “a complete and orderly record … of all requests for broadcast time made by or on behalf of a
candidate for public office, together with an appropriate notation showing the disposition made by the licensee of
such requests, and the charges made, if any, if the request is granted.” 47 C.F.R. §73.1943(a).
21 CLC et al. Petition for Reconsideration at 3-7.
22 National Association of Broadcasters v. FCC, No. 08-1135 (D.C. Cir.); Office of Communication of the United
Church of Christ, Inc. v. FCC
, No. 08-1151 (D.C. Cir.); ABC Television Affiliates Ass'n v. FCC, No. 08-1185 (D.C.
Cir.); The Walt Disney Company v. FCC, No. 08-1186 (D.C. Cir.); CBS Corporation v. FCC, No. 08-1187 (D.C.
Cir.).
4

Federal Communications Commission


FCC 12-44

abeyance while the Commission reviewed the petitions for reconsideration.23 Challenging the rules in a
third forum, several parties opposed the 2007 Report and Order’s “information collection” under the
Paperwork Reduction Act.24
8.
In June 2011, Commission staff released “The Information Needs of Communities”
Report (“INC Report”), a comprehensive report on the current state of the media landscape created by a
working group including Commission staff, scholars, and consultants.25 The INC Report discussed both
the need to empower citizens to ensure that broadcasters serve their communities in exchange for the use
of public spectrum, and the need to remove unnecessary burdens on broadcasters who aim to serve their
communities. The INC Report recommended an online system for public inspection files in order to
ensure greater public access.26 It also recommended that stations be required to disclose online shared
services agreements and “pay-for-play” arrangements.27 The INC Report further suggested that
governments at all levels collect and publish data in forms that make it easy for citizens, entrepreneurs,
software developers, and reporters to access and analyze information to enable them to present the data in
more useful formats,28 and noted that greater transparency by government and media companies can help
reduce the cost of reporting, empower consumers, and foster innovation.29
9.
In October 2011, the Commission vacated the 2007 Report and Order, determining that
technological and marketplace changes since 2007 may be pertinent to our consideration of television
broadcasters’ public disclosure obligations, and that the best course of action would be to take a fresh look
at the policy issues raised in this proceeding.30 The Commission also adopted an FNPRM to refresh the
record in this proceeding. It solicited comment on various proposals, including some of the proposals


23 Order, National Association of Broadcasters v. FCC, Nos. 08-1135 et al. (D.C. Cir.) (July 11, 2008).
24 The Paperwork Reduction Act of 1995, Pub. L. No. 104-13, requires that the Office of Management and Budget
(“OMB”) approve any information collections. As required, the Commission published a notice in the Federal
Register seeking comment on the projected burdens of the rules. See 73 FR 13462 (Mar. 13, 2008); 73 FR 30316
(May 27, 2008). Because of pending petitions for reconsideration requesting substantial revisions to the 2007 Report
and Order
that would affect the projected burdens, the Commission did not formally transmit the information
collection to OMB for its approval, choosing instead to address the petitions for reconsideration, and therefore the
rules adopted in the 2007 Report and Order never went into effect.
25 “The Information Needs of Communities: The Changing Media Landscape in a Broadband Age,” by Steven
Waldman and the Working Group on Information Needs of Communities (June 2011), available at
www.fcc.gov/infoneedsreport. As noted in the INC Report, the views of the report “do not necessarily represent the
views of the Federal Communications Commission, its Commissioners or any individual Bureaus or Offices.” Id. at
362.
26 INC Report at 28, 348.
27 INC Report at 28, 348-49. The Commission has previously noted that “pay-for-play” is “particularly common
with regard to the airplay of music.” Broadcast Localism, Report on Broadcast Localism and Notice of Proposed
Rulemaking, 23 FCC Rcd 1324, ¶ 98 (2008). In this item, we use the term “pay-for-play” more broadly to refer to
any kind of payola situation. “Payola” is the “unreported payment to, or acceptance by, employees of broadcast
stations, program producers or program suppliers of any money, service or valuable consideration to achieve airplay
for any programming.” Commission Warns Licensees About Payola and Undisclosed Promotion, Public Notice, 4
FCC Rcd 7708 (1988).
28 INC Report at 29, 351.
29 Id. at 28, 360.
30 Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest
Obligations
, Order on Reconsideration and Further Notice of Proposed Rulemaking, 26 FCC Rcd 15788, ¶¶ 7-9
(2011).
5

Federal Communications Commission


FCC 12-44

parties raised on reconsideration, to improve public access to information about how broadcasters are
serving their communities while minimizing the burdens placed upon broadcasters.31

III. DISCUSSION

10.
The updated rules we adopt today modernize disclosure procedures to improve access to
station files that, for decades, have been public more in theory than in practice. Today, reviewing a
television station’s public file typically involves the substantial expense and inconvenience of traveling to
the station and paying for paper copies. Under our rules, review will involve a quick and essentially
costless Internet search. This modernization is plain common sense. The evolution of the Internet and the
spread of broadband Internet access has made it easy for stations to post material online and for many
consumers to find information online.32 The television broadcast industry should not be left out of the
online revolution that has improved the delivery of products and services across our economy, as well as
the availability of government services and government information to the public.
11.
At the same time, we are committed to updating the outdated procedures for public
access to television stations’ public files in a manner that avoids unnecessary burdens on broadcasters.
We have significantly departed from the proposals in the FNPRM to achieve this goal. Based on this
balance of considerations, the online public file requirements we adopt today will replace the existing in-
station retention requirements as follows:
·
Each station’s entire public file will be hosted online, by the Commission.33
·
Television broadcasters will be responsible for uploading only those items now required to be in
the public file but not otherwise filed with the Commission or available on the Commission’s
website. These items include citizen agreements, certain EEO materials, issues/programs lists,
children’s television commercial limits records, donor lists for NCEs, local public notice
announcements, time brokerage agreements, must-carry or retransmission consent elections, joint
sales agreements, Class A continuing eligibility documentation, materials related to FCC
investigations (other than investigative information requests from the Commission), and any new
political file materials.
·
Any document or information now required to be kept in a television station’s public file and that
must already be filed with the Commission electronically in the Consolidated DataBase System
(“CDBS”) will be imported to the online public file and updated by the Commission. This includes
authorizations, applications and related materials, contour maps, ownership reports and related


31 Id.at ¶¶ 8-41.
32See Pew Research Center’s Project for Excellence in Journalism, Pew Internet & American Like Project, and the
Knight Foundation, How People Learn about their Local Community at 22 (Sept. 2011), available at
http://pewinternet.org/~/media/Files/Reports/2011/Pew%20Knight%20Local%20News%20Report%20FINAL.pdf
(“Among the 79% of Americans who are online, the internet is. . . the first or second most important source for 15 of
the 16 local topics examined [including weather, politics and elections, breaking news, arts and cultural events, local
businesses, schools and education, community and neighborhood events, restaurants, traffic, taxes, housing,
government, job openings, social services, and zoning].”); Pew Research Center for the People and the Press,
Internet Gains on Television as Public’s Main News Source (Jan. 4, 2011), available at
http://pewresearch.org/pubs/1844/poll-main-source-national-international-news-internet-television-newspapers (In a
2010 survey “41% said they get most of their news about national and international news from the internet,. . . up 17
points since 2007.”).
33 Excepted from this requirement are existing political file material and letters and emails to the station, which will
be retained in the station’s local file. See Section III.C.2, infra.
6

Federal Communications Commission


FCC 12-44

materials, EEO materials, The Public and Broadcasting manual, children’s television programming
reports, and Letters of Inquiry and other investigative information requests from the Commission,
unless otherwise directed by the inquiry itself.
·
Television stations will not be required to upload their existing political files to the online file;
rather, they will be permitted to maintain at the station those documents placed in their political
file before the effective date of our rules, and only upload documents to the online political file on
a going-forward basis.
·
To smooth the transition for both stations and the Commission and to allow smaller broadcasters
additional time to begin posting their political files online, we will exempt all stations that are not
in the top 50 DMAs and all stations not affiliated with the top four national television broadcast
networks, regardless of the size of the market they serve, from having to post new political file
materials online until July 1, 2014.
·
Stations will not be required to upload letters and emails from the public to their online public file;
rather, they will continue to maintain them in a correspondence file at the main studio.
·
Stations will not be required to include in their online public file any documents not already
required to be included in their local file.
We believe these procedures will substantially advance the original goals of the public file requirements
and better enable the public to engage with their local broadcasters. Further, while broadcasters will incur
a modest, one-time transitional cost to upload some portions of their existing public file to the
Commissions online database, that initial expense will be offset by the public benefits of online
disclosure. Over time, moreover, broadcasters will benefit from the lower costs of sending documents
electronically to the Commission, as opposed to creating and maintaining a paper file at the station.

A.

A Commission-Hosted Online Public File Will Serve the Public Interest.

12.
We agree with commenters who maintain that placing the public file online will improve
the public’s access to information and facilitate dialogue between broadcast stations and the communities
they serve.34 As the Commission noted in the FNPRM, making public file information available through
the Internet should facilitate public access and foster increased public participation in the licensing
process.35 The information provided in the public file is beneficial to persons who wish to participate in a
station’s license renewal proceeding. For example, as the Public Interest, Public Airwaves Coalition
(“PIPAC”) notes, when broadcasters fall short of their obligations or violate Commission rules, the
public’s ability to alert the Commission by filing complaints or petitions to deny the renewal of a station’s
broadcast license is essential, and the public file provides information necessary to file such complaints or
petitions.36


34 Association of Public Television Stations and the Public Broadcasting Service (“APTS and PBS”) Comments at
1-2; PIPAC Comments at 6; LUC Media at 1; United States Conference of Catholic Bishops Media and Democracy
Coalition Comments; The Carnegie-Knight Task Force Comments.
35FNPRM at 15796.
36 PIPAC Comments at 6. During the 1980s, when the Commission eliminated several of its longstanding
requirements for television with respect to non-entertainment programming, commercialization, ascertainment and
program logging, it continued to rely on the public’s access to quarterly issues/programs lists found in station’s
public files as the basis for citizens’ complaints and petitions to deny filed to ensure that licensees’ continued to
(continued.…)
7

Federal Communications Commission


FCC 12-44

13.
We also agree with commenters that access to the public files has been inconveniently
(and unnecessarily) limited by current procedures.37 Currently, the public can access a station’s public
files only by visiting the main studio during regular business hours. Several commenters discussed the
inconvenience of this limited access and identified problems they experienced in attempting to access
stations’ public files.38 Making the information available online will permit 24-hour access from any
location, without requiring a visit to the station, thereby greatly increasing public access to information on
how a station is meeting its public interest obligations. The Internet is an effective and low-cost method
of maintaining contact with, and distributing information to, broadcast viewers. Indeed, given the
considerable flexibility that stations have in locating their main studios39 and the fact that many members
of a station’s audience may be working during “normal business hours” – the only time stations are
obliged to make the file available – there seems little doubt that 24-hour Internet access would greatly
improve the accessibility of these files.40 The public benefits of posting this information online, while
difficult to quantify with exactitude, are unquestionably substantial.
14.
We further conclude that it will be efficient for the public and ultimately less burdensome
for stations to have their public files available in a centralized location. The Commission will, therefore,
host the online public file. A Commission-hosted online public file will allow consumers to easily find the
public files of all stations in their viewing area, making the Commission’s website a one-stop shop for
information about all broadcast television stations in a viewer’s market and eliminating the need to access
multiple stations’ websites. As we further discuss below, a uniform organizational structure among all
files will allow consumers to more easily navigate the public files of all stations of interest.41 The public
will be able to review the online public file of any station, and quickly navigate to where each category of
documents is found, because each station’s online public file will be organized in the same format.


(…continued from previous page)
serve the public interest. Revision of Programming and Commercialization Policies, Ascertainment Requirements,
and Program Log Requirements for Commercial Television Stations
, Report and Order, 98 FCC 2d 1075, ¶ 3
(1984), recon. denied, 104 F.C.C.2d 357 (1986), aff’d in part, remanded in part, Action for Children's Television v.
FCC
, 821 F.2d 741 (D.C. Cir. 1987). Similarly, the Commission relied on the public’s continued access to licensees’
public inspection files when it implemented its expedited license renewal process, as granting a simplified renewal
application presumes it will serve the public interest – a presumption which can be rebutted by complaints or
petitions to deny filed by the public. See Revisions of Applications for Renewal of License of Commercial and
Noncommercial AM, FM, and Television Licensees,
Report and Order, 49 RR 2d 740, 46 Fed. Reg. 26236 ¶¶ 14, 26,
29 (1981), recon denied, 87 FCC 2d 1127 (1981), aff’d sub nom. Black Citizens for Fair Media v. FCC, 719 F.2d
407 (D.C. Cir. 1983).
37 PIPAC Comments at 8, LUC Media Reply at 3, Michigan Campaign Finance Network Comments at 2.
38 See, e.g., Association for Education in Journalism and Mass Communication Reply; Media Reform of South
Carolina Comments; Michigan Campaign Finance Network Comments; Public Interest, Public Airwaves Coalition
(“PIPAC”) Comments at 8-9; Media and Democracy Coalition Comments.
39 See 47 C.F.R. §73.1125(a), which permits a station to locate its main studio anywhere within its community of
license, within 25 miles of the center of its community of license or anywhere within the principal community signal
contour of any AM, FM or TV station licensed to its community, which could be even farther away than permitted
by the 25-mile criterion.
40 Although Section 73.3526(c)(2) of the Commission’s public file rule, 47 C.F.R. §73.3526(c)(2), requires stations
with main studios located outside their communities of license to make copies of materials in their public file
available to people within their geographic service area and assist them in identifying relevant material, this
“remote” process is complicated and less transparent than permitting individuals to examine the file at their
convenience from any computer or Internet access device.
41 Common Frequency Comments at 2; LUC Media Comments at 6; Sunlight Foundation Comments at 2; PIPAC
Comments at 7; Media and Democracy Coalition Comments; Comments of D. Herzog.
8

Federal Communications Commission


FCC 12-44

15.
The Commission’s hosting of the public file also addresses concerns expressed by many
broadcasters about the burden of hosting files online themselves. The rules adopted in 2007 would have
required stations to host their public files on their own websites. In petitions for reconsideration, two
broadcast trade associations proposed that the Commission host the files instead, suggesting that such a
solution would be less burdensome to licensees, who would not have to devote resources to creating and
maintaining an online public file. They also contended this approach would be more efficient, since many
public file items are already filed with the Commission.42 For instance, the Named State Broadcasters
Associations estimated that the Commission’s hosting of the files would save broadcasters more than $24
million in first-year costs, and almost $14 million in annual costs thereafter.43 We agree that having the
Commission host stations’ public file information will ultimately reduce costs for stations – compared to
the existing local file requirements.
16.
We agree with commenters who reject the argument that there is no public need that can
be met by placing online the political file portion of the station’s public inspection file.44 As noted by
commenters, placing the political file online will enable candidates, as well as the public, journalists,
educators, and the research community, to identify and investigate those sponsoring political
advertisements.45 Under current rules, the political file must contain, among other things, all specific
requests for broadcast time made by or on behalf of a candidate and the disposition of those requests.46 It
must also contain information regarding other appearances by candidates (excluding those in certain news
programming exempt from the equal opportunities provision),47 and information about issue advertising
that “communicates a message relating to any political matter of national importance.”48 As noted by
some commenters, political ad spending is rapidly increasing,49 and often the only way to track such
expenditures is through stations’ political files.50 We also agree with PIPAC’s assertion that the
disclosures included in the political file further the First Amendment’s goal of an informed electorate that
is able to evaluate the validity of messages and hold accountable the interests that disseminate political
advocacy.51 As the Supreme Court stated in Citizens United v. FEC, “transparency enables the electorate
to make informed decisions and give proper weight to different speakers and messages” and that, “[w]ith
the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with
the information needed to hold corporations and elected officials accountable for their positions and


42 Named State Broadcasters Assn. Petition at 8; Association of Public TV Stations and PBS Reply at 8.
43 Named State Broadcasters Assn. Petition at 8, citing estimates from one “experienced and well-respected vendor.”
We note that Named State Broadcasters Association is now suggesting that we consider allowing stations to host
their public files on their own websites. Named State Broadcasters Assn. Comments at 18. For the reasons we
discuss below, we decline to adopt this option.
44 North Carolina Assn. of Broadcasters et al. Comments at 8.
45 Association for Education in Journalism and Mass Communication Comments at 1; Sunlight Foundation
Comments at 1-2; Brennan Center for Justice Comments at 1-2; Michigan Campaign Finance Network Comments at
2.
46 47 C.F.R. § 73.1943
47 See Id.
48 47 U.S.C. § 315(e).
49 LUC Media Reply at 2; PIPAC Reply at 4.
50 Brennan Center for Justice Comments at 2.
51 PIPAC Reply at 5.
9

Federal Communications Commission


FCC 12-44

supporters.”52
17.
Campaigns and candidates will be among those who benefit from being able to obtain
political file information online. Some industry comments argue that candidates will obtain only limited
benefits and possibly experience detrimental effects from moving the political file online.53 Broadcasters
argue that the existing process serves the candidates and the stations well, and there is no reason to
believe that changing the process will benefit candidates or campaigns.54 Other broadcasters argue that it
is more meaningful and efficient for a candidate’s representatives to speak with a station’s sales
department on the phone or in person.55 According to these broadcasters, personal interactions would be
lost if the political file were to be placed online, which would be frustrating and create inefficiencies for
advertising buyers and station staff.56 Although some stations may elect to continue to make information
routinely available to candidates through personal interaction at the station during business hours, which
we do not intend to discourage, we expect that candidates and their representatives will use the online
political file to obtain information from source documents without filtering by station personnel and at
any time of day. LUC Media, a candidate media buyer, argues that “the only way that candidates can
make sure that they receive the availabilities and prices that the law requires is to have access to stations’
and cable television systems’ political files.”57 LUC Media claims that the political file is necessary
because “stations and cable television systems have learned over the years that, if they can limit the
information that candidates have about availabilities and rates, they can get candidates to overpay for the
airtime that they buy.”58 While LUC Media notes that this is not the practice of all stations, LUC Media
routinely reviews stations’ political files to ensure that they are providing candidates with equal
opportunities, which is why “the Commission requires that this information be available for public
inspection.”59 LUC argues that “Internet access to those files will enable more candidates to become
better informed about availabilities and pricing and, thus, demand that they receive the lowest unit charge
for the time that they buy.”60 Internet access will also eliminate the need for such buyers to travel to every


52 Citizens United v. Federal Election Commission, 130 S.Ct. 876, 916 (2011). We are also persuaded by
commenters claiming that “the public must have access to information about the messenger as well as the message
to fully understand an ad’s content.” Sunlight Foundation Comments at 2. See also Comments of Glenn Frankel,
Journalism Professor at 2. As discussed below, under Commission rules, when “material broadcast is political
matter or matter involving the discussion of a controversial issue of public importance and a corporation, committee,
association or other unincorporated group, or other entity is paying for or furnishing the broadcast matter,” stations
must disclose “a list of the chief executive officers or members of the executive committee or of the board of
directors of the corporation, committee, association or other unincorporated group, or other entity . . . .” 47 U.S.C. §
317(a)(1); 47 C.F.R. § 73.1212(e); see ¶ 79, infra.
53 Joint Broadcasters Comments at 5; Joint Television Parties Reply at 11; North Carolina Assn. of Broadcasters et
al.
Comments at 13; Joint Broadcasters at 5; NAB Reply at 15-16.
54 Joint Television Parties Reply at 11; NAB Reply at 15.
55 North Carolina Assn. of Broadcasters et al. Comments at 13; NAB Reply at 15.
56 Id. We fail to see how the online availability of past political time purchases will discourage buyers from having
contact with the station concerning current and future time buys or how this information’s availability will interfere
with ongoing relationships between the stations and buyers. The fact that buyers and candidates will have increased
ease of access to relevant information should not preclude or hinder candidates or buyers from a continuing dialogue
with stations as they purchase time.
57 LUC Media Reply Comments at 4.
58 Id.
59 LUC Media Comments at 3-4.
60 LUC Media Reply Comments at 4-5.
10

Federal Communications Commission


FCC 12-44

station in a market to verify the contents of the public file, and to ask for help from station employees
who have to take time away from their normal duties to accommodate such requests.61 We agree with
LUC Media that placing the political file online will enhance the underlying purpose of the political file.
18.
Some broadcasters argue that the Commission’s focus in this proceeding has
inappropriately changed from increasing broadcast dialogue with the public to enabling access to
information about the stations for research and public advocacy groups with no ties to the broadcast
stations’ communities.62 We do not perceive the dichotomy these broadcasters suggest. While the public
file is first and foremost a tool for community members, it is also a tool for the larger media policy
community. Public advocacy groups, journalists, and researchers act in part as surrogates for the viewing
public in evaluating and reporting on broadcast stations’ performance. And as we stated in the FNPRM,
easy access to public file information will assist the Commission, Congress, and researchers as they
fashion public policy and recommendations relating to broadcasting and other media issues.63 For
example, the Commission has said that “the quarterly issues/programs lists will provide the public and the
Commission with the information needed to monitor licensees’ performance under this new regulatory
scheme and thus permit us to evaluate the impact of our decision. Existing procedures such as citizen
complaints and petitions to deny will continue to function as important tools in this regard.”64 Academic
analysis of such lists help the Commission monitor whether stations are meeting their responsibilities to
their local community, and can provide information relevant to citizen complaints and petitions to deny.
We recognize the efforts of public interest groups and academics to analyze publicly available
information and educate the public about how their local stations are serving their communities, and
believe that this work is an important aspect of educating viewers about their local television broadcast
stations.

B.

Broadcasters’ Initial Costs To Comply Will Be Minimized and the Online Public File
Will Ultimately Lead To Cost Savings.

1.

We Are Tailoring the Requirements to Minimize Costs of Moving the Public
Files Online.

19.
We have adopted a variety of measures to minimize the efforts broadcasters must undertake
to move their public files online. In addition, we have declined to adopt certain proposals in the FNPRM at
this time, to further ensure that the costs of compliance with the new posting procedures are outweighed by
the benefits of online disclosure.
20.
First, we are minimizing burdens on stations by not requiring them to upload documents
that are currently part of the public file but which are also filed in the Consolidated DataBase System
(“CDBS”) or that the Commission already maintains on its own website. The Commission will import
these documents into the online public file. Documents that fall in this category include station
authorizations, applications and related materials, contour maps, ownership reports and related materials,
EEO materials, The Public and Broadcasting manual, children’s television programming reports, and Letters


61 LUC Media Comments at 5, Reply Comments at 3.
62 Named State Broadcasters Assn. Comments at 3; Network Station Owners Reply at 12; Channel 51 of San Diego
et al. (“Four Commercial and NCE Licensees”) Comments at 3; North Carolina Assn. of Broadcasters et al.
Comments at 12.
63 FNPRM at ¶ 14.
64 Revision of Programming and Commercialization Policies, Ascertainment Requirements, and Program Log
Requirements for Commercial Television Stations
, Report and Order, 98 FCC 2d 1075, ¶ 3 (1984).
11

Federal Communications Commission


FCC 12-44

of Inquiry and other investigative information requests from the Commission, unless otherwise directed by
the inquiry itself. Broadcasters will be responsible for uploading only those items not otherwise filed with
the Commission or available on the Commission’s website.
21.
We recognize that stations’ need to upload other items in the public file – including citizen
agreements, certain EEO materials, issues/programs lists, children’s television commercial limits records,
donor lists for NCEs, local public notice announcements, time brokerage agreements, must-carry or
retransmission consent elections, joint sales agreements, Class A continuing eligibility documentation,
materials related to FCC investigations (other than investigative information requests from the
Commission), and new political file materials – will entail some burden initially, inasmuch as stations will
have to upload electronic versions or scan and upload paper versions of existing public files to the online
public file. But not all stations will have all of these documents. For example, a station may not have time
brokerage agreements,65 joint sales agreements,66 or citizen agreements,67 and may not be a Class A
station. In that situation, there will be nothing in these categories for the station to upload. Moreover,
many of the items in the public file will not require frequent updating. An LMA, for example, may have a
term of 5 or more years and would not require any further action on the part of the station unless the
agreement was amended or replaced. Joint sales agreements, citizen agreements, retransmission and
must-carry consent elections similarly involve extended periods of time. In addition, as discussed
below,68 stations will not be required to upload any of their existing political file documents. Rather,
stations may upload documents to the political file component of the online public file only prospectively.
We conclude that, for those public file items that stations do have to post, the transitional costs would
involve only a one-time burden on broadcasters that, as further explained below, we find is outweighed by
the significant benefits of transitioning the public file online.
22.
Second, we minimize burdens on broadcasters by declining to adopt any new
recordkeeping requirements. As discussed below,69 we are not adopting the proposal in the FNPRM to
require stations to include sponsorship identification information in the online public files or to include
shared services agreements that are not already required to be included in the local file. Instead, only
information already required to be included in the local file will need to be posted online.
23.
Third, we are not requiring stations to post files online in a particular format at this
time.70 Thus, they will not need to undertake the costs of developing new electronic forms or of
conforming their current recordkeeping practices to accommodate a Commission-designed form.


65 A time brokerage agreement is a type of contract that generally involves a station's sale of blocks of airtime to a
third-party broker, who then supplies the programming to fill that time and sells the commercial spot announcements
to support the programming. Commercial radio and television stations must keep in their public files a copy of
every agreement involving time brokerage of that station or of any other station owned by the same licensee. These
agreements must be maintained in the file for as long as they are in force. See 47 C.F.R. § 73.3526(e)(14).
66 A joint sales agreement is a type of contract that involves a station’s sale of advertising time with that of another
station, whether the agreement involves a station in the same market or different markets. Commercial stations must
keep these agreements in the public file for as long as they are in effect. See 47 C.F.R. § 73.3526(e)(16).
67 A citizen agreement is any written agreement that a licensee makes with local viewers or listeners that addresses
programming, employment, or other issues of community concern. The station must keep these agreements in the
public file for as long as they are in effect. See 47 C.F.R. § 73.3526(e)(3).
68See ¶¶ 43-44, infra.
69 See Section III.C.4, infra.
70 See Section III.D, infra.
12

Federal Communications Commission


FCC 12-44

2.

Broadcast Commenters Greatly Overstate the Costs Involved.

24.
Based upon the actions we are taking to minimize burdens, discussed above, and our
analysis of some television stations’ public files, we conclude that the broadcast commenters vastly
overstate the burdens of moving their public files online.
25.
The Commission is taking steps to ensure that the process of uploading files to the online
public file – both initially and prospectively – will be simple and efficient. We are developing the online
public file system to permit broadcasters simply to drag and drop documents into the relevant folders of
their online public file.71 As a result, although the initial upload of existing documents – that is, those
documents maintained in the paper file before the effective date of our new rules – will impose some
costs on stations, we do not believe these costs will be unduly burdensome, particularly compared to the
resulting benefits.72
26.
Some broadcasters argue that uploading the existing public file will be unduly
burdensome.73 They argue that we should implement the online public file requirement solely on a
forward-looking basis, encompassing either all documents created after a certain date or all documents
created after a station’s next renewal.74 Joint TV Broadcasters notes that many materials must be retained
until final action is taken on a station’s next license renewal application, and a decision requiring all
existing local files to be scanned and uploaded would require stations to upload eight years of information
that may soon be obsolete.75 It argues that some of the materials, like the issues/programs lists,
commercial limit certifications, and the political file, should be required to be uploaded to the online
public file only on a going-forward basis.76
27.
We find that the one-time electronic upload or scanning and upload of existing documents
is not unduly burdensome and that adoption of a grandfathering approach would be confusing to those
seeking access to the information. Such an approach would necessitate the continued maintenance of a
robust local file, which could diminish the benefits to the public of the online file with respect to improved
public access to information, and would diminish the benefits to the stations of moving their files online.


71 The Commission will create a folder for each of the required items to be placed in the online public file. Stations
will merely be required to place their relevant documents into the applicable folder.
72 See ¶ 28, infra.
73 Joint Television Parties Reply at 21-22; Joint Broadcasters Comments at 21; Joint TV Broadcasters Comments at
15. We note that the public file may contain documents generated by the existing and prior licensees of a station.
See 47 C.F.R. § 73.3527(d) (noting that when a transfer occurs, stations are required to retain public file documents
that were created by the prior licensee for the requisite retention period.)
74 Joint Television Parties Reply at 21-22.
75 Joint TV Broadcasters Comments at 15. This commenter also notes that many television stations have not
received a grant of their last renewal application due to holds of their renewals, and suggests that in such instances
the public file could contain material that is now as much as 15 years old. Id. at 15-16. We note that stations are not
required to keep all the items in the public file until final action is taken on the next license renewal. For example,
citizens’ agreements, time brokerage agreements, and joint sales agreements are retained for the terms of the
agreements themselves, while must carry and retransmission elections are kept for three years and donor lists are
retained for two years. Further, all stations will be exempted from uploading their existing political file, as the
commenter proposes, and many will be exempt from providing it on a going-forward basis until July 1, 2014.
Moreover, the political file is subject to a two-year retention requirement. Finally, as noted earlier, no station will be
required to upload letters or emails received from its viewers.
76 Joint TV Broadcasters Comments at 17. See also Joint Broadcasters Comments at 21.
13

Federal Communications Commission


FCC 12-44

We agree with Common Frequency that scanning existing paper documents does not constitute an
extraordinary burden, as it is a rote process that can be affordably outsourced if necessary.77 In addition,
if the documents are currently maintained in electronic form, as some are likely to be, the one-time
burden will be de minimis.78
28.
Our determination that the transition process will not be unduly burdensome is based in
part on a review, in March 2012, of the public files of stations in the Baltimore DMA.79 Our review of the
Baltimore DMA public files indicates that most stations will only need to upload a fraction of their
existing public file to the online public file – or approximately 250 to 2200 pages, as reflected in the
second column of the chart below. Columns three and four reflect what we believe the costs are likely to
be for stations to upload this information. We estimate that stations that choose to scan and upload this
information in-house can do so for $.10 per page,80 while stations can outsource such work for
approximately $.50 per page. Based on this assumed cost of $.10 to $.50 per page, we calculate a range
of the average cost for a station to upload their existing public file in accordance with this Order, with the
average cost per station ranging from approximately $80-$400 per station. We believe that this modest
one-time expenditure (even if it were not offset by later costs savings as we believe it will be) is worth the
benefits of providing the public with access to a station’s existing public file.81
Public file
pages to
In-House cost
Outsourced
In-House
Outsourced
upload w/in 6
per page1
cost per page
Total
Total
months1
WBAL-TV
998
0.1
0.5
$99.80
$499.00
WMAR-TV
987
0
0
$0.00
$0.00
WJZ-TV
844
0.1
0.5
$84.40
$422.00
WNUV
251
0.1
0.5
$25.10
$125.50
WBFF
2094
0.1
0.5
$209.40
$1,047.00
WUTB
2126
0.1
0.5
$212.60
$1,063.00
WMPT
2180
0
0
$0.00
$0.00
WMPB
2180
0
0
$0.00
$0.00
Total
11660
$631.30
$3,156.50
Average
1457.5
$78.91
$394.56


77 Common Frequency Comments at 3.
78 FCC staff reviewed the public files for all eight television stations in the Baltimore DMA. One station provided
the entirety of their public file to us electronically. Two others provided virtually all of their materials
electronically. Stations that maintain records in this manner will be able to upload their existing files to the FCC
database especially easily.
79 Commenters provided little data based on actual station records. The Commission therefore determined that it
was advisable to supplement the record with empirical data from a sample market. Baltimore was selected because
its proximity to Commission headquarters in Washington, DC, and the relatively compact size of the Baltimore
DMA allowed staff to visit stations there without great difficulty.
80 Under the Freedom of Information Act, the Commission is allowed to charge for our research and reproduction
services under certain conditions. See http://www.fcc.gov/guides/how-file-foia-request. We have determined those
costs to be $.10 per page. See Modification of the Freedom of Information Act Fee Schedule, D.A. 10-97 (Jan. 19,
2010). We believe this to be an accurate reflection of actual reproduction costs, and we expect that scanning costs
would be equal to this or lower, because paper, ink, and fasteners are not required.
81 As discussed below, we reach a different conclusion with respect to the political file, concluding that stations need
not upload their existing political files.
14

Federal Communications Commission


FCC 12-44

29.
We agree with commenters that, once they incur these modest costs, stations will realize
savings by no longer having to keep a local file on a going-forward basis.82 Placing the information
online will minimize disruptions in the daily operation of a station, and reduce the burdens placed on
station staff that currently field phone calls and chaperone in-person requests to inspect the files.83 When
Commission staff sought to obtain the public files of the Baltimore stations, as well as those of five other
stations around the country, stations dedicated staff resources to copying the files, and were in no case
able to provide the copies on the same day as the request. Further, once broadcasters have completed the
initial upload of documents in the existing public files, as specified herein, we do not believe that uploading
public file documents on a going-forward basis to an online public file is likely to be any more burdensome
than placing such documents into a paper file. Indeed, in many instances, using the online public file will be
less burdensome, because uploading (or even scanning, then uploading) a file may be easier and more
efficient than photocopying it, walking it to the local paper file, finding the appropriate folder and inserting
it in the proper order.84
30.
The industry’s arguments regarding the costs involved with uploading documents to the
online public file focus on the political file, which they identify as the most active element of the public
file. NAB states that two stations have estimated that the time involved in completing political ad buys
will “essentially double” in an online environment, at a cost of $80,000 per station.85 Joint Broadcasters
estimates that “creating electronic versions of all political time requests” and uploading such documents
will take one half hour per record, which would amount to almost 16 hours per week per station during
the political season, compared to the 2.5 hours a week that stations spend under the current paper filing
system.86 We find unpersuasive the argument that the time required to assemble the online political file
will double or quadruple. Instead of photocopying documents and placing them in a paper public file,
stations will upload to the online public file documents already stored in electronic format or scan paper
documents (a process akin to photocopying) and upload the electronic versions.87 Given that the


82 PIPAC Comments at 10-11; Reply at 10; LUC Media Comments at 3; Sunlight Foundation Comments at 3. We
recognize that stations will be required to maintain and make publicly available a correspondence file with letters
and emails from the public, but we agree with commenters that stations will nonetheless realize significant
reductions in burdens by not having to maintain a more robust local file.
83 PIPAC Comments at 10-11, 17. Our current rules do not require stations to accommodate political file requests
over the phone, because such a requirement could disrupt station operations. 47 C.F.R. § 3526(c)(2)(i). We expect
that requiring stations to place the public files online will have a similar beneficial effect; reducing rather than
expanding, disruptions to operations at the station as station personnel would no longer have to process requests for
access to this information in person, as they are currently required to do. Instead of accommodating each candidate
or their campaign representatives personally on a frequent basis, an online requirement will allow a station to upload
the most up-to-date information periodically for all interested parties. As discussed below, however, we are
requiring stations to maintain a back-up of the political file for use in the event the Commission’s database becomes
unavailable or disabled.
84 See fn 89, infra.
85 NAB Comments at 18-19, Reply at 12.
86 Joint Broadcasters Comments at 13-14.
87 One commenter notes that not all stations own a scanner, or a scanner of sufficient quality to make copies of
documents adequate for uploading to the Commission’s online public file. North Carolina Assn. of Broadcasters et
al
. Comments at 10-11. For stations that do not wish to make this minor investment, other business solutions are
available, including creating documents electronically or outsourcing the scanning functions. Scanning costs may be
higher on a per-page basis if outsourced, just as it would be more expensive per page to outsource the copying and
filing of paper copies. Given that stations will be uploading fewer documents into the online public file than they
currently place in their paper files, we expect that station costs going forward will be lower than under the existing
requirements.
15

Federal Communications Commission


FCC 12-44

requirement to drag and drop the files into our online public file will replace the requirement to
photocopy and walk the documents to the local file, we expect that fulfilling this requirement will not take
substantially more time and may take less time to accomplish. Broadcasters provide no specific support
for their facially implausible assertion that creating electronic versions of political file requests and
uploading them would take a half hour. Moreover, they fail to acknowledge that the time involved in
uploading documents electronically should decrease substantially with time as station personnel become
more accustomed to this process.88
31.
We also disagree with the commenter who projects that the proposed online public file,
and specifically the political file and sponsorship identification requirements, will require each station to
hire one to three employees at an average cost of $30,000 to $140,000 per station per year.89 On the
contrary, given that the requirement to upload the files will replace rather than add to the existing file
requirements, we expect that stations will be able to assign these responsibilities to existing staff, rather
than hire additional staff. We fail to see how this requirement could legitimately result in the need to hire
three additional staff members, even in the heat of an election. Moreover, the commenters’ estimated
figures include the costs of complying with the FNPRM’s proposed new public file requirement for
sponsorship identification, which, as we discuss below, we are not adopting. Further, to the extent these
figures include costs associated with the initial upload of the existing political file, they overestimate the
burden on broadcasters because we do not require the existing political file to be uploaded.
32.
We note that because the size of the political file appears to roughly correlate with a
station’s political advertising revenues, stations with little or no revenue will have little to no obligations
under these rules, and stations with larger numbers of pages to upload will tend to have similarly large
income associated with those pages.90 When balanced against the revenues earned from political
advertising – which brought broadcasters an estimated $2.29 billion in 2010 and are expected to bring in
even more in 201291 – the costs of complying with the online posting requirement seem even less
significant. Indeed, political files reviewed by Commission staff, from markets across the country,
generally reflect that stations receive political advertising revenues of thousands of dollars per page of
political file that must be uploaded. We also agree with commenters who note that ad buyers, candidates,
and the public must today undertake burdens to obtain information about the political file, including
traveling from station to station to obtain political file information.92 Our collection of the Baltimore
DMA public files required, in total, dozens of person-hours, driving back and forth to stations (first to
request the copies and then to collect them), and copying costs that were estimated at close to $1,700 by
the stations themselves. Our action today will substantially reduce or eliminate each of those burdens.


88 As discussed further in Section III.C.1 below, stations are required to “keep and permit public inspection of a
complete and orderly record (political file) of all requests for broadcast time made by or on behalf of a candidate for
public office, together with an appropriate notation showing the disposition made by the licensee of such requests,
and the charges made, if any, if the request is granted.” 47 C.F.R. § 73.1943. We note that political files that
Commission staff reviewed frequently contained more information than is required by our rules. Stations that are
concerned about the burdensomeness of placing their political file online on a going-forward basis may wish to
review their political file retention practices.
89 Letter from Mark Prak, Counsel for Hearst Television, Inc., to Marlene Dortch, Secretary, FCC, MM Docket No.
00-168 (filed Dec. 14, 2011); see also Named State Broadcasters Assn. Comments at 12.
90 In addition, although candidate advertising must be sold at the lowest unit charge, issue advertisers are not entitled
to reduced rates and therefore pay market rates for advertising on broadcast stations.
91 PIPAC Reply at 4. See also LUC Media Reply at 4 (stating that projections estimate that broadcasters will make
roughly $3.2 billion in political advertising this year).
92 LUC Media Comments at 4-5.
16

Federal Communications Commission


FCC 12-44

C.

Application of Online Posting Rule to Specific Public File Components.

1.

Political File.

33.
We consider public access to stations’ political files particularly important. Therefore, we
will adopt the proposal in the FNPRM that political files be included in the online public file, but will
exempt all stations not in the top 50 DMAs, and all stations in the top 50 DMAs that are not affiliated
with the top four national television broadcast networks, from posting their political file documents online
until July 1, 2014. Prior to this exemption expiring – by July 1, 2013 - the Media Bureau will issue a
Public Notice seeking comment on the impact of moving online the political files for these 200 stations,
to enable us to consider whether any changes should be made before the requirement takes effect for the
other stations. In addition, as discussed above, we will not require any stations to upload their existing
political file; rather, they will be required to upload new political file content on a going-forward basis.
34.
We believe circumstances have changed to warrant reaching a different conclusion about
posting the political file online than we reached in the 2007 Report and Order. In the 2007 Report and
Order,
the Commission excluded the political file from the requirement that stations post their public files
on their websites. 93 The Commission determined that the frequent requests for access by campaigns and
the need for stations to update the file frequently during an election season made an online posting
requirement inappropriate.94 The Commission also reasoned that political campaigns generally have
greater resources than individual viewers and, therefore, access to the in-station political file would tend
to be less burdensome for campaign organizations.95 Petitioners for reconsideration argued that such a
decision focused exclusively on the interests of the candidates and broadcasters, and not on the public.96
In addition, as the Commission noted in the FNPRM, television stations now handle many political
advertising transactions electronically, through emails and a variety of software applications.97 As a
result, requiring stations to make this information publicly available online will impose far less of a
burden under current circumstances than under previous conditions.98 We thus disagree with arguments
that the Commission does not have a sufficient basis to reverse the decision of the 2007 Report and Order
to exclude the political file from the online requirement.99 Our understanding of how stations manage
their political transactions and their traffic systems,100 technological advances that have occurred since
the 2007 Report and Order, and our decision to host and centralize the online public file support our
revised approach. Below, moreover, we respond to specific arguments that we should exclude the
political file from the online public file.


93 See 2007 Report and Order at ¶¶ 19-20; see also FNPRM at ¶¶ 20-22.
94 See 2007 Report and Order at ¶ 20.
95 Id.
96 Campaign Legal Center et al. Petition for Reconsideration at 3.
97 FNPRM at ¶ 23.
98 Id.
99 North Carolina Assn. of Broadcasters et al. Comments at 8, Reply at 4; Joint Broadcasters at 4-5; Network Station
Owners Reply at 7-8; Joint Television Parties Reply at 4.
100 A traffic system is a “system for scheduling of program material, and in particular the advertisements, for the
broadcast day. The result of this scheduling is a daily playlist for a channel.” See
http://documentation.vizrt.com/viz-multichannel-guide/2.6/01_overview_important_terms.html
17

Federal Communications Commission


FCC 12-44

35.
Electronic Processes. Some industry commenters argue that our understanding that
stations now conduct political advertising transactions electronically is incorrect.101 They argue that for
some candidates the purchasing process is not electronic, but done through a variety of means, including
phone, fax, and in person.102 For political ad buys, the process can be multi-staged. They state that
negotiations may result in many entries into the political file before an agreement to provide time is
reached.103 After an agreement is reached, the actual times the advertisement is aired can still change if
the spot is purchased on a preemptible basis.104 In addition, NAB states that national advertising sales
representatives communicate with the stations they represent using proprietary software that varies among
companies and may not include information about classes of time or rates in the documents they generate,
and therefore do not provide sufficient information to fulfill the political file documentation
requirements.105 Thus, these parties argue, stations do not collect information in a uniform manner, and
the Commission cannot assume that all of the information that must be in the public file will be included
on one form.106 Further, commenters argue that computerized traffic management systems used to sell
and schedule television advertising time will not in any way facilitate compliance with an online political
file requirement, as there are many different types of automated systems that collect, track, and process
information in different ways.107
36.
Notwithstanding these arguments, broadcasters’ record descriptions of how stations
actually track advertising purchases and manage the scheduling of such transactions confirms our
understanding that stations are capable of, and often do, include electronic processes in their assembly of
the political file.108 While we recognize that there are still some portions of the sales process and political
file assembly that are not fully automated, and that some stations use electronic means to a larger extent
than others, our review of Baltimore political files confirms that many of the records that would be
required to be in the public file originate as or are reduced to electronic files and would thus be relatively
easy to upload in a universally readable format, such as .pdf. To the extent that a required document is
not automatically converted to electronic form by the sales or invoice and reconciliation process, they can


101 Named State Broadcasters Assn. Comments at 6; Joint TV Broadcasters at 4; Joint Broadcasters at 6; North
Carolina Assn. of Broadcasters et al. Comments at 9.
102 NAB at 10; Joint TV Broadcasters Comments at 4; Network Station Owners Reply at 5; Bouchard Broadcasting
at 1; Joint Television Parties Reply at 5.
103 NAB Comments at 10. As discussed below, the political file rule does not require stations to include a record of
the negotiations or back-and-forth discussions between the licensee and the candidate after the initial request is
made. See ¶ 42, infra.
104 NAB Comments at 11. Advertising time sold on a preemptible basis means that the advertising spot may be
preempted by another advertiser and re-scheduled for another time. Id.
105 NAB Comments at 10. See also North Carolina Assn. of Broadcasters et al. Comments at 9; Joint Broadcasters
Comments at 6-7; Joint Television Parties Reply at 5.
106 Joint TV Broadcasters Comments at 4; NAB Comments at 11. NAB goes on to explain that billing systems
commonly used by stations generate a separate series of reports for each order. During the political season,
advertisers generally order time on a weekly basis. A typical billing system will generate three documents for the
political file relating to each order – one report showing the original order placed into the station’s traffic system,
another showing the exact times that spots ran, and a third showing the final charges paid by candidates for those
spots. For each order, these reports occupy three to ten printed pages, and for very active advertisers, a weekly
report may be much longer. NAB Comments at 13.
107 Joint Broadcasters Comments at 7.
108 NAB Comments at 12, Named State Broadcasters Assn. Comments at 8, Joint Broadcasters Comments at 8-9,
Joint Television Parties Reply at 6.
18

Federal Communications Commission


FCC 12-44

be easily scanned and uploaded instead of photocopied and placed in the paper file, as is the current
practice.109
37.
Furthermore, we reject broadcasters’ burden arguments that are based on the fact that
existing electronic traffic management systems may not be programmed to allow stations to upload
documents directly to a database.110 According to some broadcasters, each traffic management software
system provider would have to program, test, and finalize an export function tailored to the Commission’s
servers, consuming “hundreds of thousands of man hours,” after which broadcasters would have to install
this new software on their existing systems, and [t]aken together, these steps would stretch into years, and
the costs would be significant.”111 Under the rules we are adopting, broadcasters will not need to change
the software in their traffic systems to post documents to our online public file, though they are free to do
so if that is the approach they wish to take. Rather, stations will either need to save such files to widely
available formats such as Microsoft Word (.doc) or rich text format (.rtf), or convert the files to portable
document format (.pdf) , and then drag and drop those files to the Commission’s online public file. We do
not believe that either of these alternatives will impose appreciable increased costs on broadcasters as
compared to current requirements.
38.
Increased Access to Lowest Unit Charge Information. NAB expresses concern about the
“unintended but potentially very real marketplace distortions and consequences that could occur if market
sensitive information is readily accessible” to its competitors.112 It notes that, in addition to broadcasters,
cable operators and DBS providers must also keep a political file, and requiring only broadcasters to place
their political file online would “place broadcasters at a disadvantage vis-à-vis their competitors.”113
NAB argues that “[b]roadcasters could see advertising revenues drop if competitors attempt to use the
data in the file to undercut their rates. This disadvantage would directly harm the public,” NAB
continues, “because, if advertising revenue drops due to disparate regulation, stations would not be able to
expand service offerings, and may have to cut back on current offerings.”114 Network Station Owners
also express concern about making “[t]his proprietary information . . . available to commercial as well as
political advertisers, to other local stations, and to competing advertising media such as cable operators,
newspapers and web sites.”115 It argues that because the political file contains “information on the
station’s lowest rates on particular programs and rotations,” placing the political file online will “afford a
significant intelligence advantage to one side in private commercial negotiations. Armed with political
file information, the shrewd time buyer's ability to drive the hardest possible bargain would be greatly
enhanced by data allowing him to estimate the station's bottom line. One poker player would, in effect,
have had at least a partial glance at the other’s hand.”116


109 PIPAC Reply at 10.
110 NAB Comments at 18; Joint Broadcasters Comments at 10.
111 Joint Broadcasters Comments at 10.
112 NAB Comments at 7, Reply at 21-22. See also Network Station Owners Reply at 4, 12.
113 NAB Comments at 22, Reply at 21.
114 NAB Comments at 22.
115 Network Station Owners Reply at 12-13.
116 Network Station Owners Reply at 13-14. One party also claims that online disclosure of a station’s political file
will result in an uncompensated government taking in violation of the Fifth Amendment. See Ex Parte Presentation
of Target Enterprises, dated April 19, 2012, at 9-10. We disagree. Target Enterprises is a media buyer that claims
to have “buil[t] a proprietary computer statistical model and database” to enable “its clients to achieve the most
effective media purchases during an election cycle.” Id. at 9. Target claims that an uncompensated taking will
(continued.…)
19

Federal Communications Commission


FCC 12-44

39.
We find that placing this already-public information online will not cause significant
market distortions. Furthermore, the benefits of placing the political file online are substantial, and we
will not exclude it on the basis of unsubstantiated burden arguments. Broadcasters have failed to provide
any evidence to support their claims of commercial harm.117 Most important, we are not requiring
broadcasters to make any information publicly available that stations are not already required to make
public. Broadcasters have been required to make political file information including rates charged for


(…continued from previous page)
result if the details of political ad spending become available online in real-time because Target’s “protected
business model and proprietary approach” will be disclosed to the public and its competitors and thus “cause the
value of the company to be lost.” Id. at 9-10. We reject Target’s takings claim on several grounds. The regulation
at issue does not result in a “physical taking” because it does not deprive Target of any property right, much less
result in a direct appropriation or physical invasion of private property; rather, it requires television broadcast
stations to post online information that they already make publicly available at their stations. Indeed, television
broadcast stations – not media buyers such as Target – are subject to the online requirement, and thus no direct
appropriation or physical taking of Target’s property can be shown. See Loretto v. Teleprompter Manhattan CATV
Corp.,
458 U.S. 419 (1982) (to establish a physical taking requiring just compensation, a party must show a direct
government appropriation or physical invasion of private property). We note that no broadcast station has raised a
takings argument. Similarly, Target has failed to establish the factors required for demonstrating a regulatory
taking. See Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978) (identifying several factors
for determining what constitutes a “ regulatory taking,” including the economic impact of the regulation, the extent
to which the regulation has interfered with distinct investment-backed expectations, and the character of the
government action). Nothing in the Commission’s regulations restricts Target’s ability to use or keep confidential
its computer models, database, or any other alleged “trade secrets.” Moreover, Target’s claim involves the general
health of its business rather than specific property or estimates as to the property’s likely diminution of value. As
the Supreme Court has explained, unilateral expectations and abstract needs are not sufficient to raise takings
concerns. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005-1006 (1984). Further, the broadcasters subject to the
online posting requirement operate in an industry that has long been regulated and thus this regulatory context
undercuts the reasonableness of Target’s purported expectations. Concrete Pipe and Products of California, Inc. v.
Construction Laborers Pension Trust for Southern California,
508 U.S. 602, 645-646 (1993) (noting, in rejecting
the claim of interference with reasonable investment backed expectations, that “those who do business in the
regulated field cannot object if the legislative scheme is buttressed by subsequent amendments to achieve the
legislative end”).
117 We note that several parties raised the claim of “commercial harm” in the final weeks prior to adoption of this
item, but the filings contain little more than generalized and vague assertions. See, e.g., Letter from Maureen A.
O’Connell, Senior Vice President, Regulatory and Government Affairs, News Corp., to Marlene Dortch, Secretary,
FCC, MM Docket No. 00-168 at 2 (filed April 19, 2012) (“placing the individual rate information online could
cause harm to stations when they negotiate with commercial advertisers, who would know, at the click of a button,
the rates that a station is charging its most favored commercial advertisers, at every station, in every market in the
country”) (emphasis added); Letter from Jonathan D. Blake, Covington & Burling LLP to Marlene Dortch,
Secretary, FCC, MM Docket No. 00-168 at 2 (filed April 19, 2012) (“the proposal could motivate political buyers to
shift substantial sums away from over-the air television to these other media. Such potentially severe marketplace
disruption is contrary to the public interest.”) (emphasis added); Letter from Kenneth C. Howard, JR, Counsel to
The E.W. Scripps Company, to Marlene Dortch, Secretary, FCC, MM Docket No. 00-168 at 1 (filed April 18, 2012)
(“by requiring broadcasters to post sensitive business information and rates online, the law may have the unintended
consequence of putting broadcasters at a disadvantage against their competitors in the marketplace.”) (emphasis
added); Letter from Jane Mago, Executive Vice President and General Counsel, National Association of
Broadcasters, to Marlene Dortch, Secretary, FCC, MM Docket No. 00-168 at 1 (filed April 12, 2012) (“We
emphasized that the potential harm to television broadcasters of placing specific rate information, including the
lowest unit rate information that stations must, by law, afford to political candidates, in an anonymously accessible
database was real and could place broadcasters at a significant competitive disadvantage versus other video
providers that would not have a similar requirement”) (emphasis added).
20

Federal Communications Commission


FCC 12-44

political advertising, available in some form since 1938,118 and anyone, including broadcasters’
competitors and customers can currently access these data in the paper files. In addition, since 2002,
Section 315(e) of the Act has specifically required that the political file include “the rate charged for the
broadcast time.”119 Moreover, the public files of broadcasters’ competitors have been available in paper
form to television broadcasters and the public for years.120 Given the mutual, long-standing public
availability of such documentation and the likely knowledge of this availability among major commercial
and political buyers, we do not believe that the increased ease of access to broadcasters’ public files will
lead to significant distortions in the marketplace.121 To the extent it is economically beneficial for
competitors, potential advertisers, or buyers who seek to represent advertisers, to access this data, they
already have the ability to review the material at the stations.122 Commenters have failed to show that an
online posting requirement would alter in any meaningful way the economic incentive of these entities.
Moreover, even if it had not been publicly available for decades, online posting of lowest unit charge
information would not necessarily lead to marketplace distortions. While the political file lists the lowest
unit charge that a candidate receives, it does not reveal significant information about the commercial
transaction that established that lowest unit charge. Various factors unknown to another commercial
buyer – including that the advertiser establishing the lowest unit charge bought a higher volume of ads,
committed to a long-term advertising relationship, or other variables – can justify denying the lowest unit
charge rate to a different commercial buyer under different circumstances.123 Further, given that the
statute expressly requires such information to be placed in the public file,124 exempting such rate
information would be contrary to the statutory directive to make the political file publicly available.
40.
Effect on How Stations Sell Time. NAB argues that online filing would necessitate
changes in how stations sell political advertising time, because “the variances in the ways in which
stations manage political advertising sales and the political file” would not be compatible with a
“standardization of stations’ political file processes.”125 These arguments seem to be based on a


118 See 3 Fed. Reg. 1691 (1938).
119 47 U.S.C. § 315(e)(2)(B).
120 47 C.F.R. § 73.3526(e)(6); 47 C.F.R. § 73.3527(e)(5); 47 C.F.R. § 76.1701(a); 47 C.F.R. § 25.701(d).
121 Although we do not know the exact percentage of advertisers and competitors that seek review of information in
stations’ political files, we are aware they do so on a regular basis, as Commission staff frequently receives calls
from stations asking whether or not they must provide such entities access to the political file. As staff has
previously instructed in these situations, all members of the public – including advertisers and competitors – are
entitled to access a stations’ political files.
122 Buyers do, in fact, review the political file. See Letter from Robert S. Kahn, General Counsel, LUC Media
Group, to Marlene Dortch, Secretary, FCC, MM Docket No. 00-168 at 3 (filed March 8, 2012) (discussing the
database of information that LUC Media creates based in part on their review of political files). We recognize that,
because of their economic incentive, competitors and potential advertisers may be more likely to undertake the
expense of visiting stations to review the current political files. We expect that having the files accessible online
will encourage other members of the public to make use of the political files.
123 In addition, the fact that there are many variables (lengths, classes of time, and time periods) for any given lowest
unit charge makes it harder for any potential purchaser to find a lowest unit charge that is comparable to the ad
purchase it is seeking to make. These variables also make it difficult to compare the lowest unit charges of
competing stations, as the stations may not sell the same classes of time. In the end, stations are in control of setting
lowest unit rates, and have final determination of how low they are willing to set their commercial rates.
124 47 U.S.C § 315(e)(2)(B).
125 NAB Reply at 16-17; Joint Broadcasters Comments at 12.
21

Federal Communications Commission


FCC 12-44

misunderstanding of our proposal in the FNPRM.126 As the Commission emphasized in the FNPRM, the
online political file is meant to serve as a source of information to candidates, buyers, viewers, and others,
but the actual purchase of advertising time and the receipt of equal time requests will continue to be
handled by the station.127 We reiterate that we are merely changing the form of disclosure to the public of
information already required to be in the public file. We are making no change in the political advertising
sales process. Rather, we expect stations to continue handling political ad sales in whatever way is most
convenient to them.
41.
Substantive Political File Requirements. We likewise are not persuaded by arguments
that the rules regarding what material must be included in the political file are vague and that, therefore,
the Commission should not adopt an online posting requirement.128 As discussed above, this proceeding
simply modernizes the procedures television broadcasters use to inform the public about information they
are already required to disclose. If any licensee is unsure about any aspect of our political file
requirements, it may request clarification of our existing substantive disclosure rules. To respond to
specific questions raised in this record, however, we offer the following guidance. The political file rule
requires that licensees “keep and permit public inspection of a complete and orderly record (political file)
of all requests for broadcast time made by or on behalf of a candidate for public office, together with an
appropriate notation showing the disposition made by the licensee of such requests, and the charges made,
if any, if the request is granted.”129 One commenter argues that it is unclear what “requests” includes.130
Although we do not think that term is unclear, we clarify that licensees are required to place in their
political files any final orders by candidates for specific schedules of time or availabilities within a
specific schedule of time – in other words, orders to buy particular schedules (including programs or
dayparts), amounts of time (including spot or program lengths), and classes of time for particular days
(such as preemptible spots, Monday-Friday rotations, runs of schedule or specific placements).131
Licensees are not required to place in their political files general requests by candidates for advertising
time stations have available to purchase, or rates for a general array of time.


126 See Letter from Jerald N. Fritz, Senior Vice President, Legal and Strategic Affairs for Allbritton
Communications, to Marlene Dortch, Secretary, FCC, MM Docket No. 00-168 at 1 (filed Mar. 22, 2012) (explaining
that Allbritton’s concerns regarding changes to the political advertising sales process were based upon a belief that
the Commission was proposing compliance in a “centralized, searchable database [which] could impose significant
burdens on broadcasters since it would necessarily require major modifications to all trafficking systems for all
television broadcasters . . . unavoidably affect[ing] the way all commercial time would be sold,” but noting that “to
the extent that the Commission is not contemplating such a national, government-directed, searchable database, our
concerns would be appreciably reduced.”).
127 FNPRM at ¶ 23.
128 National Religious Broadcasters at 13-14; Joint TV Broadcasters at 5; Named State Broadcasters at 10.
129 47 C.F.R. § 73.1943. The same information, among other things, must be included with respect to issue
advertising containing a message relating to a “political matter of national importance.” 47 U.S.C. § 315(e). These
issue ads will also need to be included in the online political file, just as they currently need to be included in the
local political file.
130 National Religious Broadcasters Comments at 13-14.
131 We note that “any final orders” mean orders that station representatives reasonably believe to be a final, agreed-
upon order. If the final order is later amended after being included in the on-line political file, a station can replace
the previously final order with the amended final order, or may simply upload the amended final order.
22

Federal Communications Commission


FCC 12-44

42.
In response to concerns that the term “disposition” is unclear,132 we note our rules define
it as “the schedule of time purchased, when spots actually aired, the rates charged, and the classes of time
purchased.”133 We clarify that the “disposition” of the request does not include a record of the
negotiations or back-and-forth discussions between the licensee and the candidate after the request is
made. It does include the final, mutually agreed upon order of time, including: classes of time
purchased; charges made; as well as any subsequent, relevant reconciliation information about the order,
including the times spots actually aired and details such as any “make goods” provided for preempted
time, and rebates or credits issued.134
43.
Existing Political File. Commenters argue that if we require stations to upload the
existing political file, it will be unduly burdensome.135 Some broadcasters provide projected costs and
burdens of placing the political file online. NAB estimates that just uploading the existing political files
could take hundreds of hours per station.136 NAB bases its projections on the largest political file it
reported.137 While we believe that this burden projection is overstated, we recognize that the existing
political file may contain the greatest number of pages for broadcasters to upload as they transition to an
online public file. Our review of the public files in the Baltimore DMA indicates that the
commercial stations’ political files were made up, on average, of 1568 pages, and accounted for, on
average, 30% of the stations’ public files.138 One station’s political file was made up of 4079 pages, or
almost 70% of its public file.139
44.
Departing from the proposal in the FNPRM, we do not require stations to post the
contents of their existing political files to the Commission’s online public file. Given the two-year
retention period for the political file, broadcasters’ investment in uploading existing political files would


132 Id.
133 47 C.F.R. § 73.1943. Broadcasters often refer to this as the “dates and dollars” requirement. See Network
Station Owners Comments at 9-10; Letter from Susan Fox, Vice President, Government Relations for The Walt
Disney Company, to Marlene Dortch, Secretary, FCC, MM Docket No. 00-168 at 1 (filed Mar. 2, 2012); Letter from
Maureen O’Connell, Senior Vice President, Government Relations for News Corp., to Marlene Dortch, Secretary,
FCC, MM Docket No. 00-168 at 2 (filed Feb. 8, 2012).
134 See In the Matter of Codification of the Commission’s Political Programming Policies, 7 FCC Rcd 678 (1991),
recon. denied, 7 FCC Rcd 4611 (1992). “Make goods” are advertising spot announcements rescheduled as a result
of technical difficulty or preemption. Id. at ¶ 57 n. 93.
135 Named State Broadcasters Assn. at 6.
136 NAB Comments at 19, Attachment A. NAB supported its assertions about the burdens of uploading the existing
political file by providing the estimated size of the political file in inches for six stations in six different television
markets, ranging in size from 3,150 pages to 8,100 pages. Id. For example, NAB noted that a political file in
Burlington, Vermont measured 19.5 inches, which they estimated as equaling 4,388 pages. NAB Comments,
Attachment A. Free Press argues that such estimates are exaggerated. Letter from Corie Wright, Senior Policy
Counsel for Free Press, to Marlene Dortch, Secretary, FCC, MM Docket No. 00-168 at 1 (filed Feb. 29, 2012). Free
Press states that it visited all of the television stations in Burlington, Vermont, and was unable to find any political
file that was as large as the files discussed by NAB. Id. Further, their review found that each political file reviewed
contained documents beyond the required two year retention period, illustrating the possibility that “broadcasters
may be mistakenly (and vastly) inflating the size of the political files they actually are required to maintain.” Id. at
2.
137 NAB Comments at 19, Attachment A.
138 This excludes letters and emails from the public, which will be retained in the local file.
139 Id.
23

Federal Communications Commission


FCC 12-44

have a limited return for the public. Likewise, exempting the existing political file will only require
broadcasters to continue to maintain a robust local file for a relatively short period. Because of the two-
year retention period for the public file and the relatively large size of existing files, we conclude that
exempting the existing political file from online posting is a reasonable means of reducing the initial
burden of moving public files online.
45.
Small Market and Non-Affiliate Exemption. Finally, we adopt in part a broadcaster
request that we delay online posting of the political file for smaller stations.140 These commenters argue
that we should allow all broadcasters to gain experience working with the online public file system before
requiring that they maintain their political file online.141 As noted above, this proceeding is over a decade
old, and we believe it is time to bring the accessibility of the entire public file into the 21st century in as
expeditious a manner as is possible.
46.
We are persuaded, however, that it is appropriate to allow certain stations additional time
to begin uploading the political file. As discussed further below, because the contents of the political file
are time-sensitive, stations must place records in the political file “immediately absent unusual
circumstances.”142 We believe it is appropriate to require stations with a greater market reach to
undertake this time-sensitive transition first, as they will be more likely to have dedicated resources to
address any implementation issues that arise, if necessary.143 Therefore, we will temporarily exempt
stations that are not affiliated with the top four national television broadcast networks (ABC, CBS, NBC
and Fox) in the top 50 DMAs and all stations that serve markets below the top 50 DMAs, regardless of
affiliation, from including their political file in their online public file for two years.144 This exemption
will ease implementation for broadcasters during the initial transition to the online public file, while also
giving the Commission time to ensure that the online public file system is implemented effectively.
47.
We believe that exempting stations that are not affiliated with the top four networks
(ABC, CBS, NBC and Fox) in the top 50 DMAs, and those stations in markets below the top 50 DMAs,
creates an exemption threshold that is clear, easy to establish and implement, and not often subject to
significant change. Other options for identifying the class of stations to exempt do not provide the
certainty that this clear definition provides. For example, an exemption for the top four ranked stations in
each market would create a threshold that is often subject to change, would be difficult to measure and
administer, and would provide uncertainty to broadcasters, as they are not as able to predict or control
ratings. The Commission has used a DMA and affiliation-based standard in other contexts, and we
believe it is appropriate to use in this instance.145
48.
Moreover, while this exemption will ease the initial implementation for broadcasters, it


140 As discussed above, stations need not place online those documents already contained in their political files
before the effective date of our rules.
141 Joint Television Parties Reply at 14; Named State Broadcasters Assn. Comments at 7, 10.
142 See ¶ 55-58, infra. See also 47 C.F.R. § 73.1943(c).
143 Named State Broadcasters Assn. Comments at 7, (“Undoubtedly, these costs would fall even more heavily on
smaller television stations.”)
144 We note that this exemption is permissive, not mandatory. If any station that falls within this exemption prefers
instead to immediately transition to the online political file, it is permitted to do so.
145 See Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act
of 2010,
Report and Order, 26 FCC Rcd. 11847, ¶ 11 (2011); Advanced Television Systems and Their Impact upon the
Existing Television Broadcast Service
, Fifth Report and Order, 12 FCC Rcd 12809, ¶ 76 (1997).
24

Federal Communications Commission


FCC 12-44

will nonetheless provide the public with online access to the political files of stations garnering the vast
majority of political advertising time and money. Stations affiliated with the top four broadcast networks
often provide the highest-rated programming, and therefore the most-watched advertising, including a large
proportion of political advertising. Based on numbers provided by Kantar Media, we find that these 11
percent of stations, which reach 65 percent of Americans,146 account for roughly 60 percent of the total
television political advertising dollars spent in each major election cycle.147 Affiliated stations are also
more likely to have dedicated IT resources to resolve issues that may arise with implementation of the
online political file in the expeditious manner that will be necessary for the political file. Stations that will
be exempt initially from the rule generally have smaller political files than the affiliates in the top 50 DMAs,
and therefore the public will not be deprived of online access to substantial amounts of political file
information during the limited exemption period.148 In addition, we believe that the approximately two
years of experience that stations will gain by transitioning the rest of the online public file will help to
ensure that they are prepared to upload the political file. We also believe that delayed implementation for
stations with a smaller market reach will ensure that the Commission is able to target assistance to these
stations, if necessary. Commission staff will gain experience with the process of assisting the smaller first
wave of broadcasters transitioning to the online political file. This will enable staff to more efficiently assist
the larger number of stations that will transition later, who may need enhanced support because of their
more limited IT resources.
49.
As part of our efforts to evaluate the effect of this transition, the Media Bureau will issue a
Public Notice by July 1, 2013 seeking comment on the impact of these rules. This Public Notice will give
commenters – including the initial group of stations to use the online political file, stations that have yet to
transition, and members of the public that review the online political file – an opportunity to provide the
Commission with information regarding the impact and utility of the online political file. The Public Notice
will enable the Commission to consider whether any changes should be made before the requirement takes
effect for the other stations.
50.
As discussed above, we do not believe online posting of the public file, including
prospective posting of the political file, will impose an unreasonable burden on any television broadcaster.
Nevertheless, if licensees not covered by the two-year exemption believe filing new political file materials
online will impose an undue hardship, they may seek a waiver of this requirement.149 Stations seeking
waivers should provide the Commission with information documenting the economic hardship the station
would incur in complying with this requirement, its technical inability to do so or such other reasons as
would warrant waiver under our general waiver standards.


146 Media Bureau staff analysis of Nielsen data shows that the Top 50 DMAs represent 65.4% of the total TV
households for the 2011-2012 TV season. Further, staff analysis also shows that the average combined audience
share of stations affiliated with the four major broadcast networks (ABC, CBS, FOX, and NBC) in each of the top
50 DMAs (i.e. the non-exempt stations) is 82% during prime time programming.
147 Kantar Media - a media research company that specializes in politics, advocacy, and public affairs advertising
expenditure data – indicates that “to date in the 2012 federal election cycle, 59 percent of all spot advertising dollars
have been spent on affiliates of the four largest national networks in top 50 markets.” Letter from Kenneth M
Goldstein, President, Kantar Media Campaign Media Analysis Group, to William Lake, Chief of the Media Bureau,
FCC, MM Docket No. 00-168 at 1 (Apr. 5, 2012). These percentages are consistent with the analysis of the 2008
and 2010 election cycles, where affiliates of the four largest national networks in top 50 markets received 64% and
62% of federal political advertising dollars spent on broadcast television, respectively. Id.
148 In our review of the political files of the Baltimore DMA, the political files of the stations that will be exempt
averaged 247 pages, which is substantially smaller than the political files for the stations affiliated with the top four
networks, which averaged 2104 pages.
149 See 47 C.F.R. § 1.3.
25

Federal Communications Commission


FCC 12-44

51.
Authority. No commenter challenged the Commission’s authority to require online
posting of the public file generally, but NAB suggests that the Commission lacks authority to require the
placement of station political files online, and that we therefore must carve out the political file from the
rest of the public file. In supplemental comments, NAB argues that in the Bipartisan Campaign Reform
Act of 2002 (“BCRA”), Congress expressly required that the IRS and FEC make certain election-related
records available online, but did not do so for the items required to be placed in broadcasters’ political
files.150 They assert that “the clear implication is that Congress did not intend for broadcasters to be
subject to an obligation to place their political files online and thus, the FCC lacks authority to impose
such a requirement absent further legislative action.”151 NAB further argues that “[w]here Congress
includes particular language in one section of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in the disparate inclusion or
exclusion.”152
52.
We find NAB’s argument unpersuasive. NAB overlooks relevant facts relating to the
adoption of BCRA. First, in adopting the political file retention requirements of Section 315(e) of the
Communications Act as part of BCRA, Congress explicitly required that “a licensee shall maintain, and
make available for public inspection, a complete record of a request to purchase broadcast time”153 and
that “[t]he information required under this subsection shall be placed in a political file as soon as possible
and shall be retained by the licensee for a period of not less than 2 years.”154 In doing this, Congress
essentially codified the existing political file regulations as reflected in Section 73.1943 of our rules at the
time,155 and placed no new restriction on the Commission’s discretion to implement the public-access
policy. That is particularly significant because, at the time of BCRA’s passage, the Commission had
tentatively concluded in this very proceeding that stations should place their public inspection files –
including their political files – online.156 Congress was presumably aware that moving the political file
online was actively being considered by the Commission, and expressed no intent to prevent such
updating of the rules. Congress instead placed no restriction in BCRA on how the Commission may
direct stations to make the political file “available for public inspection.” Because the statute is silent on
the question of how stations should make the political file “available for public inspection,” the
Commission, as the expert agency required to implement the Communications Act’s provisions, has
discretion in determining how to do so, provided that the Commission’s decision “is based on a
permissible construction of the statute.”157 Given this context, we do not believe that “available for public
inspection” equates to “available only in paper format and not online,” as NAB asserts. We instead
believe that this requirement of availability for public inspection allows us to require that such records be
made available for public inspection online, particularly given the ubiquity and general expectation of
electronic access to records today.


150 NAB Supplemental Comments at 1, citing the Bipartisan Campaign Reform Act of 2002, P.L. 107–155, 116 Stat.
81 (2002). See also Ex Parte Presentation of Target Enterprises at 13-15 (filed April 19, 2012).
151 Id. at 1-2.
152 Id. at 3-4; citing Gozlon-Peretz v. U.S., 498 U.S. 395, 404 (1991).
153 See 47 U.S.C. § 315(e)(1).
154 See 47 U.S.C. § 315(e)(3).
155 See 47 U.S.C. § 315(e); 47 C.F.R. § 73.1943
156 See Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest
Obligations
, Notice of Proposed Rulemaking, 15 FCC Rcd 19816, ¶ 31 (2000) (“NPRM”).
157 Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984).
26

Federal Communications Commission


FCC 12-44

53.
NAB also argues that “[i]t is apparent that Congress intended the FEC to be the central
repository of campaign information.”158 From this, they argue that requiring the political file to be placed
online would constitute “duplicative disclosure.”159 This argument overlooks the explicit requirement in
Section 315(e) that stations “maintain, and make available for public inspection, a complete record of a
request to purchase broadcast time.”160 NAB seems to be arguing that the statute, rather than our
proposed regulation, is unnecessary and duplicative. The Commission “must give effect to the
unambiguously expressed intent of Congress.”161 Here, that unambiguous intent is that the Commission
require stations to make the contents of the political file, as outlined in the statute, “available for public
inspection.”162 Both the existing requirement, and the proposed online update, give effect to the
expressed Congressional intent. We note as well that NAB’s arguments regarding the Commission’s
authority are contradictory – in the first argument, NAB wants to read BCRA’s lack of language
concerning an online file strictly, and in the second, it wants to ignore the political file statutory provision
entirely. We conclude that neither reading is correct.163
54.
Furthermore, the information filed with the FCC and the FEC is substantially distinct and
intended for different purposes. The FEC was established by Congress to regulate federal elections, and
FEC reporting requirements are limited to federal elections.164 The FCC’s political file, by comparison,
requires disclosure of information regarding all elective offices, including federal, state and local. The
FCC’s broadcast political file must be made “available for public inspection” in part to notify candidates
of information pertaining to transactions by an opponent. This notification is necessary in order to assess
candidates’ equal opportunities rights under Section 315 corresponding to an opponent’s purchases of ad
time.165 The FEC does not collect any of the specific data that would be useful to candidates in
connection with their equal opportunities rights, all of which appear in the political file, including:
“(A) whether the request to purchase broadcast time is accepted or rejected by the licensee; (B) the rate
charged for the broadcast time; (C) the date and time on which the communication is aired; (D) the class
of time that is purchased.”166 Instead, the spending data collected by the FEC requires candidates to
disclose the aggregate amount expended during the period of time covered by the disclosure to a


158 NAB Supplemental Comments at 4.
159 Id. at 5.
160 47 U.S.C. § 315(e).
161 Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984).
162 47 U.S.C. § 315(e).
163 NAB also quotes the FCC’s comments in an FEC proceeding in 2002, which stated that the FCC’s creation of an
online database to comply with BCRA “could be extraordinarily complex and will require the expenditure of
substantial resources in terms of time, money and personnel.” NAB Supplemental Comments at 8, citing Comments
of the FCC, Media Bureau, before the FEC, Re: Notice 2002-13, Electioneering Communications, at 1 and 3 (Aug.
29, 2002) (“FCC Comments”). NAB goes on to say that “[t]he online posting burdens that the FEC proposed to
impose on the FCC ten years ago and that caused the FCC to express concern are different from those the agency
proposes to impose on television stations today. But the issues here about the burdens that would be imposed on
stations by the FCC’s online file proposals “in terms of time, money and personnel” are similarly entitled to respect
and weight.” Id. As discussed in detail in the text, we have afforded considerable respect and weight to
broadcasters’ assertions about the burdens involved with posting their public files online, and have adopted a
number of measures intended to reduce those burdens without sacrificing the goals of this proceeding.
164 Federal Election Campaign Act of 1971, 2 U.S.C. § 431 et. seq.
165 47 U.S.C. § 315(a).
166 47 U.S.C. § 315(e)(2).
27

Federal Communications Commission


FCC 12-44

particular payee, the mailing address of the payee, the purpose of the transaction(s), the candidate’s name
and federal office sought, and the date of disbursement.167 Typically, candidates make their television
advertising purchases through media buyers. Thus, under the FEC’s aggregate disclosure requirements, a
candidate would only need to disclose the funds provided to a media buyer without disclosing how the
media buyer allocated such funding – whether it goes to television, radio or print media, let alone how
much was paid to each television station. There is no requirement to identify the specific components of
the ad-sales transactions that broadcasters include in their political files, making the FEC disclosures
nearly useless for a candidate seeking equal opportunities or learning what rates their opponents paid or
the schedule of time purchased, and useless to members of the public who are seeking information about
the purchasers of specific advertisements being carried on their local television station.
55.
Immediacy. Consistent with our current political file rules, we adopt the FNPRM’s
tentative conclusion that stations must upload records to their online political file “immediately absent
unusual circumstances.”168 Whether maintained at the station or online, the contents of the political file
are time-sensitive.169 For example, a candidate has only seven days from the date of his or her opponent’s
appearance to request equal opportunities for an appearance.170
56.
We do not believe that complying with the longstanding immediacy requirement will be
any more difficult when uploading to an online public file than when placing paper in a local file; in fact,
using the online public file should often be quicker and more efficient. Some commenters claim that
uploading the political file to the online public file immediately absent unusual circumstances is either
extremely burdensome or technically impossible, with no public benefit.171 These commenters state that
political advertising buys are fluid and often made at the last minute.172 They also point out that the final
documentation indicating when spots are aired and how much is charged for them is typically generated
only on a monthly basis.173 They note that for this reason, the Commission has advised that rather than
having to generate special documents, stations should provide the name of a contact person who can
provide parties reviewing the political file with the times specific spots aired.174 NAB argues that if
stations were required to update the online political file to reflect the times that spots aired on a daily
basis, that could entail filing more than 100 pages per day of traffic reports in addition to the materials
already required to be in the political file.175 Other commenters argue that moving the political file online
will not lessen disruptions to station operations, because the delayed final disposition information about


167 See FEC Form 3X (Reports of Receipts and Disbursements For Other Than An Authorized Committee),
Schedule B (Itemized Disbursements), available at www.fec.gov/pdf/forms/fecfrm3x.pdf.
168 Section 73.1943(c) of the Commission’s rules provides that “[a]ll records required by this paragraph shall be
placed in the political file as soon as possible . . . . As soon as possible means immediately absent unusual
circumstances.” 47 C.F.R. § 73.1943(c).
169 See 47 C.F.R. § 73.1943(c).
170 See 47 C.F.R. § 73.1941(c).
171 Four Commercial and NCE Licensees Comments at 4, 6; Joint TV Broadcasters Comments at 5-6; Named State
Broadcasters Assn. Comments at 8; North Carolina Assn. of Broadcasters et al. Comments at 10; Joint Television
Parties Reply at 8.
172 Named State Broadcasters Assn. Comments at 8; North Carolina Assn. of Broadcasters et al. Comments at 10;
Joint Television Parties Reply at 8-9.
173 Joint TV Broadcasters Comments at 6; NAB Comments at 12.
174 Joint TV Broadcasters Comments at 6.
175 NAB Comments at 13. See also Joint Broadcasters at 5.
28

Federal Communications Commission


FCC 12-44

when a spot was aired is information that candidates are interested in obtaining from the station, and
stations will still need to field daily in-person inquiries from buyers seeking this information.176
57.
These arguments generally suggest that online filing would involve a change to existing
substantive requirements for assembling the public file. Under our existing rules, however, the political
file must include all requests for broadcast time made by candidates, the final disposition of that request,
and the charges made. The FNPRM did not propose to change these record-keeping requirements, and we
do not do so.177 We understand that stations generally place initial requests and the final order agreed to
between the candidate and the station into the political file immediately, consistent with our rules.178 We
also understand that stations do not routinely place documentation relating to reconciliation information –
including the times spots actually aired and details such as any make goods for preempted time,179
rebates, or credits issued – in the political file on a daily basis. Stations instead make station personnel
available to answer questions about final reconciliation in person, by email, or over the phone, and place
written documentation about the final disposition in the file at a later date consistent with business
practices – usually when final billing is compiled for the purchaser on a monthly basis. This practice is
permitted. As the Commission stated in the Political Rules Reconsideration decision, “stations need not
be required to employ extraordinary efforts to place immediately in the political file the exact time that
candidate spots aired. . . . [I]t will be sufficient to provide information concerning the spots and program
times that were ordered by the candidate, with a notation that the station will, upon request, provide
immediate assistance and access to the station logs or other definitive information concerning actual air


176 Joint TV Broadcasters Comments at 6; Joint Television Parties Reply at 9.
177 We are not persuaded by alternative proposals, one by News Corporation and another by a coalition of broadcast
station groups, to adopt additional record-keeping requirements for stations with respect to the political file. The
proposal initially advanced by the coalition of broadcast station groups was that we not require stations to make their
entire political files available online, but rather require online posting – on either the Commission's or the station’s
website, at the station’s election – certain aggregate data concerning candidate purchases of advertising time, with
weekly or monthly updates. Letter from Mary Jo Manning, on behalf of Barrington Broadcasting Co. et al., to
William T. Lake, Chief, Media Bureau, FCC, MM Docket No. 00-168 (filed Feb. 15, 2012); Letter from Mary Jo
Manning, Jonathan Blake, and Wade Hargrove, on behalf of Barrington Broadcasting Co. et al., to Marlene H.
Dortch, Secretary, FCC , MM Docket No. 00-168 (filed March 15, 2012). An expanded coalition later advanced a
revised proposal that would require stations to upload certain aggregate data concerning candidate purchases of
advertising time, with updates daily, every second day, or weekly. Letter from Jonathan D. Blake, on behalf of
Barrington Broadcasting Co. et al., to Marlene Dortch, Secretary, FCC, MM Docket No. 00-168 (filed April 20,
2012). News Corporation, on the other hand, submitted a proposal that would provide stations with the option of
either placing their political files online or putting summary information (but not individual rates) in the online
public file, while requiring stations to continue to maintain a paper file at the station that includes the rate
information. See Letter from Maureen A. O’Connell, Senior Vice President, Regulatory and Government Affairs,
News Corp., to Marlene Dortch, Secretary, FCC, MM Docket No. 00-168 (filed April 19, 2012). While we
appreciate the efforts of these parties to develop alternatives, we believe that these options will deprive the public of
the benefits of immediate online access to all the information in the political file. These suggested approaches
would impose a new substantive public file reporting obligation on stations, which would be contrary to our goal of
limiting the burdens on broadcasters. See ¶¶ 26-32, supra. Furthermore, our political file disclosure requirements
take into account a candidate’s equal access opportunities afforded under the statute. See 47 U.S.C. § 315(a). Under
our rules, these rights exist for only 7 days; therefore, to be of value in this regard stations must post political file
information immediately. The proposals requiring stations to post information every other day during the equal
opportunity period (or even every day in the week before an election), would have limited value to candidates
seeking to exercise their equal opportunities rights.
178 See 47 C.F.R. § 73.1943.
179 See fn. 106, supra.
29

Federal Communications Commission


FCC 12-44

time.”180 We are not changing this precedent or practice. We are merely requiring that the materials that
stations currently copy and place in their local files on a daily basis now be uploaded to the online public
file on a daily basis, and that other information be uploaded consistent with existing business practices as
previously approved under Commission precedent.181 Modernizing public inspection procedures for
material in the public file will not increase stations’ costs of communicating information that is not yet in
the public file.
58.
Finally, some commenters argue that the existing political file system works adequately
for stations and candidates, and that it is unreasonable to make the political file available immediately
online for the benefit of researchers and other members of the public.182 Network Station Owners assert
that the interests of researchers, scholars and citizens in having access to information about political
spending “is not immediate and can be satisfied by visiting the station either during or after the election
campaign.”183 These commenters seem to be arguing that the needs of stations and candidates are
singularly important, and that if these constituencies are not seeking changes to how the political file is
maintained, then no changes are warranted. We disagree. First, as LUC Media points out, candidates will
benefit from real-time posting of the political file.184 Supporting that view, the record indicates that the
online political file will be used by candidates, their representatives, and the general public.185 Second, as
discussed above, 186 the statute does not prioritize any potential users of the political file; it broadly
mandates that the materials be made “available for public inspection . . . as soon as possible,” which the
Commission has long interpreted to mean available to all members of the public “immediately absent
unusual circumstances.”187


180 7 FCC Rcd at ¶ 91.
181 In addition to making this information available online, stations are free to continue making this information
available over the phone to candidates and their representatives, if that is their preferred business practice, and as
long as that courtesy is extended to all candidates and their representatives.
182 Network Station Owners Reply at 11-12; Joint Television Parties Reply at 12-13. Joint TV Broadcasters argued
that “even PIPAC, the entity urging the FCC to require stations to post their political files online has recognized that
the political file can change daily during the election season and has suggested that the online posting requirement
‘could include provisions for a reasonable delay in posting updated information.’” Joint TV Broadcasters
Comments at 6, citing Letter from Angela Campbell and Andrew Schwartzman, Counsel for the Public Interest,
Public Airwaves Coalition, to Julius Genachowski, Chairman of the FCC (Aug. 4, 2011)(“PIPAC ex parte”). They
contend this supports their conclusion that it would be difficult for stations to upload this information “in real time.”
Joint TV Broadcasters Comments at 6. The commenter fails to note that with respect to burdens, PIPAC actually
stated its belief that “placing this information online will reduce the burden on broadcasters that often receive
multiple daily in-person requests to access this information during an election season.” PIPAC ex parte at 5. In their
comments, PIPAC “strongly supports” the public file proposal discussed in the FNPRM. PIPAC Comments at 13-
17.
183 Network Station Owners Reply at 11.
184 See generally LUC Media Comments and Reply.
185 LUC Media Comments at 7; PIPAC Comments at 15; Michigan Campaign Finance Network Comments at 2.
186 See ¶ 16, supra.
187 47 U.S.C. § 315(e)(1), (3); 47 C.F.R. § 73.1943 (stating that “[a]s soon as possible means immediately absent
unusual circumstances”). The Named State Broadcasters Association expresses concern that “public advocacy
groups and the Commission will play ‘stop watch’ roulette if the political files were to go online.” Named State
Broadcasters Assn. Comments at 9. They state that the base fine for political file rule violations is $9,000 and that
“the FCC will have a strong incentive to find at least technical shortcomings in every television station’s efforts to
comply with the mechanics of a new online political file requirement,” potentially exposing them to large fines
(continued.…)
30

Federal Communications Commission


FCC 12-44

59.
Orderliness. The Commission will design the online public file with an organizational
structure that will ensure that the contents of the file, including the political file components, are orderly
and easily uploaded and downloaded. The Commission’s rules require licensees to keep “a complete and
orderly” political file.188 The Commission stated in the FNPRM that it expected licensees to upload any
political file information to the online file in an organized manner so that the political file does not
become difficult to navigate due to the sheer number of filings.189 For an online political file to be useful,
the Commission acknowledged, candidates and members of the public must be able easily to find
information that they seek.190 The Commission asked whether it should create federal, state, and local
subfolders for each station’s political file, and whether it should allow stations to create additional
subfolders within the political file.191
60.
NAB recognizes that there are efficiencies in the Commission creating some
organizational categories for stations to use, and argues that “to the extent that the Commission can do
this in a timely and accurate manner, for both the general and primary elections for every race in the
country where candidates and issue advertisers may purchase advertising on a local TV station, NAB
agrees that it would be desirable.”192 We agree with NAB that it would be desirable and less burdensome
on broadcasters for the Commission to create specific organizational subfolders, not only for candidate ad
buys, but also for issue ads that relate to a political matter of national importance.193
61.
NAB also argues that the Commission should continue its policy of allowing broadcasters
to manage their political file in a manner consistent with their particular operational and sales
procedures.194 It expressed concern that if the Commission creates a rigid standardized organizational
structure, they will have to redesign their traffic management systems, which would expand the burdens
on broadcasters by interfering with systems that stations use and that are tailored to their own
circumstances.195 NAB argues that the Commission should provide broadcasters with the flexibility to
create their own subfolders and “subcategories” in order to further organize the data, and recommends
that the Commission consider employing the services of a third-party Web-based file hosting service such
as Dropbox.196 To facilitate broadcasters’ use of the online file, we will create and propagate subfolders


(…continued from previous page)
“notwithstanding the good faith efforts of staff-constrained broadcasters.” Id. We reject this reasoning. First, if
such an enforcement incentive exists, it would exist now with the existing public file rule. Second, as discussed
throughout this proceeding, our aim in making the public file available online is to make it more accessible to the
public. Commenters’ unsupported speculation about possible arbitrary enforcement provides no basis for
maintaining the obsolete paper filing system. Moreover, we reject the Named State Broadcasters Association’s
argument that the base fine for public and political file violations” should be lowered, id. at 16, an issue that is
beyond the scope of this proceeding.
188 47 C.F.R. § 73.1943(a). See also FNPRM at ¶ 24.
189 Id.
190 FNPRM at ¶ 24.
191 Id.
192 NAB Comments at 20.
193 Id.
194 NAB Comments at 16.
195 Joint Broadcasters Comments at 11; Named State Broadcasters Assn. Comments at 8; NAB Comments at 16-17.
196 NAB Comments at 20-21. Services such as Dropbox synchronize identified files, including folder structures,
between computers. Software installed on the machines watches in the background for modifications in user-
selected folders and synchronizes those changes over the Internet to other user-selected computers. The New York
(continued.…)
31

Federal Communications Commission


FCC 12-44

for candidates and will provide stations with the ability to create additional subfolders and subcategories
in compliance with their own practices. We also agree with NAB that the use of hosting services
providing a mechanism to allow stations to drag and drop files and folders to the online public file will
allow for greater efficiencies.197 We delegate to staff the authority to incorporate such efficiencies, and to
cooperate with industry as it develops specifications to enable such efficiencies and to incorporate them in
the online system, to the extent the staff concludes that such approaches are workable and effective. We
also delegate to staff the authority to design, add to, or adjust the features of the online public file, as
needed, to increase its ease of use.
2.

Letters from the Public.

62.
Responding to commenters, we exempt letters and emails from the public from the
online public file, instead requiring that such material be maintained at the station in a correspondence
file. In the FNPRM, the Commission proposed that letters and emails from the public, which now are
required to be included in the local file, should not be incorporated in the online public file, but instead
continue to be retained at the station for public viewing in a paper file or an electronic database at the
station’s main studio.198 The Commission tentatively agreed with reconsideration petitioners that privacy
and burden concerns were significant enough to merit excluding these documents from the online public
file, and sought comment on its findings.199 Alternatively, the Commission asked whether it should allow
or require stations to redact personally identifiable information before posting letters and emails online.200
Some commenters, broadcasters and public interest advocates agree that letters and emails from the
public should not be placed online due to privacy concerns and the burdens of review and redaction that
such concerns would necessitate.201 Some broadcasters believe that stations should maintain a
correspondence file available locally at the station,202 while others think we should eliminate the
requirement entirely.203 Common Frequency argues that privacy concerns are exaggerated, since it is


(…continued from previous page)
Times Gadget Blog describes Dropbox as "a file syncing service that allows you to sync a single folder (or folders)
between multiple computers." See http://gadgetwise.blogs.nytimes.com/2011/07/27/3-ways-to-keep-your-data-with-
you-at-all-times/.
197 NAB Comments at 21.
198 FNPRM at ¶ 26. Section 73.3526(e)(9) requires commercial stations to place in the public file all “written
comments and suggestions received from the public regarding operations of the station, unless the letter writer has
requested that the letter not be made public or when the licensee feels it should be excluded from public inspection
because of the nature of its content, such as a defamatory or obscene letter.”
199 Id. The Commission also sought comment about whether other public file information raises similar privacy
concerns. We received very little input on this issue, and will not make any other privacy-based exemptions to the
online public file. Our Privacy Threshold Analysis (“PTA”) of the online files indicates that the files to be posted
may contain personally identifiable information (“PII”). Consequently, the Commission will be preparing a Privacy
Impact Analysis (“PIA”) and a Privacy Act system of records notice (“SORN”) to govern the handling of PII in the
station files.
200 Id.
201 Four Commercial and NCE Licensees Comments at 4; Network Station Owners Reply at 20; North Carolina
Assn. of Broadcasters et al. Comments at 14; PIPAC Comments at 28-29.
202 North Carolina Assn. of Broadcasters et al. Comments at 14.
203 Network Station Owners Reply at 20.
32

Federal Communications Commission


FCC 12-44

common for members of the public to comment on publicly available websites.204
63.
We are concerned that requiring correspondence to be placed in the online public file may
result in violations of the Children’s Online Privacy Protection Act (COPPA), which prohibits posting
children’s personally identifiable information online.205 Commenters agree with our privacy concerns.206
Our review of the public files in the Baltimore DMA indicates that letters and emails from the public can
account for up to one third of a station’s public file. Thus, requiring stations to review these documents
for compliance with COPPA before uploading them to the online public file could pose a burden, which
our decision avoids. Therefore, we will not require stations to post this information in the online public
file.
64.
At the same time, we do not believe that the requirement to retain correspondence from
the public should be eliminated entirely. Letters and emails are required to be made available to the
public under our rules, and this proceeding is about updating the accessibility of the public file, not about
changing its underlying requirements. We will require stations to maintain in a paper file, or
electronically on a computer located at the main studio, a publicly available correspondence file at the
station. As currently required, this file will include all letters and emails from the public regarding
operation of the station unless the letter writer has requested that the letter not be made public or the
licensee feels that it should be excluded due to the nature of its content, such as a defamatory or obscene
letter.207 We emphasize that we are not imposing a new requirement here, but merely retaining the
existing requirement for retaining correspondence consistent with our rules.
65.
The FNPRM also sought comment on a proposal by PIPAC to require stations to report
quarterly on how many letters they have received from the public.208 PIPAC was the only supporter of
this proposal.209 Another commenter noted that such reporting would be burdensome for broadcasters,
some of whom receive thousands of pieces of viewer correspondence in a year.210 We are not persuaded
that a mere count of letters received would be of substantial value to the public or the Commission. We
thus conclude based on the current record that the burdens of tabulating and reporting on such
correspondence cannot be justified, and we do not require it.
66.
The Commission also sought comment on whether stations should have to retain
comments left by the public on social media websites, like Facebook, and tentatively concluded that such
information should not be required to be maintained in the correspondence file.211 Those who addressed
this issue agree with our tentative conclusion that, because social media posts are already accessible to the


204 Common Frequency Comments at 4.
205 Children’s Online Privacy Protection Act, 15 U.S.C. § 6501 et seq.
206 Network Station Owners Reply at 20; NAB Reply at 6; North Carolina Assn. of Broadcasters et al. Comments at
14.
207 See 47 C.F.R. § 73.3526(e)(9). We also note that NCE commenters have requested that we clarify that
noncommercial educational stations are not required to retain letters and emails in their public inspection files.
APTS and PBS Comments at 6; Public Television Licensees Reply at 4. This request for clarification stems from an
inadvertent error in the draft rules published in the FNPRM. We confirm that NCE stations are not required to retain
letters and emails from the public, and note that the rule changes in Appendix A reflect this.
208 FNPRM at ¶ 26.
209 PIPAC Comments at 29.
210 North Carolina Assn. of Broadcasters et al. at 14.
211 FNPRM at ¶ 26.
33

Federal Communications Commission


FCC 12-44

public, the burden of requiring stations to place such material in a correspondence file would outweigh
any benefit.212 We adopt this assessment, and will not require stations to retain social media messages in
their correspondence file.
67.
Common Frequency suggests that email comments to the station can be standardized for
all stations through a comment form on the Commission-hosted public file website, and all commenters
could be directed to this form.213 We decline to adopt this requirement. We do not believe that the
Commission is the proper forum to shape the dialogue between a local station and its viewers. Rather, we
seek to encourage direct communication between the station and its viewers. As discussed below, the
online public file will contain contact information for each station.214 We encourage members of the
public to relay their concerns directly to the station.
3.

Other Components of the Online Public File.

68.
Contour maps. We adopt the tentative conclusion that the contour maps available on the
Commission’s website are sufficient for the online public file. Our rules require that the public file
contain “[a] copy of any service contour maps submitted with any application tendered for filing with the
FCC, together with any other information in the application showing service contours and/or main studio
and transmitter location.”215 In the FNPRM, the Commission noted that maps showing stations’ service
contours are available on the Commission’s website, and are derived from information provided by
stations in CDBS.216 The Commission tentatively concluded that these contour maps available on the
Commission’s website are sufficient for the online public file as they provide the necessary information
regarding a station’s service contours.217 Only one commenter discussed this issue, agreeing with the
Commission that these contour maps are sufficient.218 We ask that stations review these maps and contact
the Media Bureau if they believe they contain any inaccuracies.
69.
Main Studio Information. We will adopt the proposal in the FNPRM219 that we require
stations to include in the online public file the station’s main studio address and telephone number, and the
email address of the station’s designated contact for questions about the public file. Given that the
correspondence file will still be publicly available at the station, along with the existing political file (until
its retention period expires in two years), and because we seek to encourage an open dialogue between
broadcasters and the viewing public, we believe this information is necessary to assist the public.220
Stations with a main studio located outside of their community of license should list the location of the


212 Bouchard Broadcasting at 1; North Carolina Assn. of Broadcasters et al. at 14. One commenter stated that it does
not retain email as letters from the public. This is contrary to the existing rule, which specifically states that letters
and email from the public must be included in the public file. See 47 C.F.R. 73.3526(e)(9).
213 Common Frequency Comments at 4.
214 See ¶ 69, infra.
215 47 C.F.R. §§ 73.3526(e)(4), 73.3527(e)(3).
216 FNPRM at ¶ 27. More information on contour maps is available at
http://transition.fcc.gov/mb/audio/includes/78-mapinfo.htm.
217 Id.
218 Bouchard Broadcasting Comments at 1.
219 FNPRM at ¶ 32.
220 See FNPRM at ¶ 32.
34

Federal Communications Commission


FCC 12-44

correspondence file and existing political file, and the required local or toll free number.221
70.
The Public and Broadcasting manual. We adopt the tentative conclusion that television
stations will no longer be responsible for making available “The Public and Broadcasting” manual in their
public files. We received no comment on this issue. As discussed in the NPRM, the Commission will
make this manual prominently available on the Commission-hosted online public file website once it is
created.222 The staff is directed to ensure that this manual is updated to reflect the online public file
requirements we adopt here.
71.
Issues/programs lists. We adopt the proposal requiring stations to post their
issues/programs lists to the online public file until the Commission adopts changes to this requirement.
Broadcasters’ public files currently must include issues/programs lists, which are lists of programs that have
provided the stations’ most significant treatment of community issues during the preceding quarter.223 The
Commission stated in the FNPRM that it planned to expeditiously seek comment in a new proceeding to
investigate replacing the issues/programs list with a standardized disclosure form, which it did last
November in a Notice of Inquiry.224
72.
In that Notice of Inquiry, the Commission noted that it remains dedicated to addressing the
problem of the lack of access to consistent and uniform information about television broadcasters’
programming.225 Despite the shortcomings of the current state of the issues/programs lists, however, for
now this is the best source of information the public has when investigating how a broadcaster’s
programming is meeting the community’s needs and interests. A group of stations commenting as Four
Commercial and NCE Licensees argues that the public has minimal interest in viewing this information,
and until there is a standardized reporting form, issues/programs lists should not be placed online because
they are voluminous and might include program guides that may not be easily uploaded.226 We disagree
that the public has minimal interest in viewing this information. Public advocacy commenters PIPAC and
Common Frequency point out that issues/programs lists are the only requirement that broadcasters have to
disclose how they are providing community-responsive programming, and agree with the Commission


221 See 47 C.F.R. § 73.1125(e). Joint TV Broadcasters argues that if access to the public file is to be facilitated by
means of online posting, the justification for government regulation of a station’s main studio location, at a
minimum, erodes substantially. Joint TV Broadcasters Comments at 18. We disagree with this assertion, which is
in any event beyond the scope of this proceeding. The Commission has previously stated that a main studio is
necessary to maintain reasonable accessibility of station facilities, personnel, and information to members of the
station's community of license, which enables the residents of the community to monitor a station's performance,
encourages a continuing dialogue between the station and its community, and integrates a station into the activities
of the community in order to be more responsive to local community needs in its programming. See Review of the
Commission's Rules regarding the Main Studio Rule and Local Public Inspection Files of Broadcast Television and
Radio Stations
, Report and Order, 13 FCC Rcd 15691, ¶ 1 (1998), recon. granted in part, Memorandum Opinion
and Order, 14 FCC Rcd 11113 (1999). Although as a result of our action today most required information about the
station will be available online, the other benefits cited here, as well as access to the elements of the public file that
will not be posted online, continue to support maintenance of a local main studio.
222 FNPRM at ¶ 28.
223 47 C.F.R. §§ 73.3526(e)(11)(i), 73.3527(e)(8).
224FNPRM at ¶ 6. See also Standardizing Program Reporting Requirements for Broadcast Licensees, Notice of
Inquiry, 26 FCC Rcd 16525 (2011).
225 Standardizing Program Reporting Requirements for Broadcast Licensees, Notice of Inquiry, 26 FCC Rcd 16525,
¶ 9 (2011).
226 Four Commercial and NCE Licensees Comments at 5.
35

Federal Communications Commission


FCC 12-44

that these lists should be posted to the online public file on a quarterly basis until the Commission
implements a new standardized form.227 When creating the issues/programs list requirement, the
Commission declared that one of a broadcaster's fundamental public interest obligations is to air
programming responsive to the needs and interests of its community of license, and described the
issues/programs list as “[t]he most significant source of issue-responsive information under the new
regulatory scheme.”228 Moreover, the list is a significant source of information for any initial
investigation by the public or the Commission when renewal of the station’s license is at issue.229
Because of the importance of the issues/programs lists, we conclude that any burden imposed upon
broadcasters to upload such information is justified, and find that the lists must be available to the public
in the online public file.
73.
FCC investigations and complaints. Our rules currently require that stations retain in the
public file “material having a substantial bearing on a matter which is the subject of an FCC investigation or
complaint to the FCC” of which the station is aware.230 The Commission sought comment in the FNPRM
on whether the Commission should post published sanctions, including forfeiture orders, notices of
violation, notices of apparent liability, and citations, in a station’s online public file.231 The Commission
also asked whether licensees should be required to upload their responses, if any, to such Commission
actions.232 The Commission noted that this is the sort of information that the public would want to find in
reviewing a licensee’s public file, that this is a natural extension of the requirement to retain Commission
correspondence, and that parties could seek confidential treatment of particular information in the filings,
if necessary.233 Common Frequency argues that the Commission should require broadcasters to post all
materials relating to complaints, petitions, and Commission orders, because the public has a right to know
how a broadcaster is conducting its business.234
74.
The public is entitled to review information regarding Commission investigations and
complaints and we consider the scope of the disclosure rule for this material to be quite broad, although we
also recognize that premature publication can hamper an investigation and that privacy concerns counsel
some limitations on the online posting of some of this information. We conclude that, subject to any
disclosure limitation included in a Commission inquiry itself or directed by the staff, the online public file
must include Letters of Inquiry (“LOI”), any supplements thereto, and any other correspondence from the
Commission commencing an investigation, materials related to such inquiries, licensee responses to these
Commission inquiries, and any documents – including Commission orders – terminating or concluding the
investigation or imposing penalties as a result of the investigation. We agree that public access to this type
of information concerning a station – information that could be key to a full understanding of a station’s
performance of its duties as a licensee – is important and conclude that it must be placed in a station’s online
public file. This material is relevant to any member of the public that wishes to participate in a station’s
license renewal process or to otherwise review and evaluate the service a station is providing to its


227 PIPAC Comments at 28; Common Frequency Comments at 5.
228 Revision of Programming and Commercialization Policies, Ascertainment Requirements, and Program Log
Requirements for Commercial Television Stations
, Report and Order, 98 FCC 2d 1076, at ¶ 76 (1984).
229 Id. at at ¶ 77.
230 47 C.F.R. §§ 73.3526(e)(10); 73.3527(e)(11).
231 FNPRM at ¶ 30.
232 Id.
233 Id.
234 Common Frequency Comments at 5.
36

Federal Communications Commission


FCC 12-44

community of license. We will therefore adopt the tentative conclusion in the FNPRM that stations’ online
public files should contain all material relating to a Commission investigation. Unless directed to the
contrary by the Commission (in an LOI or otherwise), stations will be responsible for uploading any
materials related to a Commission investigation or inquiry that they generate or possess (such as
responses to LOIs and relevant documents related to an investigation). To reduce burdens on stations, the
Commission, as it deems appropriate, will post to the online public file any material that it originates
relating to an investigation, such as LOIs and other investigative requests. The Commission will also post
to the online public file any complaint or complaints that it possesses and that underlie an investigation, if
doing so is feasible, will not interfere with or obstruct an investigation and disclosure is consistent with
any privacy concerns that publication might raise. When there are circumstances in investigatory and
enforcement contexts that would weigh against the disclosure of Commission investigations and related
materials, the Commission or the staff may inform a licensee that a Letter of Inquiry or request for
information or other material related to a particular investigation need not be placed in the public file or
uploaded to the online public file.235
75.
With respect to complaints that have not prompted an LOI or other investigative request,
whether filed with the Commission or submitted only to the station, we believe local retention in the
station’s correspondence file is appropriate. We conclude, as a general matter, that privacy concerns
weigh against routine online posting of these complaints.236
76.
A few commenters argued that the Commission should not require broadcasters to include
information about erroneous or meritless allegations in the online public file.237 They argue that these
claims may be unsubstantiated, and that persons with interests adverse to a broadcaster would have an
incentive to file false or irrelevant complaints to establish a record tarnishing the broadcaster’s character
that could be used against it in the license renewal process, and that the increased accessibility to such
false claims will increase such incentives.238 As discussed above, we are not requiring stations to include
complaints that are not the subject of a Commission investigation in their online public files, though they
are required to include them in their local correspondence files unless the Commission specifies
otherwise. We believe that commenters’ concern about erroneous or meritless allegations is adequately
addressed by allowing stations to include their responses to such complaints in their correspondence
files.239 As the Commission and the courts are the final arbiters of whether allegations are meritorious, we
will not allow individual stations to decide whether particular investigations and complaints against them
should be kept out of the public file.


235 In the FNPRM, the Commission acknowledged concerns expressed in reconsideration petitions about posting to the
online public file any material that is the subject of an indecency investigation or complaint, and tentatively
concluded that such concerns were unfounded because such material is relevant to the renewal process and the
Commission already posts information relating to indecency investigations, such as Notices of Apparent Liability
and Forfeiture Orders, on its website. FNPRM at ¶ 30. As is the case today, stations filing responsive materials
subject to a confidentiality request may place copies of their filings into the online database with the confidential
material redacted. See 47 C.F.R. § 0.459.
236 The Commission or relevant Bureaus on delegated authority, however, may expressly direct a licensee to post
such complaints – ones not related to any Commission investigation or inquiry – to the online public file, or it may
do so itself, if circumstances warrant.
237 Bouchard Broadcasting Comments at 2; Joint Television Parties Reply at 23; Four Commercial and NCE
Licensees Comments at 5.
238 Joint Television Parties Reply at 23.
239 As discussed above, stations are required to include in their public files responses to Commission investigations,
unless directed otherwise in the LOI.
37

Federal Communications Commission


FCC 12-44

77.
EEO and Children’s Requirements. Under the Commission's equal employment
opportunity (“EEO”) rules, all broadcast stations that are required to create an EEO public file report are
also required to place their most recent annual report in their public file and post a link to the report on
their website, if they have a website.240 This requirement was established in order to facilitate meaningful
public input, as the public has a “right to participate in the process of monitoring and enforcing our EEO
Rule, which directly impacts them.”241 We will continue to require that stations make their EEO materials
available on their websites, if they have one. In an effort to reduce burdens on broadcasters, however, we
will permit stations to fulfill this website posting requirement by providing on their own website a link to
the EEO materials on their online public file page on the Commission’s website.
78.
Similarly, in light of our decision in this Order to require stations with websites to
provide a link to the online public file on their homepage,242 we will not require that stations with
websites also post copies of their Children’s Television Programming Reports (FCC Form 398) on their
websites. In the Further Notice of Proposed Rulemaking in MM Docket No. 00-44, the FCC sought
comment on whether broadcasters should be required to provide their completed Form 398s on their own
websites.243 Members of the public interested in viewing a station’s Form 398 will be able to locate that
filing from the online public file and, therefore, we do not believe it is necessary to require stations to
post the forms on their own websites.
79.
Existing Public File Sponsorship Identification Requirements. Although, as discussed
below, we do not impose new sponsorship identification reporting requirements, we also do not exempt
existing public file requirements regarding sponsorship identification from the online posting
requirement. Specifically, we decline the request by the National Religious Broadcasters (“NRB”) to
exempt from the online public file the disclosure of material required in Section 73.1212(e) of our rules –
namely, where “material broadcast is political matter or matter involving the discussion of a controversial
issue of public importance and a corporation, committee, association or other unincorporated group, or
other entity is paying for or furnishing the broadcast matter,” stations must disclose “a list of the chief
executive officers or members of the executive committee or of the board of directors of the corporation,
committee, association or other unincorporated group, or other entity.”244 Requiring that this information
be included in the online public file should impose little burden on broadcasters, as this information is
already being maintained in the local file.245


240 47 C.F.R. § 73.2080(c)(6).
241 Review of the Commission's Broadcast and Cable Equal Employment Opportunity Rules and Policies, 17 FCC
Rcd. 24018, ¶ 140 (2002), recon. pending.
242 See Section III.F., infra.
243 See Extension of the Filing Requirement For Children’s Television Programming Reports (FCC Form 398),
Report and Order and Further Notice of Proposed Rulemaking, 15 FCC Rcd 22921, 22930, ¶¶ 25-27 (2000). See
also 2007 Report and Order
, 23 FCC Rcd at 1283, ¶ 23, vacated, 26 FCC Rcd 15788, ¶ 59 (2011).
244 47 U.S.C. § 317(a)(1); 47 C.F.R. § 73.1212(e). We note that the rule also states that “[i]f the broadcast is
originated by a network, the list may, instead, be retained at the headquarters office of the network or at the location
where the originating station maintains its public inspection file.” In addition, Section 315(e) of the Act, added by
BCRA, requires that with respect to messages relating to any “political matter of national importance,” the political
file must contain “the name of the person purchasing the time, the name, address, and phone number of a contact
person for such person, and a list of the chief executive officers or members of the executive committee or of the
board of directors of such person.” 47 U.S.C. § 315(e)(2)(G). This information must be included in the political
file, and therefore must be posted to the online file along with other political file information.
245 See fn. 201, supra, indicating the steps we will be taking to address the PII in the station files to be posted.
38

Federal Communications Commission


FCC 12-44

80.
In addition, we reject NRB’s argument that making such lists available via the Internet
will violate citizens’ First Amendment rights to enjoy a level of privacy and anonymity regarding their
political, social, moral, and religious values and beliefs, and associations.246 NRB argues that this will
have a chilling effect on citizens’ willingness to participate in political campaigns.247 PIPAC responds
that making such already-public records available via the Internet does not change the substance of the
existing retention requirement.248 We agree.249 We also agree with PIPAC that courts, in evaluating First
Amendment challenges, have embraced disclosure of sponsors of political advertisements as promoting
speech and discussion, not chilling it. As the Supreme Court stated in Citizens United v. FEC,
“transparency enables the electorate to make informed decisions and give proper weight to different
speakers and messages” and that “[w]ith the advent of the Internet, prompt disclosure of expenditures can
provide shareholders and citizens with the information needed to hold corporations and elected officials
accountable for their positions and supporters.”250 Similarly, the First Circuit determined that state laws
requiring disclosure of the names of board members on political action committees “neither erect a barrier
to political speech nor limit its quantity. Rather, they promote the dissemination of information about
those who deliver and finance political speech, thereby encouraging efficient operation of the marketplace
of ideas.”251
4.

Proposals to Increase the Public File Requirement Rejected.

81.
We decline to adopt any new disclosure obligations with respect to sponsorship
identifications and shared services agreements at this time. While we continue to believe that the public
would likely benefit from further information regarding sponsorship identifications and shared services
agreements as discussed in the FNPRM,252 we believe it inadvisable to impose new reporting requirements
at the same time stations are transitioning to the online public file. We wish to ensure that this Second
Report and Order,
in all major respects, involves changing only the form of disclosure and location of
material already required to be included in the public file. We discuss both of these categories below.
82.
Sponsorship Identifications. We will not at this time require new written disclosure of
sponsorship identifications in the online public file, as proposed in the FNPRM. Section 317 of the
Communications Act requires that broadcasters disclose to their listeners or viewers at the time of
broadcast whether material was aired in exchange for money, services, or other valuable consideration.253
The Commission’s sponsorship identification rules implement these provisions and require that stations


246 National Religious Broadcasters Comments at 9-12. See also Ex Parte Presentation of Target Enterprises at 15-
16 (filed April 19, 2012).
247 Id. at 11.
248 PIPAC Reply at 11.
249 In addition, we find NRB’s argument that this disclosure will chill citizens’ speech overstated, as the disclosure
requirement in Section 73.1212(e) of our rules applies to executives and board members of sponsoring
organizations; it does not relate to individuals’ campaign contributions or other political activities. 47 C.F.R. §
73.1212(e). We note also that the FEC requires candidates committees to report to the FEC the identity of
individuals who contribute more than $200 to a candidate’s campaign. 2 U.S.C. § 434(b)(3). The identity includes
the individual’s name, mailing address and occupation, as well as the name of his or her employer. 2 U.S.C. §
431(13)(A).
250 Citizens United v. Federal Election Commission, 130 S.Ct. 876, 916 (2011)
251 National Organization for Marriage v. McKee, 649 F.3d 34, 40 (1st Cir. 2011).
252 FNPRM at ¶ 31. See also INC Report at 28, 349.
253 See 47 U.S.C. § 317.
39

Federal Communications Commission


FCC 12-44

provide an on-air disclosure when content is paid for, furnished, or sponsored by an outside party.254 With
the exception of sponsored political advertising, and certain issue advertising that must be disclosed in
writing, these rules require that stations make an on-air disclosure only once during the programming and
that the disclosure remain on the screen long enough to be read or heard by an average viewer.255 The
FNPRM noted that the INC Report discussed examples of “pay-for-play” arrangements at local TV
stations, where “advertisers have been allowed to dictate, shape or sculpt news or editorial content.”256
83.
While we agree with commenters that additional written sponsorship disclosures – posted
to a station’s public file – would benefit the public by addressing the shortcomings of sometimes fleeting
on-air disclosures and would provide valuable information that is otherwise difficult to collect,257 we are
also persuaded that we lack sufficient information at this time to properly evaluate the burden that
complying with this requirement would impose.258
84.
Sharing Agreements. We also decline to adopt the tentative conclusion that stations
include sharing agreements in the online public file. In the FNPRM, the Commission asked whether
sharing agreements among licensees, such as local news sharing and shared services agreements, should
be available in the online public file.259
Some broadcasters argue that the disclosure of sharing agreements is beyond the scope of this proceeding,
and should be considered in a separate proceeding.260 They argue that the Commission must first solicit
comment and determine the legal status of such agreements.261 They argue that there has been no
determination that shared services agreements are relevant to compliance with any Commission rules or
standards, unlike time brokerage agreements and joint sales agreements, which the Commission has
deemed to have attribution implications, and which are required to be placed in the public file.262 Some
note that the recent 2010 Quadrennial Review seeks comment on sharing agreements, and argue that it


254 See 47 C.F.R. § 73.1212.
255 The implementing rule has long had an additional public file recordkeeping component for political and
controversial issue announcements, as discussed further below.
256 FNPRM at ¶ 33, citing INC Report at 349. Despite our decision not to add new reporting requirements, we
continue to believe that issues pertaining to sponsorship identification and “pay-for-play” are important. We will
continue to monitor the use of these practices, and enforce the statute as appropriate. See Fox Television Stations,
Inc
., Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 3964 (Enf. Bur. 2011) (finding that Fox's airing of the
VNR material on Station KMSP-TV's June 19, 2006, news program without the required sponsorship identification
announcement constituted an apparent violation of Section 317 of the Act and Section 73.1212 of the Commission's
rules), aff’d, Forfeiture Order, 26 FCC Rcd 9485 (Enf. Bur. 2011) (forfeiture paid); Access.1 New Jersey License
Co., LLC
, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 3978 (Enf. Bur. 2011) (finding that Access.1's
airing of the VNR material on Station WMGM-TV's October 18, 2006 news program without providing a
sponsorship identification announcement was an apparent violation of Section 317 of the Act and Section 73.1212 of
the Commission's rules) (forfeiture paid).
257 PIPAC Comments at 22, Reply at 19. See also Glenn Frankel at 2; Association for Education in Journalism and
Mass Communication Reply at 1; Association of Healthcare Journalists Reply at 1; Free Press Reply at 1.
258 Joint TV Broadcasters Comments at 11; Bouchard Broadcasting Comments at 2; Four Commercial and NCE
Licensees Comments at 5.
259 FNPRM at ¶ 35.
260 NAB Comments at 28, Replies at 27; Joint Broadcasters Comments at 20; Joint Television Parties Reply at 20.
261 Joint Broadcasters Comments at 21; Joint Television Parties Reply at 20.
262 Joint Broadcasters Comments at 20; NAB Reply at 28.
40

Federal Communications Commission


FCC 12-44

would be premature to require disclosure of sharing agreements prior to the conclusion of that review.263
We disagree that the Commission must first address the appropriate regulatory status of such agreements
prior to requiring their disclosure, as disclosure itself could inform those decisions and the Commission
has wide latitude to impose such a requirement.264 Nonetheless, we decline to impose this new
requirement on broadcasters as they transition to the online public file. We will continue to monitor this
issue, and revisit a disclosure requirement either in this proceeding, or in the ownership proceeding, as
suggested by broadcasters.265

D.

Format of the Online Public File.

85.
We will not establish specific formatting requirements for documents posted to the
online public file at this time. Some commenters promoted making the data well-structured,266 as
searchable as possible,267 and downloadable.268 PIPAC argues that the online public file should be
searchable by text within the documents, and also by station, state, date, element of the public file and any
other metadata contained in the file.269 They further argue that the file should provide an easy-to-use
graphic interface in addition to an API, as these both provide searching and downloading of documents
and metadata en mass.270 We agree that certain information in the public file would be of much greater
benefit to the public if made available in a structured or database-friendly format that can be aggregated,
manipulated, and more easily analyzed; this continues to be our ultimate goal.271 We agree with PIPAC,
however, that converting the files to this format would take time and money, and the online public file
should not be delayed in order to make all of the material in it available in such a manner.272 PIPAC
argues that this will likely result in the submission of documents in non-searchable, non-machine readable


263 Joint Broadcasters Comments at 20.
264 See 47 U.S.C. § 303(j); Office of Communications of United Church of Christ v. FCC, 779 F.2d 702, 707 (D.C.
Cir. 1985) (“There is no question but that the Commission has the statutory authority to require whatever
recordkeeping requirements it deems appropriate.”).
265 Because we decline to adopt this requirement, we will not address comments pertaining to the scope of shared
services agreements covered by this proposal. See, e.g., American Cable Assn. Comments at 14-15; Time Warner
Cable Reply at 12-13.
266 Ryan Thornburg Comments.
267 Time Warner Cable Reply at 13.
268 Common Frequency Comments at 6; PIPAC Comments at 29.
269 PIPAC Comments at 29. In addition, the INC Report finds that information “needs to be put out in standardized,
machine-readable, structured formats that make it easy for programmers to create new applications that can present
the data in more useful formats, or combine one agency’s information with another” INC Report at 207.
270 PIPAC Comments at 29-30. The INC Report states that “data releases should include an Application
Programming Interface (API) that allows the data to be shared easily with other computers and applications.” With
respect to broadcasters’ public files in particular, the INC Report states that “[o]nline disclosure should be done
according to the principles advocated by experts on transparency: in standardized, machine readable and structured
formats.” INC Report at 207, 348.
271 We note that the Commission is part of the Task Force on Smart Disclosure: Information and Efficiency in
Consumer Markets, established by the National Science and Technology Council Committee on Technology. The
Task Force is investigating best practice approaches to “smart disclosures,” which are disclosures to consumers that
are accessible and usable, such as in electronic, machine readable formats. See
http://wiki.citizen.apps.gov/SmartDisclosure/images/5/55/NSTC_Charter_v15-25-11.pdf.
272 PIPAC Comments at 30. See also FNPRM at ¶ 37.
41

Federal Communications Commission


FCC 12-44

format, but it believes this proposal represents a reasonable trade-off between maximizing searchability
and the need to expedite access to broadcasters’ online public files.273 We agree that this trade-off is
reasonable, and adopt the Commission’s tentative conclusion that the benefits of an online public file
should not be delayed. At this time we therefore will not require broadcasters to undertake the burdens of
altering the form of documents already in existence prior to posting them to the online public file.274 We
observe, though, that even without mandating that documents be filed in a particular format, our creation
of a centralized, orderly public file will facilitate search and analysis across all elements of stations’
public files.
86.
We adopt the FNPRM’s proposal to require stations to upload any electronic documents
in their existing format to the extent feasible.275 For example, to the extent that a required document
already exists in a searchable format – such as the Microsoft Word .doc format or non-copy protected
text-searchable .pdf format for text filings, or native formats such as spreadsheets in Microsoft .xml
format for non-text filings – broadcasters are expected to upload the filing in that format to the extent
technically feasible.276 PIPAC agreed with our proposal to require stations to file documents in their
native electronic format.277 We understand that it may be difficult for stations to provide older material
that has been in the public file for some time in its native format. In those instances, we understand that
stations may need to scan these materials for electronic upload into the online public file. We expect that
the need to do this will diminish over time.
87.
Also consistent with the FNPRM, the Commission will use optical character recognition
on public file materials that are scanned, and by default are non-searchable. The Commission asked in
the FNPRM whether, to the extent documents are posted in a non-searchable format, the Commission
should digitize the documents and perform optical character recognition (“OCR”) on them.278 PIPAC
agrees with the Commission’s suggestion that if a broadcaster posts a record in only a non-searchable
format, the Commission should use an OCR tool to permit maximum searchability.279 We determine that,
when appropriate, the Commission will use OCR.280
88.
Metadata. We will not require stations to create or preserve metadata in the online public


273 PIPAC Comments at 30.
274 Given our decision not to require documents to be converted to other formats for inclusion in the online file, we
find no need to consider NAB’s argument that we should convene a working group to explore formatting issues.
NAB Comments at 29-30. See also Bouchard Broadcasting Comments at 2 (advocating the use of MS Word .doc
over .pdf); Hubbard Broadcasting Comments at 2 (arguing that pdf should be considered compliant).
275 FNPRM at ¶ 37
276 Id. See also Amendment of the Commission's Ex Parte Rules and Other Procedural Rules, GC Docket No. 10-
43, Report and Order and Further Notice of Proposed Rulemaking, FCC 11-11, 26 FCC Rcd 4517, ¶¶ 49-52(2011).
277 PIPAC Comments at 29-30.
278 FNPRM at ¶ 37.
279 PIPAC Comments at 30-31. PIPAC notes that commonly available document formats - including Microsoft
Word .doc, .txt, .pdf or .odf - can be searched, and can easily be converted into a .pdf file that can be processed by
an OCR tool so the contents can be loaded into a searchable database. But commenter Ryan Thornburg notes that
OCR software is expensive and faulty, and prefers that the Commission require well-structured formats. Ryan
Thornburg Comments at 2. For the reasons discussed above, we decline to do so at this time.
280 OCR will be used when text cannot be extracted from the uploaded document format. When documents are
uploaded to the online public file, documents that are not in recognized formats will be automatically pushed into
OCR, which will scan the document to extract as much text as possible.
42

Federal Communications Commission


FCC 12-44

file. In the FNPRM, the Commission asked whether users should be able to determine when each item
was uploaded to the file, whether the Commission should make available metadata about who uploaded
the item, and if there were any concerns about metadata disclosures for confidential or privileged
information.281 NAB anticipates that many stations may use software that removes metadata from its
documents for reasons of confidentiality, privilege, or privacy, and does not see value in disclosing who
uploaded a document, other than differentiating between documents uploaded by the Commission versus
a station.282 The Sunlight Foundation noted that as long as each station provides contact information,
there is no need for the metadata to identify the individual who uploads a filing.283 We agree, and
determine that stations using software that removes metadata will not be required to make any
modifications. Given that we will be requiring station contact information, as discussed above, we do not
believe that it is necessary to make metadata information available as part of the online public file.
However, the Sunlight Foundation also argues that being able to identify the time and date of a filing is
important, as it helps to track the most recent version of a particular filing, and allows the user to create a
timeline of submitted files.284 This information, which is captured by the system as files are uploaded,
does not generate similar privacy concerns as the metadata contained within the documents uploaded by
stations. Our system may present information on the date and time of a filing to users.

E.

Implementation.

89.
Having concluded that broadcast television stations must upload the contents of their public
file, other than the political file and letters from the public, to a Commission-hosted online public file, we
next discuss issues relating to implementation of the new posting procedure. As with our consideration of
all the issues covered by this Order, our resolution of implementation issues is guided by a commitment to
creating an online public file experience that is not burdensome for broadcasters, and is as useful as possible
for the public.
90.
Cloud-Based Solution. We plan to develop the online public file in accordance with the
Federal Government’s “Cloud First Policy” which directs agencies to default to scalable and elastic,
cloud-based solutions for increased reliability at lower cost.285 The public file, consisting entirely of
publicly disclosed material, is ideal for leveraging the cloud-based hosting solutions. We anticipate being
able to design an online public file that is highly available, scalable, cloud-based, and eliminates any user
wait times associated with processing documents after upload. We expect that this will enable stations to
upload public file material in a timely fashion, including uploading political file material promptly even


281 Id. at ¶ 38.
282 NAB Comments at 30.
283 Sunlight Foundation Comments at 3. The Sunlight Foundation also argues that there should be a way for the
public to provide feedback to the broadcaster on the data in the filings. Id. We encourage an open dialogue between
users of public file data and broadcasters, but the initial phase of the online public file will only allow for
broadcasters and the Commission to upload information into each station’s online public file.
284 Sunlight Foundation Comments at 3.
285 Federal Cloud Computing Strategy, February 8, 2011 at 2, available at http://www.cio.gov/documents/federal-
cloud-computing-strategy.pdf. Scalable is defined as “[s]omething that can be made larger or smaller relatively
easily and painlessly.” Newton’s Telecom Dictionary (Steve Schoen, 25th ed. 2009) at 981. This will allow the
capacity of the system to grow and shrink based upon use. Cloud computing is “[a]n Internet-based or intra-net
based computing environment wherein computing resources are distributed across the network (i.e., the ‘cloud’) and
are dynamically allocated on an individual or pooled basis, and are increased or reduced as circumstances warrant,
to handle the computing task at hand. The user is blissfully unaware of where the computing resources reside.”
Newton’s Telecom Dictionary (Steve Schoen, 25th ed. 2009) at 286.
43

Federal Communications Commission


FCC 12-44

during times of increased traffic prior to elections.
91.
We disagree with broadcasters who argue that their experiences trying to file the revised
Form 323 ownership reports suggest a Commission-created database would suffer from implementation
problems.286 These commenters represent that it can take hours to upload just one attachment to the
revised Form 323, and that the political file contains similarly large documents. They argue that such
delays would be unacceptable with respect to the political file, where timely access is so important.287 We
agree that it is essential that stations are able to upload public file documents, and particularly political
files, efficiently, and that the online public file should be able to handle many stations uploading
documents at the same time even during an election season. We recognize problems stations have
experienced uploading the revised Form 323 and are working to fix those problems. But we do not
anticipate similar problems with respect to uploading the public file. The delays in the Form 323
uploading process stem from the time required in the current Form 323 filing application to validate the
large spreadsheets that must be filed with Form 323, and the validation queuing process. Public file
documentation will not be subject to the validation process that is required for the Form 323 spreadsheets,
nor will we need to impose a similar queuing system necessitated by the validation process. Furthermore,
Form 323 was launched and run on existing FCC infrastructure. Since then, the Commission has begun
utilizing scalable cloud-based IT architecture solutions to enhance the agency’s capabilities. In particular,
the Commission anticipates using for online public files the same scalable architecture that currently is
being used successfully for the Customer Proprietary Network Information certification document filing
system and the National Broadband Map.288
92.
Back-up Files. In lieu of requiring stations to maintain back-up copies of all public file
materials, as proposed in the FNPRM, the Commission will generate copies of their online files. With
respect to the political file, however, we will require stations to maintain local electronic back-up files to
ensure that, in the event our online public file were to become temporarily unavailable, they can comply
with their statutory obligation to make that information available to candidates, their representatives, non-
candidate political time buyers and the public generally as soon as possible. To minimize any burden
imposed by this requirement, we have developed tools to allow stations to easily copy mirrors of their online
public files, which contain the political files.
93.
In the FNPRM, the Commission proposed that stations retain electronic copies for back-up
purposes of all public file items in the event the Commission’s online public file were to become unavailable
or disabled.289 The Commission also proposed that in such circumstances, stations would have to make
these back-up files available to the public.290 We are persuaded by commenters, however, that requiring
stations to maintain back-up copies of all public file materials and to make them routinely available directly
to the public would reduce the efficiencies of placing the public file online.291 These commenters explain
that such an approach would force stations to continue maintaining a separate complete public file on site


286 Hubbard Broadcasting at 2-3; Joint Broadcasters at 2; Joint Television Parties Reply at 3.
287 Hubbard Broadcasting at 3.
288 See http://apps.fcc.gov/eb/CPNI/; http://broadbandmap.gov/.
289 FNPRM at ¶ 18.
290 Id.
291 Four Commercial and NCE Licensees Comments at 4; North Carolina Assn. of Broadcasters et al. Comments at
5-6; Broadcasting Licenses, L.P. et al. (“Joint TV Broadcasters”) Comments at 7 (arguing that requiring a back-up
political file will at least double the burdens of the proposed requirements). See also APTS and PBS Comments at
3; Alabama Educational Television Commission et al. (“Public Television Licensees”) Reply at 6.
44

Federal Communications Commission


FCC 12-44

so as to comply with the Commission’s rules at a moment’s notice.292
94.
To ensure that stations’ public files are available even if the Commission’s online public file
were to become temporarily unavailable or in the event technical problems prevented broadcasters from
accessing the Commission’s online file, we will create “failover”293 backups of the online public file,
including mirroring daily snapshots of the public file.294 That is, the Commission will make a mirror copy
of each station’s public file records daily to ensure that if the data in the online public file is
compromised, the public files can be reconstituted using the back-up copy. Thus, the Commission will
relieve stations of the burden of maintaining a back-up of the entire public file locally. In addition, with
the exception of the political file, discussed below, will not make stations responsible for making available
to the public information from the public file in the event the Commission’s online files become temporarily
inaccessible;295 the mirroring approach will enable us to perform the back-up function ourselves. To the
extent the public may experience a delay in accessing the information due to the brief unavailability of the
online file, we consider that delay (with the exception of the political file), on balance, to be acceptable in
order not to burden broadcasters with the necessity of making public file materials available to the public
at the station. If the Commission’s online file becomes temporarily inaccessible to stations for the
uploading of new documents, however, stations must maintain those documents and upload them to the
online file once it becomes available again for upload. The Commission will also daily make the mirror
copy of every station’s public file available for the station or other interested parties to download so that,
if they wish, they can periodically download a complete mirror of their public file or automate a periodic
synchronization.
95.
As suggested in the FNPRM, we conclude that additional steps should be taken to ensure
that access to the political file is not compromised.296 Accordingly, if the Commission’s online public file
were to become temporarily unavailable, stations will be required to provide any information pertaining
to the political file not just to candidates, their representatives and other political time buyers, but directly
to any member of the public as well. The benefits of making such information available immediately
outweigh the burdens of maintaining this limited back-up requirement. Given the short seven-day
deadline for candidates to request equal opportunity appearances,297 it is essential to candidates’ exercise
of their rights under the Act that they have prompt access to political file information. Moreover, limiting
that access to candidates and their representatives would be inconsistent with the Communications Act,
which requires that political file information shall be “available for public inspection” and “placed in a
political file as soon as possible.”298 These requirements do not distinguish between candidates and their
representatives and other members of the public. In addition, although only candidates have rights to


292 APTS and PBS Comments at 3.
293 Failovers are defined as “[w]hen one individual computer fails, another automatically takes over its request load.
The transition is invisible to the user. Failover involves switching off the failed redundant component and switching
on the backup unit. A disk subsystem is running in failover mode when it switches to a hot spare or begins to use the
backup disk in a mirrored pair.” See Newton’s Telecom Dictionary (Steve Schoen, 25th ed. 2009) at 460.
294 See Common Frequency Comments at 2.
295 Although we will not require stations to maintain back-up copies of the public file, stations are free to maintain
back-up materials and to continue to make the public file available locally or on their own website, in addition to on
our website, if they choose to do so.
296 FNPRM at ¶ 18.
297 47 U.S.C. § 315(a), 47 C.F.R. § 73.1941.
298 47 U.S.C. § 315(e)(1), (3); see also 47 C.F.R. § 73.1943 (requiring the same, and stating that “[a]s soon as
possible means immediately absent unusual circumstances”).
45

Federal Communications Commission


FCC 12-44

equal opportunities and lowest unit charge under Section 315,299 other members of the public may also
have time-sensitive needs to access a station’s political files. For example, a sponsor of a political issue
advertisement may have a significant interest in ascertaining which candidates or other issue
advertisement sponsors have bought time at a station.
96.
The Commission is taking all steps necessary to ensure that the Commission-hosted
online public file will not become unavailable, and we expect instances of unavailability to be both rare
and of short duration. As a result, we do not expect the requirement to provide back-up access to the
political file during any times of outages to be overly burdensome. In addition, we will allow stations to
retain such information in whatever form is most convenient for them. Our making mirror copies of
stations’ public files available to stations, as described above, will enable stations to comply with the
political file back-up requirement with little burden. That is, while not required, stations may choose to
meet the political file back-up requirement by periodically downloading a mirror copy of the public file.
When choosing this option, stations will need to ensure that they retain any political file records that have
not been uploaded or were uploaded after their last download of a mirror copy of their online public file.
This means that if a station decides to download a mirror copy of their online public file on a weekly basis,
it will need to maintain at the station, in paper or electronic form, any documents that have not been
uploaded or that it uploaded to the online political file after its last weekly download. If a station chooses to
download a mirror copy of their online public file on a monthly basis, it will need to maintain at the station
any documents that have not been uploaded or that it uploaded to the online political file after its last
monthly download. If a station chooses not to download a mirror copy of their online public file, and does
not otherwise satisfy the back-up requirement, it will need to maintain at the station all documents required
to be in its online political file. We stress that stations will only be required to make these backups available
if and during such time as the Commission’s online public file is unavailable, which we believe will only
happen in rare instances, such as national or localized emergencies, because the Commission will follow
necessary protocols for creating failover backups of the online public file.
97.
Compliance Dates. In order to facilitate a smooth transition to the online public file, we
will provide a phase-in period for stations to begin uploading files. Stations will be required to begin
using the online public file after the effective date of this Order, which is 30 days after the Commission
announces in the Federal Register that OMB has completed its review under the Paperwork Reduction
Act and approved the collection.300 After the effective date, if a station determines that any document
must be placed in the public file, that document must be posted to the online public file. We refer to this
as the requirement to post documents online “on a going-forward basis.” In order to ensure that
broadcasters have time to familiarize themselves with the online public file, the Commission will make a
version available to the public soon after adoption of this item. We also instruct the staff to help educate
broadcasters about the online public file and how it functions.
98.
To ensure that existing public file materials – that is, the public file as it exists prior to the
effective date – are uploaded to the online public file in an orderly manner, we will give broadcasters
sufficient time to do so. Stations will be permitted to begin uploading existing public file materials
immediately after the effective date, at the same time stations must also begin posting online documents


299 47 U.S.C. § 315(a), (b).
300 Pub. L. No. 104-13. The Commission previously sought comment on the paperwork burden associated with
these proposals. See 76 FR 72144 (Nov. 22, 2011). Because the Order today substantially adopts the item as
proposed in the FNPRM, with the exception of a few proposed collections that we are declining to impose, a 30 day
public comment cycle will be appropriate. 5 CFR 1320.11(h). The Commission will publish a notice in the Federal
Register regarding the reduced paperwork burdens adopted in this Order. The OMB review process will then
commence.
46

Federal Communications Commission


FCC 12-44

on a going-forward basis. Stations must complete the process of uploading the existing public file within
six months after the effective date, i.e., six months after the Commission publishes a notice in the Federal
Register announcing OMB approval under the Paperwork Reduction Act. We believe that giving stations
six months to complete the upload of existing files will provide broadcasters adequate time and flexibility
to undertake this process.
99.
Accessibility for People with Disabilities. In the FNPRM, the Commission stated that it
intended to ensure that the online public files, like the rest of the Commission’s website, is accessible to
people with disabilities. Under Section 508 of the Rehabilitation Act, federal agencies must ensure that
members of the public who have disabilities and who are seeking information or services from a federal
agency “have access to and use of information and data that is comparable to the access to and use of the
information and data by such members of the public who are not individuals with disabilities.”301 For
federal agencies, including the Commission, this requires access by people with disabilities to the
agencies’ websites, including electronic filing systems, such as the Commission’s ECFS. In the FNPRM,
we sought comment on whether further actions were necessary to ensure compliance with respect to the
online public file. No commenters raised concern about this issue. To assure compliance, the Commission
will perform accessibility tests and address any known issues once the online public file has been created.
We believe that Commission compliance with the requirements imposed by Section 508 of the
Rehabilitation Act will be sufficient to ensure that the online public file is accessible to individuals with
disabilities. If we learn of any problems with accessibility of the online public file, we will revisit this
issue.302
100.
Geographic Coverage Area. The Commission’s online public file will be available to
anyone who has Internet access, regardless of their location. Two petitioners on reconsideration of the
2007 Report and Order suggested that broadcasters should be permitted to limit online public file access
to viewers within a station’s geographic coverage area.303 The Commission concluded in the FNPRM that
it saw no reason to limit online access to the public file, nor did it know of a workable mechanism for
implementing and enforcing such a proposal.304 No commenter opposed this tentative conclusion, and
commenters in support agreed that limiting access to a station’s public file to viewers within a station’s
viewing area would be misguided.305 We believe it entirely consistent with Congressional intent in
adopting Section 309 of the Act to enhance the ability of both those within and those beyond a station’s
service area to participate in the licensing process.306 We see no additional burdens, and several benefits,
in providing full access to the public file of each station.307 We note, moreover, that such a restriction
would reduce the scope of public access now provided by our rules308 – a result clearly at odds with our
objective of increasing the transparency and availability of public records. We conclude that each


301 See 29 U.S.C. § 794d(1)(A)(ii).
302 As discussed further above, we plan to use optical character recognition tools to enhance the searchability of
some documents. We believe that this may help facilitate accessibility for individuals who are blind or vision
impaired. See ¶ 87, supra.
303 FNPRM at ¶ 19.
304 Id.
305 Common Frequency Comments at 2; LUC Media Comments at 7.
306 FNPRM at ¶ 19. See also 2007 Report and Order at ¶ 13.
307 See Section III.A, supra.
308 There is no current restraint – based on residency or any other “local” connection – on members of the public
who may demand and obtain access to any station’s public file.
47

Federal Communications Commission


FCC 12-44

station’s online public file will not be limited to viewers within its geographic coverage area.
101.
Maintenance. In order to keep each public file orderly, we conclude that stations must
actively maintain their online public file, although the Commission will ensure that items filed in CDBS are
updated in the public file as they are updated on CDBS. In the FNPRM, the Commission proposed that
stations would be expected to maintain their online public files, ensuring that the files contain the
information required by the public file rules and that items be removed once they no longer must be
retained under our rules.309 In response, APTS and PBS argue that it would be more efficient for the
Commission automatically to replace old materials when new materials are imported into the public
file.310 They argue that it is inefficient and burdensome for stations to be required to monitor the addition
and deletion of materials.311 They also argue that the Commission should avoid introducing contradictory
objectives by punishing stations for sharing information above and beyond what is required while still
expecting the stations to increase disclosure so the public is informed of the station’s broadcast
services.312
102.
We believe it is important that stations maintain orderly public files. While one of our
goals is increased disclosure, another is to be able to provide the public with relevant information in an
efficient manner. We are concerned that if material is never removed from the online public file, it will be
difficult for the public to find information that is relevant. We note that public file items have different
document retention periods, and recommend that stations remove such items in a timely fashion. We do not
require stations to remove each item at the end of its retention period, but note that stations are still required
to maintain an orderly file. Each station’s online public file should not become so overgrown with out-of-
date documents that it is difficult to access relevant materials. To assist with this process, the Commission
will strive to facilitate the identification and management of aging materials. The Commission will explore
creating a mechanism to automatically identify documents that may be beyond their retention period, and
flag such documents for station review. Some categories of documents, such as time brokerage agreements
and joint sales agreements that need to be retained for as long as the items are effective, will need active
management on the part of the station.313 At a minimum, we will require stations to remove expired
contracts when and if replacement agreements are uploaded. Materials in the online file will be disposed of
consistent with the records schedule we will develop under the Federal Records Act.
103.
Certification. We decline the request of two parties that the Commission remove a
question on renewal Form 303-S that asks whether local public file documents have “been placed in the
station’s public inspection file at the appropriate times.”314 The two parties argue that this certification
will be unnecessary, since the online public file will be available for anyone to evaluate for completeness.
We disagree. Although the Commission will be importing into the online public file all items that are
filed with the Commission in CDBS, stations will still be responsible for uploading to the online public


309 As required by the Federal Records Act, 44 U.S.C. §§ 3301, et seq., the Commission will create a records
schedule to set the retention and disposal of the files. The schedule will require approval by the National Archives
and Records Administration. The records schedule will govern our handling of the station files.
310 APTS and PBS at 4. See also Public Licensees Reply at 4; Four Commercial and NCE Licensees Comments at 4.
311 APTS and PBS at 4.
312 Id. at 15-16; Public Television Licensees Reply at 7.
313 See, e.g., 47 C.F.R. § 73.3526(e)(14)(requiring that time brokerage agreements “be retained as long as the
contract or agreement is in force”).
314 Named State Broadcasters Assn. Comments at 16; Joint Television Parties Reply at 22.
48

Federal Communications Commission


FCC 12-44

file all other items required under our rules.315 As there will still be a requirement that stations maintain
their public files, it is necessary that stations certify to their compliance with this requirement at the time
of license renewal. This certification requirement is designed to promote voluntary rule compliance.316
In addition, as noted in the FNPRM, a successful upload of a station’s public file on the Commission’s
website will not be considered agency approval of the material contained in the filing.317 The purpose of
online hosting is to provide the public ready access to the material, although Commission staff may
review the material placed in each station's online public file, just as Commission staff currently reviews
station public files to determine compliance with Commission rules.
104.
Working Group and Pilot Program. We decline to adopt NAB’s proposal that the
Commission create a joint Commission-broadcaster working group or a pilot program to address the
implementation issues and technical challenges raised by the online public file.318 NAB argues that a
working group, through which the Commission would work with broadcasters to design the online public
file and develop rules for its use, would likely reduce overall costs and burdens for the Commission and
stations by identifying more quickly potential problems and their solutions.319 NAB and others also
support a pilot program, through which a limited number of stations would test the online public file
before the Commission requires broadcast stations to post files to it.320 These commenters argue that the
Commission will gain valuable experience and insight if it conducts a pilot program involving the
licensees of representative large, medium, and small market commercial and noncommercial educational
television stations, and their trade association representatives.321 Other implementation suggestions
include transition periods, phase-in approaches, and workshops.322
105.
For more than ten years the Commission has been exploring in this proceeding the best
way to move broadcasters’ public files online to make them more accessible. A broad group of


315 In order to upload information into its online public file, a station will need to log in with the same credentials
used to file station applications and materials in CDBS. This will ensure that only station licensees will be able to
post information to their files.
316 1998 Biennial Regulatory Review—Streamlining of Mass Media Applications, Rules, and Processes, Report and
Order, 13 FCC Rcd 23056 at ¶ 23 (1998).
317 FNPRM at fn 46.
318 NAB Comments at 6, Reply at 3.
319 NAB Comments at 36 (suggesting that the working group could consult on issues including the time and expense
associated with the initial upload of material to the online file; the time and expense associated with adding
additional material to the file; functionality of the online system and whether technical modifications are needed;
any reactions from users of the public file that the station receives; additional staffing or outsourcing required;
expenses for purchases associated with establishing and maintaining the public file; costs associated with specific
provisions of the rules; and identification of changes in FCC rules needed to facilitate the placing of public files
online).
320 NAB Comments at 30; Joint Television Parties Reply at 21; Named State Broadcasters Assn. Comments at 12-
13; North Carolina Assn. of Broadcasters et al. Reply at 2,4; Public Television Licensees Reply at 4; Hubbard
Broadcasting at 3. Named State Broadcasters Association argues that a pilot program is an important way for the
Commission to meet its statutory obligations under the Paperwork Reduction Act. Named State Broadcasters Assn.
Comments at 14. See also Ex Parte Presentation of Target Enterprises at 10-12 (filed April 19, 2012). We disagree
with their argument that rules implementing the Paperwork Reduction Act require the Commission to test
information collections a pilot program. Id; see 5 C.F.R. § 1320.8(a)(6).
321 Named State Broadcasters Assn. Comments at 13.
322 NAB Comments at 32; Public Television Licensees Reply at 9.
49

Federal Communications Commission


FCC 12-44

commercial and noncommercial broadcasters has participated in every phase of the proceeding. We do
not believe a working group or pilot program is necessary to ensure that the process of implementing an
online public file is successful, and we believe that the creation of a working group as a condition
precedent could unduly delay its implementation.323
106.
We are addressing the concerns expressed about implementation, however. The
Commission is undertaking rigorous testing of the online public file to ensure a smooth user experience.
We will provide opportunities for user testing and education before stations are required to upload their
online public files. Because our rules will require stations simply to upload information to a Commission-
hosted online public file, a process similar to uploading applications to CDBS – which licensees have
been doing for more than ten years324 – we do not believe that this process demands the kind of
groundwork that broadcasters advocate. As already discussed, only 200 stations, or approximately 11%
of all stations, will be required to upload their political files for the first two years. While this is not a
pilot program, we believe that this smaller group of stations, which as major-network affiliates are
generally likely to be relatively capable and sophisticated users of technology, can assist in meeting
NAB’s stated goals of addressing implementation issues and technical challenges as they arise. In
addition, as discussed above, we believe that the user testing and education we will provide will assist
stations with any concerns they may have. Commission staff will be dedicated to assisting stations with
any issues they may confront after implementation of the online public file. We will also explore the
option of providing user or peer support groups to help stations identify and work through implementation
issues. Such support groups can assist the Commission in identifying whether any issues are common to
many users, or station-specific.

F.

Announcements and Links

107.
We decline to adopt the FNPRM’s proposal to require stations to make on-air
announcements about the availability of the online public file, but do adopt the proposal that stations
provide information about the online public file on their websites to the extent that they have them. In the
2007 Report and Order, the Commission adopted a requirement that stations make twice-daily
announcements about the online availability of the public file.325 On reconsideration, public television
petitioners argued that this was unduly burdensome, and asked that the Commission reduce this
requirement to a few times a week, at most.326 In the FNPRM, the Commission proposed that stations be


323One commenter claims that details of a “pilot program” were not properly raised in the Further Notice. See Ex
Parte Presentation of Target Enterprises at 4-7, 17 (filed April 19, 2012). To the extent these notice concerns relate
to the phase-in approach we are adopting in this proceeding, we note that in the FNPRM, the Commission sought
comment on whether we should “consider creating different requirements for small television broadcasters.”
FNPRM at ¶ 50. In any event, the Commission has discretion to implement changes in a step-by-step fashion. See
U.S. Cellular Corp. v. FCC,
254 F.3d 78, 86 (D.C. Cir. 2001) (“agencies need not address all problems in one fell
swoop”) (citations and internal quotation marks omitted); Personal Watercraft Industry Assoc. v. Dept. of
Commerce,
48 F.3d 540, 544 (D.C. Cir. 1995) (“An agency does not have to ‘make progress on every front before it
can make progress on any front.’) (quoting United States v. Edge Broadcasting Co., 509 U.S. 418, 434 (1993));
National Association of Broadcasters v. FCC, 740 F.2d 1190, 1207 (D.C. Cir. 1984) (“[A]gencies, while entitled to
less deference than Congress, nonetheless need not deal in one fell swoop with the entire breadth of a novel
development; instead, ‘reform may take place one step at a time, addressing itself to the phase of the problem which
seems most acute to the [regulatory] mind.”’) (citations and internal quotation marks omitted, alteration in original).
324 See, e.g., Mass Media Bureau Implements Mandatory Electronic Filing of FCC Forms 301, 314 and 315, Public
Notice, 16 FCC Rcd 3989 (2001).
325 2007 Report and Order at ¶ 31.
326 Joint Public Television Reconsideration Petitioners at 18.
50

Federal Communications Commission


FCC 12-44

required to notify viewers of the existence, location, and accessibility of a station’s public file; it noted
that if most viewers are unaware of the existence of the public file or how to access it, its usefulness
would be greatly diminished.327
108.
The Commission has long required stations to identify both the call letters of their stations
and the cities which they are primarily licensed to serve in order to enable the public to readily “identify
the stations to which they are listening and, further, to identify the communities which they are primarily
licensed to serve.”328 APTS and PBS argue that stations should have the option of making announcements
regarding the online public file on their websites without having to also make an on-air announcement.329
APTS and PBS argue that on-air announcements are ineffective in informing the public because they are
fleeting and might not reach all individuals within the community, whereas a notice on the station’s
website is more likely to be found by persons who are interested in accessing an online public file and can
provide more detail.330 We are persuaded that providing information on a station’s website about the
existence and location of the online public file is a better means of ensuring that all viewers know about
the availability of the online public file than requiring occasional on-air announcements. Stations will,
however be required to revise their on-air pre- and post-filing renewal announcements to reflect the
availability of a station’s renewal application on the Commission’s website, as reflected in Appendix A.
109.
We adopt the tentative conclusion that stations that have websites be required to place a
link to the online public file on their home page.331 Common Frequency supports the proposal, and no
commenter opposed it.332 Although we have concluded that posting station information to an online
public file hosted by the Commission will make the information easily accessible by viewers, we want to
ensure that those viewers who seek such information on a station’s website are directed to the online
public file, particularly since stations will not be required to broadcast on-air announcements regarding
the change in location of their public file. In lieu of requiring stations to announce on their websites the
availability of their correspondence files at their main studios, we will include language in the online
public file that directs the public to the station’s main studio to access letters and email from the public.
110.
We also adopt the FNPRM’s proposed requirement that stations that have websites include
on their home page contact information for a station representative that can assist any person with
disabilities with issues related to the content of the public files.333 PIPAC noted that for a person with
disabilities, “the burden of searching through several pages or levels becomes an insurmountable
barrier.”334 We will adopt the proposal, which no commenter opposed.

G.

Radio and Multichannel Video Programming Distributors

111.
Consistent with the FNPRM, we limit this proceeding to television stations at this time.


327 FNPRM at ¶ 40.
328 Amendment of Part 73 of the Commission’s Rules and Regulations Relating to Station Identification
Requirements,
Notice of Proposed Rulemaking, 6 FCC 2d 805, ¶ 2 (1967).
329 APTS and PBS Comments at 5. See also Public Television Licensees Reply at 4.
330 APTS and PBS Comments at 5; Public Television Licensees Reply at 8.
331 FNPRM at ¶ 41. See also PIPAC ex parte at 5.
332 Common Frequency Comments at 6.
333 FNPRM at ¶ 41. We note that if stations receive comments about the accessibility of the online public file
system, it should direct those questions and concerns to the Commission.
334 PIPAC ex parte at 6.
51

Federal Communications Commission


FCC 12-44

In the FNPRM, the Commission noted that this proceeding is directed toward television broadcasters, and
that we may require radio licensees to abide by similar public file reforms at a later date.335 LUC Media
Group asks that the Commission consider requiring radio and cable systems to also maintain an online
public file.336 We disagree that we should extend the online public file rules to radio and cable systems
(or other multichannel video programming distributors (“MVPDs”)) at this time. First, because this
proceeding has long focused only on television stations, we do not have a sufficient record concerning
radio stations or MVPDs on which to consider possible new rules for those entities. Second, as discussed
in the FNPRM, we anticipate that starting the online public file process with the much smaller number of
television licensees, rather than with all broadcasters and MVPDs, will ease the initial implementation of
the online public file.337
112.
Public TV Licensees asks that we allow NCE radio stations, or at least those that are
licensed to the same entity as, or under common control with, an NCE television station, to maintain their
public inspection files online on the Commission’s website on a voluntary basis.338 Public Television
Licensees argues that this will allow radio stations that are jointly owned or operated with television
stations to avoid duplicative efforts from having to maintain two separate public file systems, involving
some of the same documents.339 It notes that with respect to the NCE rules, all of the requirements for
radio stations are being included in the proposed online public file.340 We appreciate that commonly
owned and operated radio stations may prefer an early transition to the online public file. In this initial
phase of implementing the online public file, however, we are concerned about adding a significant
number of additional entities to the universe of users. As we and the broadcasting industry gain more
experience with the online public file we will revisit the possibility of allowing stations not required to
use the online public file to use it on a voluntary basis. We delegate to Commission staff the authority to
allow (but not require) radio stations to voluntarily post their public files at such time as staff determines
that such an option is feasible and desirable; this will ensure that radio stations wishing to avail
themselves of the online public file can do so promptly. We further authorize Commission staff to take
into account common-ownership considerations if appropriate.


335 FNPRM. at ¶ 43.
336 LUC Media Comments at 2. See also 47 C.F.R. § 76.1701(a); 47 C.F.R. § 25.701(d).
337 FNPRM at ¶ 43. We reject arguments that requiring television broadcasters to place their political files online
will put them at a disadvantage with respect to competitors, such as MVPDs and radio stations. As discussed
above, to the extent competitors and potential advertisers have an economic incentive to access this information,
they can already do so at the station; the online disclosure rule will not alter the economic incentives of these entities
in any meaningful way. See ¶ 39, supra. In any event, the Commission has discretion to implement changes in a
multistep fashion. See fn 325, supra. We further note that 75% of political advertising is spent on broadcast
television, thus demonstrating a preference by media buyers to utilize broadcast television over other forms of
available media to reach voters or customers. See http://www.pqmedia.com/about-press-20101215-pcms2010.html;
http://www.deadline.com/2011/06/tv-stations-ready-for-2012-election-windfall/. There is no evidence in the record
to suggest that such advertising would shift to other forms of media simply because rate information, already public,
will now be accessible online.
338 Public Television Licensees at 10.
339 Id. at 10-11.
340 Id. at 10.
52

Federal Communications Commission


FCC 12-44

IV. PROCEDURAL MATTERS

A.

Regulatory Flexibility Analysis

113.
As required by the RFA,341 the Commission has prepared a Final Regulatory Flexibility
Analysis (“FRFA”) relating to this Second Report and Order. The FRFA is attached to this Second Report
and Order
as Appendix B.

B.

Paperwork Reduction Act Analysis

114.
This document contains proposed information collection requirements. The Commission,
as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the information collection requirements contained in this
document, as required by the Paperwork Reduction Act of 1995.342 The Commission previously sought
comment on how we might further reduce the information collection burden for small business concerns
with fewer than 25 or fewer employees.

V.

ORDERING CLAUSES

115.
Accordingly,

IT IS ORDERED

that, pursuant to the authority contained in sections 1, 2,
4(i), 303, 307, and 315 of the Communications Act, 47 U.S.C §§ 151, 152, 154(i), 303, 307, 315, this
Second Report and Order is

ADOPTED

.
116.

IT IS FURTHER ORDERED

that the requirement that stations place their new public
inspection file documents on the Commission-hosted online public file

SHALL BE EFFECTIVE

30
days after the Commission publishes a notice in the Federal Register announcing OMB approval.
Stations will be responsible for placing existing public file documents into the Commission-hosted
online public file, with the exception of letters and emails from the public and the existing political file,
as required by this Second Report and Order, within six months after the Commission publishes a notice
in the Federal Register announcing OMB approval. Until July 1, 2014, stations not in the top 50 DMAs
and all stations not affiliated with the top four networks, regardless of the size of the market they serve,
are exempt from the requirement, under 47 C.F.R. §§ 73.3526(b)(3) and 73.3527(b)(3), of filing their
political file online.
117.

IT IS FURTHER ORDERED

that the proceeding in MM Docket No. 00-44 is
terminated.


341 See 5 U.S.C. § 603.
342 Pub. L. No. 104-13. The Commission previously sought comment on these proposals. See 76 FR 72144 (Nov.
22, 2011).
53

Federal Communications Commission


FCC 12-44

118.

IT IS FURTHER ORDERED

that the Commission’s Consumer and Governmental
Affairs Bureau, Reference Information Center,

SHALL SEND

a copy of this Second Report and Order,
including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
54

Federal Communications Commission


FCC 12-44

APPENDIX A

Rules

Part 73 of Title 47 of the U.S. Code of Federal Regulations is amended to read as follows:
PART 73 – RADIO BROADCAST SERVICES
1.
The Authority citation for Part 73 continues to read as follows:
AUTHORITY: 47 U.S.C. 154, 303, 307, and 554.
2.
Section 73.1212 is amended by deleting “by the licensee” in the second to last sentence of §
73.1212(e) to read as follows:
(e) The announcement required by this section shall, in addition to stating the fact that the broadcast
matter was sponsored, paid for or furnished, fully and fairly disclose the true identity of the person or
persons, or corporation, committee, association or other unincorporated group, or other entity by whom or
on whose behalf such payment is made or promised, or from whom or on whose behalf such services or
other valuable consideration is received, or by whom the material or services referred to in paragraph (d)
of this section are furnished. Where an agent or other person or entity contracts or otherwise makes
arrangements with a station on behalf of another, and such fact is known or by the exercise of reasonable
diligence, as specified in paragraph (b) of this section, could be known to the station, the announcement
shall disclose the identity of the person or persons or entity on whose behalf such agent is acting instead
of the name of such agent. Where the material broadcast is political matter or matter involving the
discussion of a controversial issue of public importance and a corporation, committee, association or other
unincorporated group, or other entity is paying for or furnishing the broadcast matter, the station shall, in
addition to making the announcement required by this section, require that a list of the chief executive
officers or members of the executive committee or of the board of directors of the corporation, committee,
association or other unincorporated group, or other entity shall be made available for public inspection at
the location specified under § 73.3526 of this chapter. If the broadcast is originated by a network, the list
may, instead, be retained at the headquarters office of the network or at the location where the originating
station maintains its public inspection file under § 73.3526 of this chapter. Such lists shall be kept and
made available for a period of two years.
3.
Section 73.1943 is amended by adding § 73.1943(d) to read as follows:
§ 73.1943 Political File.
*
*
*
*
*
(d) Location of the file. A television station licensee or applicant must post all of the contents added to
its political file after the effective date of this subsection in the political file component of its public file
on the Commission’s website. A television station must retain in its political file maintained at the station,
at the location specified in Section 73.3526(b) or 73.3527(b), all material required to be included in the
political file and added to the file prior to the effective date of this subsection, . The online political file
must be updated in the same manner as subsection (c).
55

Federal Communications Commission


FCC 12-44

4.
Section 73.3526 is amended by revising §§ 73.3526(b) to read as follows:
§ 73.3526 Local public inspection file of commercial stations.
*
*
*
*
*
(b) Location of the file. The public inspection file shall be located as follows:
(1) For radio licensees, a hard copy of the public inspection file shall be maintained at the main studio of
the station. For television licensees, letters and emails from the public, as required by subsection (e)(9)
below, shall be maintained at the main studio of the station. An applicant for a new station or change of
community shall maintain its file at an accessible place in the proposed community of license or at its
proposed main studio.
(2) A television station licensee or applicant shall place the contents required by subsection (e) below of
its public inspection file on the Commission’s website, with the exception of letters and emails from the
public as required by subsection (e)(9) below, which shall be retained at the station in the manner
discussed in subsection (b)(1); and the political file as required by subsection (e)(6) below, , as discussed
in subsection (b)(3). A station must link to the public inspection file hosted on the Commission’s website
from the home page of its own website, if the station has a website. To the extent this section refers to the
local public inspection file, it refers to the public file of an individual station, which is either maintained
at the station or on the Commission’s website, depending upon where the documents are required to be
maintained under the Commission’s rules.
(3) A television station licensee or applicant shall place the contents required by subsection (e)(6) below of
its political inspection file on the Commission’s website. Political inspection file material in existence 30
days after the effective date of this provision shall continue to be retained at the station in the manner
discussed in subsection (b)(1) until the end of its retention period. Any station not in the top 50 DMAs, and
any station not affiliated with one of the top four broadcast networks, regardless of the size of the market it
serves, shall continue to retain the political file at the station in the manner discussed in subsection (b)(1) until
July 1, 2014. For these stations, effective July 1, 2014, any new political file material shall be placed on the
Commission’s website, while the material in the political file as of July 1, 2014, if not placed on the
Commission’s website, shall continue to be retained at the station in the manner discussed in subsection (b)(1)
until the end of its retention period. However, any station that is not required to place its political file on the
Commission’s website before July 1, 2014 may choose to do so, instead of retaining the political file at the
station in the manner discussed in subsection (b)(1).
(4) The Commission will automatically link the following items to the electronic version of all licensee and
applicant public inspection files, to the extent that the Commission has these items electronically:
authorizations, applications, contour maps; ownership reports and related materials; portions of the Equal
Employment Opportunity file held by the Commission; “The Public and Broadcasting”; Letters of Inquiry and
other investigative information requests from the Commission, unless otherwise directed by the inquiry itself;
Children’s television programming reports; and DTV transition education reports. In the event that the online
public file does not reflect such required information, the licensee will be responsible for posting such material.
*
*
*
*
*
56

Federal Communications Commission


FCC 12-44

5.
Section 73.3527 is amended by revising §§ 73.3527(b) to read as follows:
§ 73.3527 Local public inspection file of noncommercial educational stations.
*
*
*
*
*
(b) Location of the file. The public inspection file shall be located as follows:
(1) For radio licensees, a hard copy of the public inspection file shall be maintained at the main studio of the
station. An applicant for a new station or change of community shall maintain its file at an accessible place in
the proposed community of license or at its proposed main studio.
(2) A noncommercial educational television station licensee or applicant shall place the contents of its public
inspection file on the Commission’s website, with the exception of the political file as required by subsection
(e)(5) below, which may be retained at the station in the manner discussed in subsection (b)(1) until July 1,
2014. Effective July 1, 2014, any new political file material shall be placed on the Commission’s website,
while the material in the political file as of July 1, 2014, if not placed on the Commission’s website, shall
continue to be retained at the station in the manner discussed in subsection (b)(1) until the end of its retention
period. However, any noncommercial educational station that is not required to place its political file on the
Commission’s website before July 1, 2014 may choose to do so instead of retaining the political file at the
station in the manner discussed in subsection (b)(1). A station must link to the public inspection file hosted on
the Commission’s website from the home page of its own website, if the station has a website.
(3) The Commission will automatically link the following items to the electronic version of all licensee and
applicant public inspection files, to the extent that the Commission has these items electronically: contour
maps; ownership reports and related materials; portions of the Equal Employment Opportunity file held by the
Commission; and “The Public and Broadcasting”.
*
*
*
*
*
6.
Section 73.3580 is amended by revising §§ 73.3580(d)(4)(i) and (ii) to read as follows:
(i) Pre-filing announcements. During the period and beginning on the first day of the sixth calendar month
prior to the expiration of the license, and continuing to the date on which the application is filed, the
following announcement shall be broadcast on the 1st and 16th day of each calendar month. Stations
broadcasting primarily in a foreign language should broadcast the announcements in that language.
Radio announcement: On (date of last renewal grant) (Station's call letters) was granted a license by the
Federal Communication Commission to serve the public interest as a public trustee until (expiration
date
).
Our license will expire on (date). We must file an application for renewal with the FCC (date four
calendar months prior to expiration date
). When filed, a copy of this application will be available for
public inspection during our regular business hours. It contains information concerning this station's
performance during the last (period of time covered by the application).
Individuals who wish to advise the FCC of facts relating to our renewal application and to whether this
station has operated in the public interest should file comments and petitions with the FCC by (date first
57

Federal Communications Commission


FCC 12-44

day of last full calendar month prior to the month of expiration).
Further information concerning the FCC's broadcast license renewal process is available at (address of
location of the station’s public inspection file
) or may be obtained from the FCC, Washington, DC 20554.
Television announcement: On (date of last renewal grant) (Station's call letters) was granted a license by
the Federal Communication Commission to serve the public interest as a public trustee until (expiration
date
).
Our license will expire on (date). We must file an application for renewal with the FCC (date four
calendar months prior to expiration date
). When filed, a copy of this application will be available for
public inspection at www.fcc.gov. It contains information concerning this station's performance during
the last (period of time covered by the application).
Individuals who wish to advise the FCC of facts relating to our renewal application and to whether this
station has operated in the public interest should file comments and petitions with the FCC by (date first
day of last full calendar month prior to the month of expiration
).
Further information concerning the FCC's broadcast license renewal process is available at (address of
location of the station
) or may be obtained from the FCC, Washington, DC 20554.
*
*
*
(ii) Post-filing announcements. During the period beginning of the date on which the renewal application
is filed to the sixteenth day of the next to last full calendar month prior to the expiration of the license, all
applications for renewal of broadcast station licenses shall broadcast the following announcement on the
1st and 16th day of each calendar month. Stations broadcasting primarily in a foreign language should
broadcast the announcements in that language.
Television announcement: On (date of last renewal grant) (Station's call letters) was granted a license by
the Federal Communications Commission to serve the public interest as a public trustee until (expiration
date
).
Our license will expire on (date). We have filed an application for renewal with the FCC.
A copy of this application is available for public inspection at www.fcc.gov. It contains information
concerning this station's performance during the last (period of time covered by application).
Individuals who wish to advise the FCC of facts relating to our renewal application and to whether this
station has operated in the public interest should file comments and petitions with the FCC by (date first
day of last full calendar month prior to the month of expiration
).
Further information concerning the FCC's broadcast license renewal process is available at (address of
location of the station
) or may be obtained from the FCC, Washington, DC 20554.
Radio announcement: On (date of last renewal grant) (Station's call letters) was granted a license by the
Federal Communications Commission to serve the public interest as a public trustee until (expiration
date
).
Our license will expire on (date). We have filed an application for renewal with the FCC.
58

Federal Communications Commission


FCC 12-44

A copy of this application is available for public inspection during our regular business hours. It contains
information concerning this station's performance during the last (period of time covered by application).
Individuals who wish to advise the FCC of facts relating to our renewal application and to whether this
station has operated in the public interest should file comments and petitions with the FCC by (date first
day of last full calendar month prior to the month of expiration
).
Further information concerning the FCC's broadcast license renewal process is available at (address of
location of the station’s public inspection file
) or may be obtained from the FCC, Washington, DC 20554.
59

Federal Communications Commission


FCC 12-44

APPENDIX B

Final Regulatory Flexibility Act Analysis

1.
As required by the Regulatory Flexibility Act (“RFA”),1 an Initial Regulatory Flexibility
Analysis (“IRFA”) was incorporated in the Order on Reconsideration and Further Notice of Proposed
Rulemaking
(Further Notice) in MB Docket 00-168.2 The Commission sought written public comment on the
proposals in the Further Notice, including comment on the IRFA.3 We received comments from the North
Carolina Association of Broadcasters et al. specifically directed toward the IRFA. These comments are
discussed below. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

A.

Need for, and Objectives of, the Second Report and Order

2.
One of a television broadcaster's fundamental public interest obligations is to air
programming responsive to the needs and interests of its community of license. Broadcasters are afforded
considerable flexibility in how they meet that obligation. Among other things, they are required to maintain a
public inspection file, which gives the public access to information about the station’s operations. 4 The goal
of this Second Report and Order is to modernize this public inspection file requirement, making the public
file information more accessible to members of the public who cannot visit a station during business hours to
review the public file.
3.
The Second Report and Order adopts rule changes that will:
·
replace the requirement that television stations maintain a paper public file at their main studios with
a requirement to submit documents for inclusion in an online public file, including the political file, to
be hosted by the Commission;
·
reduce the number of documents that television stations would be required to upload to an online
public file, by automatically linking to information already collected by the Commission;
·
streamline the information required to be kept in the online file, such as by excluding letters and
emails from the public; and
·
give the online public file a uniform organizational structure to allow consumers to more easily
navigate the public files.

B.

Legal Basis

4.
The proposed action is authorized pursuant to Sections 1, 2, 4(i), 303, and 405 of the
Communications Act, 47 U.S.C §§ 151, 152, 154(i), 303, and 405.


1 See 5 U.S.C. § 603. The RFA, see 5 U.S.C. § 601 et seq., has been amended by the Contract With America
Advancement Act of 1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).
2 FNPRM at at ¶ 52; Id. at Appendix C ¶ 1.
3 Id. at ¶ 50.
4 Review of the Commission's Rules regarding the Main Studio Rule and Local Public Inspection Files of Broadcast
Television and Radio Stations
, Report and Order, 13 FCC Rcd 15691, ¶ 18 (1998), recon. granted in part
Memorandum Opinion and Order, 14 FCC Rcd 11113 (1999).
60

Federal Communications Commission


FCC 12-44

C.

Summary of Significant Issues Raised by Public Comments in Response to the IRFA

5.
In the IRFA, we stated that our purpose was to ensure that any changes to applicable rules
would impose only minimal adverse impact on small entities. We also solicited comments on alternatives to
the proposed rules that would minimize the impact that any changes to our rules might have on small entities.5
In their comments, North Carolina Association of Broadcasters et al. states that the IRFA has not “fully
acknowledged, much less actually considered and developed any data to evaluate, the economic impacts of its
proposals to require broadcasters to upload their political files to the FCC’s servers and to require
broadcasters to report all sponsorship identifications in the online public file.”6 The North Carolina
Association of Broadcasters et al. also states that “the Commission has underestimated the burden of creating,
updating, and maintaining these materials”, and has not analyzed the costs to the Commission, which it claims
will “undoubtedly” be bourn by small businesses via increased regulatory fees.7
6.
We disagree with these claims. The FNPRM and Second Report and Order, including the
IRFA and this FRFA, consider the impacts of this revised recordkeeping requirement. Section III.B. of the
Second Report and Order discusses how broadcasters’ initial costs of compliance are minimized, and how the
online public file will ultimately lead to cost savings. This section discusses the Commission’s cost analysis,
including our determination that broadcaster’s initial costs of compliance to upload their existing public file
will average from $80 to $400 per station. We understand that North Carolina Association of Broadcasters et
al.
disagrees with our evaluation of the burdens that will be placed upon broadcasters in order to comply with
these revised recordkeeping requirements as discussed in the FNPRM. Those arguments are considered in
this Second Report and Order.8 We also disagree with North Carolina Association of Broadcasters et al.’s
assertion that this Regulatory Flexibility Analysis must more fully consider costs to the Commission We find
that such a claim by the Association is based on purely speculative, and therefore spurious, grounds. In
making the determinations reflected in the Second Report and Order, we have considered the impact of our
actions on small entities, which is the requirement of the Regulatory Flexibility Act.9 In any event, the
Commission is taking steps in this Second Report and Order to minimize burdens on small entities, by
undertaking the automatic posting of several items that are required to be placed in the online public file, as
discussed in Section E, supra. In addition, the Commission declined to adopt the proposal that stations report
all sponsorship identifications, as discussed by the North Carolina Association of Broadcasters, and shared
services agreements, along with weekly on-air announcements. Also, the Commission is providing an
exemption from uploading the political file to all stations that are not in the top 50 DMAs and all stations not
affiliated with the top four national television broadcast networks, regardless of the size of the market they


5 FNPRM at Appendix C, ¶ 1.
6 North Carolina Assn. of Broadcasters Comments at 21.
7 Id. at 20-21.
8 See, e.g., ¶¶ 30-31 (disagreeing with North Carolina Broadcaster Association et al (“NCAOB”) that transitioning
the public file online will require each station to hire one to three employees at an average cost of $30,000 to
$140,000 per station per year, and instead finding that stations will be able to assign these responsibilities to existing
staff, rather than hire additional staff); ¶ 34 (disagreeing with NCAOB that the Commission does not have a
sufficient basis to reverse the decision of the 2007 Report and Order to exclude the political file from the online
requirement); ¶¶ 55-56 (disagreeing with NCAOB that requiring stations to upload the political file online in the
same time frame as the existing paper file will be impossible or extremely burdensome); ¶ 64 (agreeing with
NCAOB that requiring stations to report the number count of letters received from the public would be overly
burdensome); ¶ 92 (agreeing with NCAOB that requiring stations to maintain back-up copies of all public file
materials and to make them routinely available directly to the public would reduce the efficiencies of placing the public
file online); ¶ 103 (disagreeing that a pilot program is necessary).
9 5 U.S.C. § 603(a) (“Such analysis shall describe the impact of the proposed rule on small entities.”). See also 5
U.S.C. § 604(a).
61

Federal Communications Commission


FCC 12-44

serve, until July 1, 2014. This will enable small market and non-affiliated broadcasters to have two additional
years to familiarize themselves with the online filing requirements before they need to begin uploading their
political files on a going-forward basis.

D.

Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will
Apply

7.
The RFA directs agencies to provide a description of and, where feasible, an estimate of the
number of small entities that may be affected by the proposed rules, if adopted.10 The RFA generally defines
the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and
“small governmental jurisdiction.”11 In addition, the term “small business” has the same meaning as the term
“small business concern” under the Small Business Act.12 A small business concern is one which: (1) is
independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any
additional criteria established by the SBA.13 Below, we provide a description of such small entities, as well as
an estimate of the number of such small entities, where feasible.
8.
Television Broadcasting. The SBA defines a television broadcasting station as a small
business if such station has no more than $14.0 million in annual receipts.14 Business concerns included in
this industry are those “primarily engaged in broadcasting images together with sound.”15 The Commission
has estimated the number of licensed commercial television stations to be 1,390.16 According to Commission
staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) as of January 31, 2011,
1,006 (or about 78 percent) of an estimated 1,298 commercial television stations17 in the United States have
revenues of $14 million or less and, thus, qualify as small entities under the SBA definition. The Commission


10 5 U.S.C. § 603(b)(3).
11 5 U.S.C. § 601(6).
12 5 U.S.C. § 601(3) (incorporating by reference the definition of “small business concern” in 15 U.S.C. § 632).
Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small business applies “unless an agency, after
consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public
comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and
publishes such definition(s) in the Federal Register.” 5 U.S.C. § 601(3).
13 15 U.S.C. § 632. Application of the statutory criteria of dominance in its field of operation and independence are
sometimes difficult to apply in the context of broadcast television. Accordingly, the Commission’s statistical
account of television stations may be over-inclusive.
14 See 13 C.F.R. § 121.201, NAICS Code 515120 (2007).
15 Id. This category description continues, “These establishments operate television broadcasting studios and
facilities for the programming and transmission of programs to the public. These establishments also produce or
transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the
public on a predetermined schedule. Programming may originate in their own studios, from an affiliated network, or
from external sources.” Separate census categories pertain to businesses primarily engaged in producing
programming. See Motion Picture and Video Production, NAICS Code 512110; Motion Picture and Video
Distribution, NAICS Code 512120; Teleproduction and Other Post-Production Services, NAICS Code 512191; and
Other Motion Picture and Video Industries, NAICS Code 512199.
16 See News Release, “Broadcast Station Totals as of December 31, 2010,” 2011 WL 484756 (F.C.C.) (dated Feb.
11, 2011) (“Broadcast Station Totals”); also available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-
304594A1.pdf.
17 We recognize that this total differs slightly from that contained in Broadcast Station Totals, supra, note 16;
however, we are using BIA’s estimate for purposes of this revenue comparison.
62

Federal Communications Commission


FCC 12-44

has estimated the number of licensed noncommercial educational (“NCE”) television stations to be 391.18 We
note, however, that, in assessing whether a business concern qualifies as small under the above definition,
business (control) affiliations19 must be included. Our estimate, therefore, likely overstates the number of
small entities that might be affected by our action, because the revenue figure on which it is based does not
include or aggregate revenues from affiliated companies. The Commission does not compile and otherwise
does not have access to information on the revenue of NCE stations that would permit it to determine how
many such stations would qualify as small entities.
9.
In addition, an element of the definition of “small business” is that the entity not be dominant
in its field of operation. We are unable at this time to define or quantify the criteria that would establish
whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small
businesses to which rules may apply do not exclude any television station from the definition of a small
business on this basis and are therefore over-inclusive to that extent. Also, as noted, an additional element of
the definition of “small business” is that the entity must be independently owned and operated. We note that
it is difficult at times to assess these criteria in the context of media entities and our estimates of small
businesses to which they apply may be over-inclusive to this extent.

E.

Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

10.
The rule changes adopted in the Second Report and Order affect reporting, recordkeeping, or
other compliance requirements. Television broadcasters are currently required to maintain a copy of their
public inspection files at their main studios.20 The Second Report and Order requires stations to replace that
requirement with a requirement to submit documents for inclusion in an online public file, including the
political file, to be hosted on the Commission’s website. Items in the public file that must also be filed with
the Commission, including FCC authorizations, applications and related materials, contour maps, ownership
reports and related materials, portions of the equal employment opportunity file, the public and broadcasting
manual, children’s television programming reports (Form 398), and DTV transition education reports (Form
388), will be automatically imported into the station’s online public file. Television stations will only be
responsible for uploading and maintaining items that are not required to be filed with the Commission under
any other rule. The Second Report and Order also excludes some items from the online public file
requirement, such as the existing political file and letters and emails from the public, which will continue to
be maintained at the station, and also declines to add other items to the online public file requirement,
including sponsorship identifications and shared services agreements, and weekly announcements of the
existence of the public file.

F.

Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant
Alternatives Considered

11.
The RFA requires an agency to describe any significant alternatives that it has considered in
reaching its proposed approach, which may include the following four alternatives (among others): (1) the
establishment of differing compliance or reporting requirements or timetables that take into account the
resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or


18 See Broadcast Station Totals, supra, note 16.
19 “[Business concerns] are affiliates of each other when one concern controls or has the power to control the other
or a third party or parties controls or has to power to control both.” 13 C.F.R. § 121.103(a)(1).
20 See 47 C.F.R. §§ 73.3526, 3527.
63

Federal Communications Commission


FCC 12-44

reporting requirements under the rule for small entities; (3) the use of performance, rather than design,
standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.21
12.
The Second Report and Order seeks to minimize and modernize reporting requirements on all
television broadcasters, by having the Commission host the online public file. The previous Report and
Order
in this proceeding, which has been vacated, required stations to host their own public file. Having the
Commission host the public file will ease the administrative burdens on all broadcasters. More than one-third
of the required contents of the public file already have to be filed with the Commission, and the Second Report
and Order
requires the Commission to import and update that information, creating efficiencies for broadcasters.
North Carolina Association of Broadcasters et al. note that the estimate for the proportion of the public file
that is already filed with the Commission is based on categories of filings, and not the overall amount of
paperwork that needs to be filed.22
13.
Given the wide variations of most public files, we are not able to estimate the precise
decrease in burdens that each station will undergo by no longer being responsible for placing in the public file
items that are already filed by the Commission. But regardless whether the decrease in burdens is measured
by category or by overall amount of paperwork, every station will have its burdens reduced by eliminating
this duplicative requirement. We also understand that all stations will have an increased burden for the initial
transition period from the paper public file to an online public file. We do not believe that this effort will be
unduly burdensome on small entities, and we believe that any such burdens are trumped by the increased
efficiencies that will result from such a transition.
14.
In any event, the Second Report and Order does not require any station to upload its existing
political files, instead allowing stations to retain such materials at the station until those files expire after their
two year retention period. All stations will only be required to upload political file material on a going-
forward basis. In addition, the Commission is exempting all stations that are not in the top 50 DMAs and all
stations not affiliated with the top four national television broadcast networks, regardless of the size of the
market they serve, from having to post new political file materials online until July 1, 2014 from including
their political file material in the online public file. After that date, those stations will be required to upload
new political file material on a going-forward basis. This will enable non-affiliated broadcasters and smaller
market broadcasters to have additional time to familiarize themselves with the online filing requirements
before they need to begin uploading their political files.
15.
Overall, in proposing rules governing an online public file requirement, we believe that we
have appropriately balanced the interests of the public against the interests of the entities who will be subject
to the rules, including those that are smaller entities.

G.

Federal Rules that May Duplicate, Overlap, or Conflict With the Proposed Rule

16.
None.


21 5 U.S.C. § 603(c)(1)-(c)(4).
22 North Carolina Association of Broadcasters et al. Comments at 20-21.
64

Federal Communications Commission


FCC 12-44

STATEMENT OF

CHAIRMAN JULIUS GENACHOWSKI

Re: Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public
Interest Obligations (MM Docket No. 00-168) and Extension of the Filing Requirement for Children’s
Television Programming Report (FCC Form 398) (MM Docket No. 00-44)

For the past three years, the FCC has been working to harness the power of digital technologies to
make public information more accessible to the public.
As part of this effort to promote transparency, we’ve been transitioning filings and comments and
recordkeeping from paper to the Internet – everything from common-carrier tariffs to broadcaster renewal
and station modification applications. We stream online all of our Commission meetings, hearings and
workshops, and we’ve developed innovative and informative digital tools like the interactive National
Broadband Map and Spectrum Dashboard.
Consistent with this effort, the Commission’s Information Needs of Communities report
recommended last year moving television broadcaster public files physical filing cabinets to virtual
Internet access. These files contain information, for example, about children’s programming, equal
employment opportunities, and political advertising. Public disclosure of this information is required by
law and part of the public’s basic contract with broadcasters in exchange for use of the spectrum and other
benefits.
The INC report was authored by Steve Waldman, a highly respected former journalist and
Internet entrepreneur, and it was widely praised for its thoughtfulness and fair-minded proposals for our
changing world.
The Order on which we’re voting today implements the INC report recommendation – so that the
public file will be accessible not just to people who can trek to broadcasters’ studios, but to anyone with
Internet access.
In filing supporting comments, the deans of leading journalism schools describe this as:
“representing in a specific instance the overall spirit of the current FCC, which has not chosen to try to
reinstitute strict regulation of broadcasting content, but, instead, has strongly promoted the use of the
Internet to give citizens access to information.”
Editorial writers have called our proposal “an excellent idea”. I call it common sense.
It fulfills the core intent of the public file rules: to provide the public access to the information in
the “public file”.
It not only enhances transparency and informs the public; it also drives efficiency and cost-
savings, since our Order would allow broadcasters to shift completely from paper to digital.
But despite broad support for this proposal, it has been met with an evolving series of critiques
from opponents of online disclosure.
First, we were told that the public file is already readily available; no need to change a thing. But
when FCC staff went to Baltimore to experience what the public experiences, they found that it took 61
65

Federal Communications Commission


FCC 12-44

hours to retrieve information from the public files at eight stations, and they were quoted copying costs of
close to $1,700.
The next argument was that moving public file information online would be technically
infeasible. That’s a hard argument to sustain when businesses are routinely digitizing their papers and
systems, and indeed in other contexts urging the FCC to move to electronic filings.
Another objection was burden and cost. But the record reveals the unsurprising fact that
businesses, including broadcasters, are moving from paper to digital every day. And our staff’s cost-
benefit analysis demonstrates that the claimed costs and burdens were dramatically overstated.
Indeed, while there will be very modest transition costs, once the transition is complete it will
save money for broadcasters.
Meanwhile, the broad public benefits of transparency and disclosure are substantial.
Once it became clear that the proposed reforms would make public information much more
accessible, that it can be done easily, and in a way that ultimately saves money, opponents of the proposal
focused on the political file. They asked that the Commission exclude the political file from the general
obligation of online disclosure.
That does acknowledge that an important question here is not: why include political files in
online disclosure, but rather: why adopt a special exemption from disclosure for political file?
Proponents of this special exception offered a few arguments for this. First, that information
about political spending should be handled exclusively by the FEC. But this is contrary to the plain
language of the law.
In the Bipartisan Campaign Reform Act of 2002, Congress explicitly amended the
Communications Act to require broadcasters to make the “political record … available for public
inspection,” and the Act states that “the Commission” – the Federal Communications Commission –
“shall prescribe appropriate rules and regulations” to implement the political record provision. This was
largely codified by rules the FCC already had in place. The FCC’s role here is clear, essential, and
longstanding.
That brings us to the latest objection – that online disclosure would cause commercial harm.
Opponents have argued that the rates broadcasters charge for political advertising are commercially
sensitive and should, in effect, be censored from the public file as it appears online. But, one, Congress
explicitly requires broadcasters to disclose this information to the public; two, broadcasters already do;
and three, competitors and customers already have access to this information and are already reviewing it
where they have an economic incentive to do so.
The argumentation here perhaps is not a surprise. After the Bipartisan Campaign Reform Act
became law in 2002, the National Association of Broadcasters and others sued to invalidate the political
file provisions. They fought it to the Supreme Court, and they lost.
The Supreme Court in that case explicitly rejected all of the largely similar arguments. On the
burden and cost-benefit argument, for example, the Supreme Court described the annual costs of the
political file provisions overall as “a few hundred dollars at most,” calling that “a microscopic amount
compared to the many millions of dollars of revenue broadcasters receive from candidates who wish to
advertise”.
66

Federal Communications Commission


FCC 12-44

The Supreme Court also said the political file requirements “will help make the public aware of
how much money candidates may be prepared to spend on broadcast messages.”
Thus the Supreme Court has confirmed that an important purpose of the political file requirement
was informing the public, not just candidates.
And in last year’s Citizen United case, the Supreme Court said that the Internet enhances the
accountability benefits of disclosure requirements.
Others have looked at the arguments of opponents of online disclosure and found them wanting.
Bloomberg View analyzed the burden and jobs arguments and concluded that “neither is credible.” The
New Republic examined the position of the opponents of political file disclosure and concluded: “the
arguments they offer are so flimsy they collapse on inspection.”
Late last Friday, a group of broadcasters submitted a proposal.
They described it as a compromise. But stakeholders who had argued for online disclosure did
not support the new proposal.
The key feature of that proposal, and others that were offered in recent days, was to censor from
online access information that Congress explicitly required to be made public.
Somewhat ironically, the proposal would also be significantly more burdensome on broadcasters
than the plan that opponents had earlier said was too burdensome – because it would require both the
maintenance of paper files and the submission of separate newly created information.
Our staff carefully analyzed this proposal and other proposals made, and concluded that they
were not workable.
Now, I recognize that some leaders in the broadcasting industry agree that moving files online
makes sense, and I appreciate the efforts by some to forge a solution that could have broad support inside
and outside the industry. I particularly appreciate the efforts of a small group of broadcasters and their
representatives who have been working on this valiantly since we started working on the INC report.
Similarly, members of the journalism and public interest communities have also worked hard to identify
mechanisms to even better inform the public.
As technologies advance and markets evolve, I look forward to engaging with all stakeholders on
ways to harness technology to ensure that the goals of the public file provisions of the Communications
Act are met effectively and efficiently in the 21st century.
Today, we have before us a straightforward issue.
In 2002, Congress required that certain specified information be made available to the public, and
it did so because of the public benefits that flow from transparency. The statute specifically says all the
information in the political file must be made “available for public inspection.”
The question in front of us is whether, in the 21st Century, “available for public inspection”
means stuck in office filing cabinets, or available online.
67

Federal Communications Commission


FCC 12-44

Or as one person put it: “Who can be against mom, apple pie and the American way of
transparency?”
I thank my colleagues for their input, and I thank Commission staff who have worked so hard on
this item. In particular, I want to thank Sherrese Smith in my office, whose outstanding leadership, policy
and legal skills, and energetic resolve were essential to today’s Order. I’d also like to thank Bill Lake,
Holly Saurer, and the Media Bureau staff who have done a tremendous job on this item.
68

Federal Communications Commission


FCC 12-44

STATEMENT OF

COMMISSIONER ROBERT M. McDOWELL

APPROVING IN PART, DISSENTING IN PART

Re: Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public
Interest Obligations (MM Docket No. 00-168) and Extension of the Filing Requirement for Children’s
Television Programming Report (FCC Form 398) (MM Docket No. 00-44)

Today the Commission is taking steps to advance the laudable goals of transparency and
modernization. And I agree with those goals. But before I go further, it is important for all of us to
understand the historical context of how we got here.
For decades, the Commission has required broadcasters to maintain general files for public
inspection that contain information regarding many aspects of broadcasters’ operations that speak to
whether a broadcaster is serving its local community of license. The Commission has also required
broadcasters to maintain files containing information regarding political advertisements. The general
public inspection file and the political file have separate histories and purposes, however.
In 1938, the Commission required broadcasters to afford equal opportunities and uniform pricing
to candidates for the same office. In the ensuing years, the Commission emphasized that the main
purpose of the political ad pricing rule was for the benefit of candidates. Nearly 30 years later, the
Commission decided that the political file containing the pricing information for candidates should be
added to the local public inspection file essentially because the political file did not have any other
designated place for storage. Next, in 1972, Congress took the Commission’s rules a step further and
mandated that candidates were entitled to the cheapest rates for campaign ads. Subsequently, in 2002,
through the McCain-Feingold campaign finance law, Congress codified essentially what the Commission
had put in place decades earlier. Interestingly, Congress chose not to require the political file to be posted
online, even though the paper world was rapidly moving to the Internet the year McCain-Feingold passed.
Prior to McCain-Feingold, however, broadcasters asked the FCC to allow them to move their
public inspection files online. Broadcasters felt that modernizing the public file disclosure requirement
by moving the information online would enhance transparency and save money. At the same time,
broadcasters were very concerned about moving the political ad file online for several reasons, but
especially because those files contain competitively sensitive information regarding the rates charged for
television ads.
To make a long story short, in 2007, I and all four of my fellow Commissioners at that time
unanimously voted to move almost all sections of broadcasters’ general public inspection files online
while explicitly exempting the political file from that transition. All of us recognized the unique history
and practical realities of the political file requirement and how those contrasted with the history and intent
of the general public inspection file rule. We also recognized the competitive sensitivities and burdens of
placing pricing information online. In the end, on a bi-partisan basis and without dissent, the Commission
re-emphasized that the public inspection file contains material that speaks to whether a broadcaster is
serving its local community of license while the political file exists to serve political candidates.
Accordingly, we chose to treat them differently for good reason.
So here we are today with this draft order before us. I cannot join my colleagues in the majority
in mandating that TV broadcasters post sensitive pricing information, contained in the political file,
online. This is not common sense. There is no statutory requirement that the Commission place any of
this information, either in whole or in part, on the Internet. Similarly, there is no prohibition against
placing a subset of this information online while maintaining the commercially-sensitive information at
69

Federal Communications Commission


FCC 12-44

the station for the use of candidates, campaigns, and other political ad buyers. After all, the political file
is a tool for examining transparency in campaign spending rather than broadcaster behavior.
The record in this proceeding contains ample evidence that posting rate information online may
cause market distortions, including price signaling, which could lead to rates mysteriously rising in some
markets, or other unforeseen consequences in other cases. Put another way, imagine for a moment if
antitrust authorities learned that broadcasters were sharing pricing information market-by-market.
Undoubtedly, broadcasters would be sued for antitrust violations. The majority appears to discount the
adverse effect that potential anticompetitive pricing activity could have on everyday consumers. By
forcing broadcasters to do what would otherwise be illegal is simply surreal.
Either way, it is the notion of disclosing competitively sensitive rate information that has
broadcasters of all sizes most concerned. With this in mind, I offered a compromise proposal whereby we
would require most aspects of the political file to be posted online, but carve out the lowest unit rate
information from the rule. In the meantime, we would explore new ideas for the treatment of the rate
information in a further notice, which we would conclude quickly. Although my colleagues politely
considered this idea, apparently I was insufficiently persuasive. The same holds true for the good faith
compromise proposals put forth by broadcasters.
Ironically, in an attempt to move away from paper, the majority may run into the requirements of
the Paperwork Reduction Act (PRA). Our 2007 order on this matter never went into effect due to PRA
concerns. As the mandates in today’s order require the duplication of some information already required
by the Federal Election Commission, it may also mark time in PRA Purgatory.
Furthermore, additional study of the matter regarding the lowest unit rate would help the
Commission conduct a proper cost/benefit analysis, which is lacking here. One would think that moving
from paper to online would always be more cost effective. Surprisingly, however, evidence in the record
suggests that the new rule might not be more efficient than the old rule and, in fact, could add up to tens
of thousands of dollars a year in new costs for some broadcasters due to the requirement that fresh
advertising information be uploaded “immediately.” During one of the busiest seasons for broadcasters,
station personnel would have to be diverted from other vital tasks to take up the full-time job of uploading
information to a government website. Such scenarios almost always add costs. The majority seems to
recognize this reality by adopting a phase-in provision which, of course, underscores the flaw in its
original premise that the new rule should be less expensive to administer.
In any case, whether it is now or at the end of the phase-in period, all TV broadcasters may well
have to swallow larger costs. This unfunded mandate will harm smaller broadcasters the most, and those
owned by minorities and women will not be spared. While the Commission often opines on its desire for
more diversity of ownership in the broadcast market, all too often it seems to make it harder for such
small and disadvantaged businesses to succeed by heaping more regulations on their backs. Indeed,
without a bona fide cost/benefit analysis, which also takes into account the effects of potential
anticompetitive behavior, the majority cannot be sure if it is doing more harm to the public interest than
good. Furthermore, the majority is violating the letter and the spirit of President Obama’s 2011 executive
order titled Improving Regulation and Regulatory Review.
I fully support transparency in political campaign spending. As many have noted, I have a mantra
that says, “I don’t tell Congress what to do, Congress tells me what to do.” In this case, many Members
of Congress have asked me what Congress should do. If the concern is to know where campaign money
is going, the public interest might be better served if Congress were to focus its scrutiny on the spenders
of campaign dollars rather than just one of many, many, many recipients. Today’s rule applies only to
TV broadcasters, yet campaign money flows to radio, cable TV, satellite radio and TV, newspapers, direct
70

Federal Communications Commission


FCC 12-44

mail, outdoor ads and the Internet, not to mention companies that offer other ways to reach voters. What
the government has created is a regime of disparate treatment. Congress should fix what the FCC won’t
or can’t.
Nonetheless, today, I vote with my colleagues to approve of common sense modernization of our
public inspection file disclosure requirements. But I cannot join them in the aspects of the Order
requiring broadcasters to post sensitive pricing information, contained in the political file, online. Nor
can I support aspects of the Order that may needlessly raise costs. I am disappointed that my colleagues
would not agree to a prudent and modest compromise, so I have no choice but to approve in part and
dissent in part.
I thank the Chairman and Commissioner Clyburn for their willingness to engage in an open
dialogue throughout this process. And many thanks to the Bureau for its work on this matter, even if I
disagree with much of the outcome.
71

Federal Communications Commission

FCC 12-44

SUPPLEMENTAL POLICY AND LEGAL STATEMENT

Transparency and modernization are always laudable public policy goals. By placing the
majority of the public inspection file online, we will increase accessibility to these documents, thus
improving communications between broadcasters and their local communities. Moreover, I support
providing broadcasters with a more cost-effective means to comply with the Commission’s rules.
Currently, our rules require the public inspection file to contain a series of documents, including
authorizations, applications, ownership reports, and information regarding broadcasters’ programming of
local interest, hiring practices, service areas, and investigations and complaints.1 Today, we act to reduce
the current burden on broadcasters by requiring them to upload only those documents maintained in the
public file that are solely in their possession. I approve of this aspect of today’s decision.
I must dissent, however, to the requirement that the contents of the political file be placed online.
The political file, maintained with the rest of the public file, contains information for candidates seeking
to purchase political ads and sheds light on the spending patterns of campaigns, political committees, and
third-party groups.2 Unlike other parts of the public inspection file, the political file does not reveal
broadcaster behavior, i.e., whether a broadcaster is serving its local community of license,3 which instead
is a tool for examining campaign spending. Although the pursuit for transparency can be a positive
endeavor, political advertising and speech bring many factual, legal and pragmatic complexities.4 As
discussed below, placing the political file online will harm American consumers because diverting
resources to fulfill the online requirement will negatively affect newsgathering operations, local
programming offerings, and may chill political speech.
By way of background, the “political file” was first created in 1938 when the Commission
required that broadcasters afford equal opportunities and uniform pricing to candidates for the same
office.5 Subsequently, the Commission recognized that the main purpose of the rule was to benefit
candidates.6 In 1965, the Commission decided that the political file should be placed with the public


1 See 47 C.F.R. §§ 73.3526, 73.3527.
2 See Id. §§ 73.1943, 73.3526(e)(6), 73.3527(e)(5); Bipartisan Campaign Reform Act of 2002 § 504, 47 U.S.C. §
315(e) (2002) (codifying the Commission’s rules and requiring broadcaster disclosure of political issue ads, by
expanding the criteria to purchases of broadcast time “relating to any political matter of national importance.”
3 Compare New Section 0.418 and Amendment of Sections 0.417 (formerly in 0.406), 1.580 (formerly 1.359), and
1.594 (formerly in 1.362) of the Commission’s Rules Relating to Inspection of Records, to Pre-Grant Procedures,
and to Local Notice of Filing or of Designation for Hearing of Broadcast Applications, Report and Order, 4 R.R. 2d
1664, 1667-68 ¶ 11-12 (1965) (“1965 Public Inspection File Order”) (citing Commission Policy on Programming,
Report and Statement of Policy Re: Commission En Banc Programming Inquiry, 20 R.R. 1901, 1912 (1960)
(stating that a broadcaster’s public interest obligation “consists of a diligent, positive and continuing effort by the
licensee to discover and fulfill the tastes, needs and desires of his service area.”)), with 3 Fed. Reg. 1691 (1938).
4 It is worth noting that the Supreme Court reiterated in Citizens United that political speech is core protected speech
under the First Amendment; therefore, as a threshold matter, the government’s ability to regulate in this area is
severely curtailed. Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010) (prohibiting the government
from limiting communications spending for political purposes by corporations and unions). As a consequence,
administrative agencies and Congress alike should think carefully before imposing new laws and regulations that
could be construed by the Court as de facto, or “backdoor,” inhibitions on political speech.
5 3 Fed. Reg. 1691, 1692 (1938).
6 Commission orders noted the importance of the political file information to candidates, but were silent on the
interest of such information to the general public. See, e.g., Amendment of Sections 3.120, 3.290, 3.590, and 3.657
(continued.…)

Federal Communications Commission


FCC 12-44

inspection file at the relevant station, because “[n]o place of retention for such records is specified in [the
political file rule] sections.”7 Later, in 1972, Congress mandated that candidates receive the lowest unit
charge for advertising to place candidates on par with a broadcast station’s most-favored advertisers.8
The discussion regarding whether to place the public inspection file online commenced in a 1999
notice,9 followed by a 2000 notice of proposed rule making, which tentatively concluded that the public
inspection file should be posted on a broadcaster’s or its state broadcasters association’s website.10
Neither notice sought comment specifically on the political file.
In 2007, the Commission unanimously adopted an online requirement for the public inspection
file; however, the agency explicitly exempted the political file finding that the burden of placing this
material on the Internet outweighed the benefits.11
Further, no Commissioner issued statements
expressing any dismay about this exclusion.12 In its discussion of the political file, the Commission
recognized that:
Daily and even more frequent requests for access by political candidates and their
campaign personnel, combined with a need for the station to update the file


(…continued from previous page)
of the Commission’s Rules – Equal Opportunities Under Sec. 315, Communications Act, Order, 40 F.C.C. 1082
(1959) (“[I]nterpretations and interpretive opinions require clarification and supplementation in order that
candidates for public office and broadcast licensees
may be more fully informed as to their rights and obligations
under section 315 and the rules and in order to insure the orderly and expeditious disposition of requests submitted
to such licensees and to the Commission for ‘equal opportunities’ under said section of the Act and under said
rules.”); Codification of the Commission’s Political Programming Policies, Report and Order, 7 FCC Rcd 678, 698
¶¶ 123-24 (stating that “[w]e believe that our current rule 73.1940(d) adequately addresses the political file
requirements and that continuation of our existing policies will best serve the interests of both candidates and
broadcasters” and that information regarding the disposition of requests “is necessary to determine whether a station
is affording equal opportunities and whether the candidate is getting favorable or unfavorable treatment in the
placement of spots. . . .”). Other Commission orders recognize that candidates and their representatives are the most
likely to use political file, not the general public. See, e.g., Review of the Commission’s Rules Regarding the Main
Studio and Local Public Inspection Files of Broadcast Television and Radio Stations, MM Docket No. 97-138,
Memorandum Opinion and Order, 14 FCC Rcd 11113, 11122 ¶ 22 (1999) (stating that, in exempting the political
file from requirements to make portions of the public inspection file available by mail upon telephone request,
‘[s]ince candidates or their representatives, rather than the general public, are the persons most likely to be effected
by this exemption, we do not believe that the exemption will aversely affect the public interest.”).
7 1965 Public Inspection File Order, 4 R.R. 2d at 1672 ¶ 25.
8 Federal Election Campaign Act of 1971, Pub. L. No. 92-225, 86 Stat. 3 (1972).
9 Public Interest Obligations of TV Broadcast Licensees, MM Docket No. 99-360, Notice of Inquiry, 14 FCC Rcd
12633, 21641 ¶ 17 (1999).
10 Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest
Obligations, MM Docket No. 00-168, Notice of Proposed Rule Making, 15 FCC Rcd 19816, 19816, 19829 ¶¶ 2, 31
(2000).
11 Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest
Obligations, MM Docket Nos. 00-168, 00-44, Report and Order, 23 FCC Rcd 1274, 1283 ¶ 20 (2008) (“2007
Order
”). The 2007 order never went into effect because of challenges before the Commission, the courts and the
Office of Management and Budget where the information collection was questioned under the Paperwork Reduction
Act.
12 See id. at 1316-23. I dissented in part to the order because of the adoption of the enhanced disclosure and the 60-
day implementation deadline to place the required postings online. See id. at 1322-23.
73

Federal Communications Commission


FCC 12-44

frequently, may make requiring the station to place this material on the Internet
inappropriate. Resources available to political candidates likely provide them
with greater access to the station and distinguish them from members of the
general public who will benefit from ready access to Internet posting of other
parts of the public file
. Political candidates and campaigns make heavy use of
the file and require quick access to material, and if the volume of material is too
great, the station may not be able to update the Internet file quickly enough. Our
rules currently require that records be placed in the political file as soon as
possible, which the rule defines as meaning “immediately absent unusual
circumstances.” This may mean multiple updates each day during peak periods
of the election season.13
Today, the majority is reversing a unanimous decision exempting the political file from online display
with no empirical evidence that its 2007 findings are no longer accurate.
The majority states that a new approach is warranted because the Commission’s understanding of
how stations manage their political transactions have changed since 2007 and that additional
technological advances have occurred.14 Many in the broadcast industry, however, argue that very little
has changed in the political ad purchase process since that time.15
One commenter conducted a survey of broadcasters, which demonstrated that “85% of the survey
respondents reported no changes to their political advertising methodology and practices since 2007.”16
Many broadcasters sell political time by non-automated processes, such as telephone conversations,
handwritten forms, emails, and faxes.17 In fact, the record states that “[o]ne of the most successful and
profitable stations providing a survey response, a station with significant local news, public affairs and
program production, reported using handwritten documents for approximately 90% of its political file.”18
The record also reflects that, even if a broadcaster issues electronic invoices, the political file includes
additional information that is in paper format.19 Even assuming that the processes have changed,


13 See 2007 Order, 23 FCC Rcd at 1282 ¶ 20 (emphasis added).
14 Order at 17 ¶ 34. The 2010 further notice provides more insight into thinking of the majority: “Since exempting
the political file in 2007, we have learned that the vast majority of television stations handle political advertising
transactions electronically, through e-mails and a variety of software applications. As a result, requiring them to
make this information publicly available online appears to impose far less of a burden than previously thought.”
Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest Obligations,
MM Docket No. 00-168, Order on Reconsideration and Further Notice of Proposed Rulemaking, 26 FCC Rcd
15788, 15800 ¶ 23.
15 See, e.g., Named State Broadcasters Association, Joint Comments, at 6 (Dec. 22, 2011) (“Named State
Broadcasters Comments”); Joint Broadcasters, Reply Comments, at 5 (Jan. 17, 2012) (“Joint Broadcasters Reply”);
The North Carolina Association of Broadcasters, The Ohio Association of Broadcasters and The Virginia
Associations of Broadcasters, Joint Comments, at ii, 9 (Dec. 22, 2011) (“North Carolina, Ohio, and Virginia
Association of Broadcasters Comments”).
16 North Carolina, Ohio, and Virginia Association of Broadcasters Comments at 9.
17 Id.; National Association of Broadcasters, Reply Comments, at 8-9 (Jan. 17, 2012) (“NAB Reply”); Joint
Broadcasters Reply at 5.
18 North Carolina, Ohio, and Virginia Association of Broadcasters Comments at 9.
19 Joint TV Broadcasters, Joint Comments, at 4 (Dec. 22, 2001) (stating “stations include in their political files: (i)
the NAB PB-17 form or an equivalent record, which is not transmitted through the online traffic system, and is
necessary because it includes required information including a summary of each request, the disposition and the
(continued.…)
74

Federal Communications Commission


FCC 12-44

however, this is irrelevant because the Commission based its 2007 decision on the burdens resulting from
the volume of material and the frequency of updates.20
By placing this information online, the majority requires broadcasters to widely disseminate
proprietary and competitively-sensitive rate information. Though some say this action will shed light on
the political spending process, the unintended consequence could be to encourage price signaling and
other anticompetitive behavior. Imagine the government’s response if sales executives from competing
television stations gathering in a conference room were to share such information.21 Regarding price
signaling, the record indicates that “[r]eadily available political file information would give television
stations a convenient and completely legal way to act with ‘conscious parallelism’ to put a floor under
rates during election seasons.”22 Another party tells us that “a central and anonymously accessible file
would create market distortions and place broadcasters at a disadvantage vis-à-vis their competitors . . . if
competitors attempt to use the data in the file to undercut their rates.”23 For example, one commenter
states that “[this] rule would afford a significant intelligence advantage to one side in private commercial
negotiations. . . . One poker player would, in effect, have had at least partial glance at the other’s hand.”24
Given these alarming scenarios, the Commission should have issued a further notice of proposed
rulemaking to ask specific questions about and consider the possibilities of such anticompetitive activity
and market distortions.
Further, the Commission is also inequitably singling out television broadcasters for these
disclosure requirements even though political campaigns spend money on a plethora of outlets to contact
and influence voters including, but certainly not limited to, advertising expenditures on radio,
newspapers, the Internet, cable television, satellite radio and TV. Requiring the political file to be online


(…continued from previous page)
names of a candidate’s committee’s officers; (ii) the order form; and (iii) one or more related invoices.”); NAB
Comments at 17-18 (“While it may be true that many broadcasters handle much of their advertising sales
electronically, including political ad sales, the electronic sales invoices do not include, or are not designed to
include, all the necessary information required to be included in the political file. That information is often input,
sometimes electronically, and sometimes in handwritten form, before it is coupled with a sales invoice and included
in the political file.”).
20 See 2007 Order, 23 FCC Rcd at 1282 ¶ 20.
21 See CBS Corporation, ABC Television Stations, Fox Television Stations, Inc., NBC Owned Television Stations
and Telemundo Stations, and Univision Television Group, Inc., Reply Comments, at 13 (“Network Station Owners
Reply”).
22 Id. at 14.
23 National Association of Broadcasters, Comments, at 21-22 (Dec. 22, 2011); see also Network Station Owners
Reply at 12-13 (“Requiring that the entire political file be placed online… would make sensitive price information
available to a television station's customers and competitors at the click of a mouse. This proprietary information
would be available to commercial as well as political advertisers, to other local stations, and to competing
advertising media such as cable operators, newspapers and web sites.”); The North Carolina Association of
Broadcasters, The Ohio Association of Broadcasters and The Virginia Associations of Broadcasters, Joint Reply, at
8 (Jan. 17,2012) (“North Carolina, Ohio, and Virginia Association of Broadcasters Reply”) (“The market for
political time is, of course, competitive. And requiring television broadcasters, but not their competitors to post . . .
information regarding advertising rates will impact the market for political time. . . .”); Joint Broadcasters Reply at
15 (requiring television stations to make rate and purchase information available online could create “market
distortions” that favor other media.).
24 Network Station Owners Reply at 13-14.
75

Federal Communications Commission


FCC 12-44

may result in a chilling of speech.25 Political advertisers may turn to other outlets if advertising on
broadcast television imposes disclosure obligations that do not exist for the providers of similar services.
Additionally, individuals may be less likely to engage in political discourse if their personal information
available on the worldwide web.26
The majority argues that, given the statutory requirement to place the specific rate for each
political advertisement in the public file, excluding such information from the online requirement “would
be contrary to the statutory directive to make the political file publicly available.”27 I respectfully
disagree. In 2002, Congress passed the Bipartisan Campaign Reform Act of 2002 (BCRA) amending
section 315 of the Communications Act to codify and expand the Commission’s political advertising
disclosure rules to include, among other things, reporting requirements for political issue ads.28 Section
315(e) states that “[a] licensee shall maintain, and make available for public inspection, a complete record
of a request to purchase broadcast time” and that this information must “be placed in a political file as
soon as possible. . . .”29 There is no statutory requirement that the Commission place any of this
information, either in whole or in part, on the Internet. Similarly, there is no prohibition against placing a
subset of this information online, such as aggregate advertising prices, while maintaining the
commercially-sensitive information at the station for the use of candidates, campaigns, other political
advertising buyers, and anyone else who is interested. Further, BCRA is not new to the Commission. It
was enacted when the Commission determined, in 2007, that it was best to make the political file
“available to public inspection” at broadcast stations.30


25 National Religious Broadcasters, Comments, at 11 (Dec. 15, 2011) (“NRB Comments”) (listing, on the Internet,
people in leadership positions of issue advocacy groups would burden political speech); Target Enterprises, Ex Parte
Presentation, at 15-16 (Apr. 19, 2012) (“Target Ex Parte”).
26 Target Ex Parte at 16 (“This type of online disclosure raises serious privacy concerns and places an unreasonable
burden on individuals’ First Amendment right to participate in political speech.”); NRB Comments at 15-16
(“Further, citizens, faced with . . . national exposure of their names, identities, and organizational affiliations, may
well balk at participating in these kinds of civic activities, particularly involving controversial issues, as they face
the specter of government-coerced lack of privacy of national proportions… Issue-advocacy groups might avoid
advertising on television altogether.”).
27 Order at 21 ¶ 39.
28 Bipartisan Campaign Reform Act of 2002 § 504, 47 U.S.C. § 315(e) (2002), stating:
(1) A licensee shall maintain, and make available for public inspection, a complete record of a request to
purchase broadcast time –
(A) is made by or on behalf of a legally qualified candidate for public office; or
(B) communicates a message relating to any political matter of national importance, including –
(i) a legally qualified candidate;
(ii) any election to Federal office; or
(iii) a national legislative issue of public importance.”
29 47 U.S.C. § 315(e)(1), (3). The Commission’s rules state that “[a]s soon as possible means immediately absent
unusual circumstance.” 47 C.F.R. § 73.1943.
30 I note that section 504 of BCRA was challenged and affirmed by the Supreme Court in McConnell v. Federal
Election Com’n
. 540 U.S. 93, 233-246 (2003). While it is true that this decision upheld section 504, the court did
not consider an online filing requirement for the political file or the implications thereof. In fact, Justice Breyer, on
behalf of the majority, upholds the broadcaster disclosure, because it is virtually identical to what was in the
Commission’s rules, at that time, and the regulation caused little burden. The majority, in this order, is now
changing the disclosure mechanism in a manner that will increase burdens.
76

Federal Communications Commission


FCC 12-44

In any event, if the public policy goal of new rules is to produce greater transparency in campaign
spending, the Commission is not the best agency to achieve this end. It is the role of the legislative
branch and the Federal Election Commission (FEC) to debate, craft, and implement new laws and
disclosure requirements in the campaign finance arena.31 In fact, Congress mandated in BCRA that the
FEC must coordinate with other federal executive agencies with election-related information32 and, unlike
the Commission, “shall maintain a central site on the Internet to make accessible to the public all publicly
available election-related reports and information.”33 Thus, the FEC already has extensive information on
its website regarding political campaign spending, including the aggregate amount spent for political
broadcast buys.34 The FEC website also has detailed information regarding the treasurers of campaign
committees and the members of the executive committee or board of directors of an entity buying an issue
ad. This information is also required to be maintained in the political file and, therefore, will be placed on
the Commission’s website, duplicating information already available to the government.35 The record
here does not demonstrate that the information provided on the FEC website is not adequate to meet the
needs of the general public, including academics, researchers and public interest groups.
It is troubling that the Commission has not adequately analyzed the costs and burdens that these
rules will place on broadcasters vis-à-vis any potential benefit to the public interest as outlined in
President Obama’s 2011 executive order.36 These requirements will be especially onerous for 1,006 small
commercial broadcasters37 and 391 noncommercial educational stations. Although the requirement to
post the political file is prospective, stations nonetheless incur upwards of $80,000 to $140,000 per year,
according to the record, in recurring costs to maintain the information.38 The extra capital and personnel
resources needed to maintain an online political file will require broadcasters to make tough choices, such
as diverting funds from their newsgathering operations and local programming. These costs will
disproportionately harm small and independent broadcasters, especially those owned by women and
minorities, which are already experiencing financial pressures in these challenging economic times.39


31
See generally National Association of Broadcasters, Supplemental Comments (Mar. 8, 2012) (“NAB
Supplemental Comments”).
32 Bipartisan Campaign Reform Act § 502(c).
33 Id. § 502(a), 2 U.S.C. ¶ 438a(a). See also 2 U.S.C. § 434(a)(11)(B) (“The Commission shall make a designation,
statement, report, or notification that is filed with the Commission under this Act available for inspection by the
public in the offices of the Commission and accessible to the public on the Internet not later than 48 hours (or not
later than 24 hors in the case of a designation, statement, report, or notification filed electronically) after receipt by
the Commission.”).
34 See NAB Supplemental Comments at 4 (citing 2 U.S.C. § 434(b)(6)(B)(iii), (c), (f)).
35 47 U.S.C. § 315(e)(2)(F), (G).
36 See Exec. Order No. 13563, Improving Regulation and Regulatory Review (Jan. 18, 2011).
37 See Order, Appendix B – Final Regulatory Flexibility Act Analysis, at 61 ¶ 8 (recognizing that this number is
likely to overstate the number of small entities because the revenues of affiliated companies and not included).
These station have revenues of $14 million or less and qualify as small entities under the Small Business
Administration definition.
38 NAB Reply at 12 (stating that the online political file would cost nearly $80,000 per election cycle for temporary
sales employees alone); State Broadcaster Association Comments at 12 (stating that the political file and
sponsorship identification requirements could cost up to $140,000 per year).
39 Duhamel Broadcasting Enterprises filed an ex parte letter, along with a Declaration from it Chief Operating
Officer, discussing the hardship that an online political file would have on a smaller television broadcasters. See
Letter from Richard R. Zaragoza, Pillsbury Winthrop Shaw Pittman LLP, to Marlene H. Dortch, Secretary, Federal
Communications Commission (Apr. 10, 2012). Access.1 Communications, a woman- and minority-owned business,
(continued.…)
77

Federal Communications Commission


FCC 12-44

Finally, these online requirements will hamper the Commission’s personnel and financial
resources.40 Although I have the utmost confidence in the Commission’s staff, I do have reservations
regarding our ability to host and maintain such databases. The Commission must test any system before
going live to ensure reliability, ample capacity, and efficiency. We must fully understand the capabilities
of the proposed database in determining filing requirements and deadlines. In these times when the
government is making do with less, I question whether implementing a new and complex database is the
best use of Commission assets.
Accordingly, I respectfully approve in part and dissent in part.


(…continued from previous page)
filed an ex parte letter expressing concerns about the burdens of an online political file and the harms of placing
commercially-sensitive rate data on the Internet. See Letter from Chesley Maddox-Dorsey, Chief Executive Officer,
Access.1 Communications, to Marlene H. Dortch, Secretary, Federal Communications Commission (Apr. 20, 2012).
40 In this order, the Commission committed to undertake the following: establishing and maintaining a website;
importing broadcasters’ documents that are already on the Commission site; creating specific organizational
subfolders for candidates and issue ads that relate to a political matter of national importance; programming the
database to use optical character recognition on materials that are scanned and non-searchable and generate
electronic backup copies of online files; making Commission staff available to assist station with any issues;
exploring the creation of user or peer support groups; creating a mechanism to identify documents beyond the
retention period to be flagged for review by broadcasters to be eliminated from the database; amongst others.
78

Federal Communications Commission


FCC 12-44

STATEMENT OF

COMMISSIONER MIGNON L. CLYBURN

Re: Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public
Interest Obligations (MM Docket No. 00-168) and Extension of the Filing Requirement for Children’s
Television Programming Report (FCC Form 398) (MM Docket No. 00-44)

Striking a balance via FCC rulemakings can at times be elusive. As an idealist, I always hope
that all parties find satisfaction in everything we do. While we achieve industry – and FCC – consensus
on a great many items, 100% harmony is difficult. This is why the Chairman has wisely partnered with
the private sector on a number of major initiatives, and why I mention the power of public-private
partnerships in nearly every speech I give.
So it is in that vein that we come to this item, which has been much discussed and hotly debated
over the past month.
When we last gathered in this room to discuss this subject, I was again reminded that the words
“disclosure” and “transparency” inspire confidence, increase the public’s trust, and convey good faith.
The American people not only want those things, they demand them, and that is the basis for my approval
of this item.
In putting these files online, the FCC is requiring broadcasters to take a step that innumerable
other entities have opted for since the World Wide Web became a part of our daily lives, and putting
public files on the Internet in 2012 makes sense. It is the expected means of data viewing, and this action
requires no unreasonable amount of production or disclosure.
And I am happy to report the overwhelming consensus that surrounds those sentiments. Like
many in this room, I attended the National Association of Broadcasters gathering a couple of weeks ago,
and was told by many participants that putting their public files online was a logical outgrowth of the
ubiquity of public information made viewable by the Internet.
But it is important to strike a balance. I have repeatedly mentioned that one of the paramount
considerations regarding this implementation is that we take into account and minimize the burden on
industry.
The FCC listened to broadcasters while developing a system that keeps the burden of this new
regime as low as possible, and I commend our Media Bureau for its diligent work in this regard. The
Commission has devised a scan and upload system that is as user-friendly as it is sensible, and should
require minimal effort to execute. While it will involve more labor, I firmly believe that any
inconvenience will be offset by the public benefits.
For the public is our greatest watchdog, and media observers from all corners, students, teachers,
Ph.Ds, whistle-blowers, grassroots organizations, or people with a lot of time on their hands serve
overwhelmingly as the best source of information regarding compliance or noncompliance with our
rules. We should all embrace this, as actors like these are an integral part of our democratic fabric.
Moreover, if the FCC can be instrumental in giving them better tools to do so, I feel that it must.
I firmly believe that this item does just that. Those who follow the use of local programming and
reporting, or lack thereof, can scan the disclosure files from broadcast stations across the nation and use
that information for any reason they choose. Maybe it’s to scrutinize the programming and ad revenue of
79

Federal Communications Commission


FCC 12-44

stations, or maybe it’s to applaud it. Or perhaps a professor in Wyoming wants to analyze what local
content is being shown in Brooklyn, New York.
I see no reason to limit the reach of the online public file. We do not restrict, in any way, shape
or form, who can access the existing paper files, and I see no need to do so for this new regime. I reject
the claims that to do so would go against the principles and aims of localism, and feel that universal
online availability is well within the letter and spirit of our direction from Congress.
The point isn’t so much what the use of the information from an online public file will be, but
simply the ability to use it. The relevant governing statute uses the words “convenience” and “necessity”
in discussing the public interest aspects of renewals of broadcast licenses, and our actions via this
rulemaking speak to such principles.
I’ve heard many stakeholders significantly downplay the interest in broadcaster files by members
of the American public. I’ve also heard that there’s a better likelihood of an asteroid hitting Earth today
than two people walking into a local affiliate station seeking to view these records. But again, such
speculation is pointless. Ours is not to keep track of such things, but rather to ensure the availability of
relevant files, regardless of how many sets of feet do or do not walk into a station. What we do via this
item will take this availability into the 21st century.
Included in this new regime, will be the political files of broadcast stations, which are currently
viewable within those entities – and no where else. Within these files are records of candidates’ requests
for airtime, a run-down of the time purchased, and other pertinent information. This is required by
statute. Congress deemed this data to be within the public’s interest to know, and have access to, and the
FCC is the cop on the beat in monitoring compliance. This information also affords the American
electorate an opportunity to see how much money is being expended on behalf of a candidate, and during
what days and hours.
In an era when political ad spending is well into the billions, many are clamoring to learn what
people and groups behind the advertisements. However, that curiosity is not what guides the FCC. What
we are charged to do is to assure that such information is available, and now it will be even more so on
the Internet.
But concerns arose regarding the widespread dissemination of the itemization of political ad
spending and how the containment of it within broadcast stations is where it should remain. More to the
point, a global window into the lowest unit charge afforded to political ad spending was a point of
contention to many, in that corporations and other ad buyers could use such knowledge to leverage their
own negotiations.
I wrestled long and hard with this, and was intent on giving these arguments due consideration.
What was always at the forefront of my mind, however, is the fact that this information is
currently available for any and all to view. But during my time as a publisher of a small weekly
newspaper, I learned very quickly how difficult it is to generate ad revenue and how painful it can be to
be gamed by entities who try to talk you down dollar by dollar. These concerns swam around in my head
as I considered the arguments of those against putting detailed information on a platform that the world
can view, and I made my thoughts known to my colleagues.
We ended up, after much discussion, including language in the item that serves as a kind of
checkpoint, which will allow us to assess the impact and effect of putting the rate information online. Our
rulemaking mandates that over the next two years, only stations affiliated with the top four national
80

Federal Communications Commission


FCC 12-44

networks, and that are licensed to serve communities in top 50 designated market areas would be required
to post new political file documents in our online database. However, one year into that timeline, and one
year before all other stations – large and small – must follow suit, we will issue a Public Notice that will
seek comment on what, if any, unforeseen burdens or harmful effects have arisen and whether changes
need to be made.
I feel this ability to revisit our actions today and consider whether to alter them if necessary is a
sensible, prudent, and measured way to proceed. And while it may not be an ideal fix for all of the critics
of our path forward, I think it is a worthwhile, middle ground approach.
As to the concerns about the burdens associated with putting rapidly-changing political ad
information in an online public file, I am confident that the system we devise will offer a well thought-out
and technologically straightforward method for the uploading and submission of relevant data. The
format set forth in the item is well-conceived, and stops short of mandating that broadcasters change the
structure of the documents they currently use.
This should allow for the uploading of various documents in different formats and will eliminate
the need for converting filings in order to match a certain program.
The public will be aware of the online public file via on-air and website-based announcements,
and we hope such outreach will bring fresh interest.
To reiterate, this agency functions at its best when it works in concert with the individuals and
corporations and individuals we oversee and regulate. The staff worked very hard on this item, and took
the predictions of future hardships seriously. I weighed them also against the need for bringing disclosure
into the new mainstream – on the web – and I am proud of this agency, in particular our Media Bureau,
for doing its absolute best to take into account the worries and sensitivities of the broadcast industry.
What we put forth today is a proper interpretation of the law governing broadcast disclosure, with the
main beneficiary being the American public. This enhanced transparency is in keeping with the times,
and is a big, overdue step forward.
I want to thank Bill Lake and his superb team in the Media Bureau for their tireless work on this
item. Mary Beth Murphy, Bob Ratcliffe, Bobby Baker, Hope Cooper, and Greg Elin were integral to this
effort, and I want to put special emphasis on Holly Saurer, who worked day and night and deserves some
additional combat pay. She was of great assistance to my office, and I am very grateful.
81

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.