Digital (Im)permanence and the FCC’s Online Public File
We’ve all heard the warning: once you put something on the Internet, it will be there forever. But an Oregon TV station learned the hard way that records in the FCC’s online public inspection file are easier to delete than you might like—and backdating restored files is not an option.
As detailed in our May Enforcement Monitor, the FCC hit the licensee with a proposed $9,000 fine for failing to timely upload Quarterly Issues/Programs Lists to the station’s online public inspection file—$3,000 for failing to post newly-created documents to the online file after the online file rule went into effect on August 2, 2012, $3,000 for failing to meet the February 4, 2013 deadline to populate the online public file with documents created before August 2012, and yet another $3,000 for failing to disclose these apparent violations in the station’s license renewal application.
But in its response to the FCC’s Notice of Apparent Violation (NAL), the licensee asserted that it had in fact timely posted its issues/programs lists to the online public file. The licensee claimed that when it was notified that the license renewal of a co-owned LPTV station was granted, a station employee deleted all issues/programs lists for the preceding license term from the online public file of the licensee’s full power TV station, apparently confused about which station’s license renewal had been granted (both stations had the same four-letter call sign). Recognizing the error, station employees promptly re-uploaded the lists to the public file less than 24 hours later. The February 13, 2015 upload date, however, created the appearance that the licensee had missed the original due dates by more than two years.
As proof of the mishap, the licensee provided (i) a signed declaration under penalty of perjury from a station employee, and (ii) internal correspondence showing that the lists were inadvertently deleted following the LPTV station’s license renewal grant. Satisfied with this evidence, the FCC rescinded the NAL and canceled the $9,000 fine.
So let this be a teachable moment—particularly as the FCC ponders expanding its online public file requirement to radio stations.
First, when intentionally deleting documents as no longer relevant, make sure you are in the right public file. Second, where a public file document is accidentally deleted, repost it as soon as the error is spotted. Third, when you do repost it, attach a brief explanation alerting the FCC (and any potential license renewal petitioners) of the original filing date and the reason for the subsequent “late” filing. Finally, maintain contemporaneous records to document the mistake, providing evidence that will back up the station’s explanation when the FCC comes knocking.
Oh, and one last thing the FCC didn’t mention in its decision: don’t delete those public file documents until grant of the station’s license renewal becomes a final, unappealable order. If the FCC rescinds a station’s license renewal as having been granted in error, the station will need to have those documents in its public file, and the FCC isn’t going to bother looking for them in the Google cache.