This past Friday, the FCC released a Third Report and Order and Fourth Further Notice of Proposed Rulemaking (Multicast Licensing Order), setting forth rules regarding Next Gen multicast hosting arrangements and seeking further comment on ATSC 3.0-related patent issues.
For those racing to meet tonight’s deadline to file your 2021 Regulatory Fees, we have some good news. The FCC just released a Public Notice announcing that the deadline for submitting those fees has been extended to 11:59pm on September 27, 2021. The Notice is silent as to whether the extension is based on filing system problems or other causes. However, it was apparently released in a rush as it doesn’t include the FCC’s standard language specifying that the deadline is 11:59pm Eastern Daylight Time (for those wishing to file at 11:59pm Pacific Time, we wouldn’t advise it).
So if you have already paid your regulatory fees, congratulations, you got in ahead of whatever issue is driving this extension. If not, now you have something to do this weekend.
Each year with the end of summer comes an announcement from the FCC as to how it is divvying up its operating costs to then charge its regulatees in the form of regulatory fees. This annual ritual, required by Congress, makes the FCC virtually unique among federal agencies in funding its operations by passing the hat among those it regulates (and then charging them a fee to process each application to boot).
The FCC announced this afternoon that “effective immediately, [we] will no longer allow visitors into our facilities, absent special permission from the Office of Managing Director.” However, that announcement, strange as it would be under normal circumstances, was of no particular importance. That’s because the same document noted that, starting tomorrow, the FCC is asking its staff to telework. Whether you get through the front door isn’t too important when there is no one inside the building to meet.
Broadcasters are also moving quickly to adapt to a world where no matter how strange your day was, tomorrow’s developments will make it seem unremarkable. For example, noncommercial college radio stations whose campuses have suddenly shut down are learning about Section 73.561(a) of the FCC’s Rules, which eliminates the requirement that such stations maintain a minimum operating schedule “during those days designated on the official school calendar as vacation or recess periods.”
Meanwhile, NAB, among many, many others, is looking to mitigate the damage resulting from cancelled or postponed events. If you are a broadcaster that was sponsoring a concert or other event that now isn’t going to happen, you might want to check out the Advisory from Pillsbury’s Insurance Practice regarding the scope of Event Cancellation Insurance policies (and kudos to that group for presciently publishing an Advisory over a month ago titled Insuring Against the Business Risks of Coronavirus).
But what about broadcasters just doing their best to go forward with their day to day business? Well, some may go into a pool reporting model with other local stations to minimize the number of reporters being crammed into rooms with newsmakers while keeping the public informed. Others are putting together contingency plans for when a staffer starts coughing, returns from an international trip, or is bragging about how much they enjoyed their recent cruise ship vacation.
Such planning is, however, quite complicated, as employment laws won’t necessarily let you send someone home for two unpaid weeks just because they coughed. For those doing such planning, you might want to take a look at this recent Advisory, which discusses effective steps you can take in the workplace without simultaneously putting your station in violation of labor laws.
Hopefully by now you’ve begun to pick up a theme, which is simply that dealing with the fallout of coronavirus is a complex and diverse endeavor for all businesses, but particularly so for broadcasters. Those with significant news operations don’t have the option of sending everyone to work from home for a couple of weeks. That makes the task of keeping your employees safe, your audience informed, and your station solvent all the more challenging. The FCC may be able to telework efficiently, but for those that can’t, the days ahead will be difficult, and more so for those that aren’t planning ahead now.
The FCC has released its finalized schedule of annual Regulatory Fees for Fiscal Year 2019, and thanks to the collective efforts of all 50 State Broadcasters Associations and the National Association of Broadcasters, there is some good news for radio stations and satellite television stations.
But before we get to that, some information for you from the FCC’s Public Notice released today on filing requirements. Fees will be due by 11:59 p.m. EDT on September 24, 2019. You must file via the FCC’s Fee Filer system, which is available for use now. You may pay online via credit card or debit card, or submit payment via Automated Clearing House (ACH) or wire transfer. Remember that $24,999.99 is the daily maximum that can be charged to a credit card in the Fee Filer system. As a result, many stations may have to pay their fees using the other methods.
Television broadcast stations will see an unfamiliar number in the “Quantity” box when they go to pay. This relates to the FCC’s phase-in of a population-based methodology for calculating television station fee amounts. It cannot be changed and should not be a cause for concern. Regulatees whose total fee amount is $1,000 or less are once again exempt and do not need to pay.
In most years, the outcome of the annual Regulatory Fee battle ends with the FCC’s various regulatees rolling their collective eyes and murmuring “just tell me how much I have to fork over.” This year’s Regulatory Fee proceeding had some surprises, however. When the proposed fee amounts were first announced, they contained a dramatic increase in year-over-year fee amounts for most categories of radio stations. Yet, the reason for this sudden increase was neither addressed by the FCC nor readily apparent from the FCC’s brain-numbing summary of its calculation process.
In response, all 50 State Broadcasters Associations and the NAB filed comments pressing the FCC to revisit its fee methodology and to explain or correct what appeared to be flawed data used to calculate broadcast Regulatory Fee amounts. In particular, they pressed the FCC to explain why the estimated number of radio stations slated to cover radio’s share of the FCC’s budget had inexplicably plummeted between 2018 and 2019, resulting in each individual station having to shoulder a significantly higher fee burden.
In its regulatory fee Order, the Commission acknowledged that its estimate of the number of radio stations that would be paying Regulatory Fees in 2019 had been “conservative”, and failed to include 553 of the nation’s commercial radio stations. Once these stations were added to the total number of radio stations previously anticipated to pay Regulatory Fees, the impact was to reduce individual station fees from those originally proposed by 9% to 13%, depending on the class of radio station.
This adjustment prevented what would have otherwise been a roughly $3 million dollar overpayment by radio stations nationwide, significantly exceeding the FCC’s cost of regulating radio stations in FY 2019. The fact that the FCC listened to the concerns of broadcasters, investigated the discrepancy between 2019 station data and that of prior years, and made appropriate changes to fix the problem, is heartening, particularly given that stations’ only options are paying the fees demanded, seeking a waiver, or turning in their license.
Terrestrial satellite TV stations also received a requested correction to their fee calculations. As noted above, the FCC is transitioning from a DMA-based fee calculation methodology to a population-based methodology for TV stations. To phase in this new methodology, the Commission proposed to average each station’s historical and population-based Regulatory Fee amounts and use that average for FY 2019 before moving to a fully population-based fee in FY 2020.
In calculating the average of the “old” and “new” fees, however, the FCC neglected to use the reduced fee amount historically paid by TV satellite stations, which is much lower than that paid by non-satellite TV stations in the same DMA. As a result, a TV satellite station might have seen its 2019 fees jump by tens of thousand of dollars over FY 2018, only to see them drop again in FY 2020. The FCC acknowledged that its intent in adopting the phase-in was not to unduly burden TV satellite stations in FY 2019, and it therefore recalculated those fees using the lower historical fee amounts traditionally applied to such stations.
While these reductions are a rare win against ever-increasing regulatory fees, there remain big picture issues that Congress and the FCC need to address in the longer term. Significant among these is the FCC’s reliance on collecting the fees that support its operations from the licensees it regulates (a burden not a benefit), while charging no fees to those that rely on the FCC’s rulemakings to launch new technologies on unlicensed spectrum or obtain rights against other private parties via the FCC’s rulemaking processes (a benefit not a burden). Such a narrow approach to funding the FCC makes little sense, particularly where it unduly burdens broadcasters, who, unlike most other regulatees, have no ability to just pass those fees on to consumers as a line item on a bill.
We live in a time of disruption. Disruption affects all areas of the economy, but surely the most affected has to be the communications sector. If any government agency can claim to be the regulator of this disruption, it must surely be the FCC. Yet despite the FCC’s position at the forefront of these changes, its Regulatory Fee process is mired in a system in which broadcasters are left holding the bag for more than 35% of the FCC’s operating budget (once again, burden not benefit). Even as the FCC spends more of its time and resources on rulemakings, economic analysis, and technical studies surrounding new technologies and new entrants into the communications sector whose main goal is to nibble away at broadcasters’ spectrum, audience, and revenue, it still collects regulatory fees only from the licensees and regulatees of its four “core” bureaus – the International Bureau, Wireless Telecommunications Bureau, Wireline Competition Bureau, and Media Bureau. It’s an old formula, and it no longer works.
The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ Public Inspection Files by April 10, 2019, reflecting information for the months of January, February and March 2019.
Content of the Quarterly List
The FCC requires each broadcast station to air a reasonable amount of programming responsive to significant community needs, issues, and problems as determined by the station. The FCC gives each station the discretion to determine which issues facing the community served by the station are the most significant and how best to respond to them in the station’s overall programming.
To demonstrate a station’s compliance with this public interest obligation, the FCC requires the station to maintain and place in the Public Inspection File a Quarterly List reflecting the “station’s most significant programming treatment of community issues during the preceding three month period.” By its use of the term “most significant,” the FCC has noted that stations are not required to list all responsive programming, but only that programming which provided the most significant treatment of the issues identified.
Given that program logs are no longer mandated by the FCC, the Quarterly Lists may be the most important evidence of a station’s compliance with its public service obligations. The lists also provide important support for the certification of Class A television station compliance discussed below. We therefore urge stations not to “skimp” on the Quarterly Lists, and to err on the side of over-inclusiveness. Otherwise, stations risk a determination by the FCC that they did not adequately serve the public interest during the license term. Stations should include in the Quarterly Lists as much issue-responsive programming as they feel is necessary to demonstrate fully their responsiveness to community needs. Taking extra time now to provide a thorough Quarterly List will help reduce risk at license renewal time.
It should be noted that the FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have fully complete Quarterly Lists or that do not timely place such lists in their Public Inspection File. The FCC’s base fine for missing Quarterly Lists is $10,000.
Preparation of the Quarterly List
The Quarterly Lists are required to be placed in the Public Inspection File by January 10, April 10, July 10, and October 10 of each year. The next Quarterly List is required to be placed in stations’ Public Inspection Files by April 10, 2019, covering the period from January 1, 2019 through March 31, 2019. Continue reading →
Late today, the FCC released a Public Notice further extending the deadlines for filings that it extended yesterday, which it had already extended by a Public Notice released before the FCC shutdown on January 3 (did you follow that?). Skipping over those intermediate steps, the final result now boils down to this general rule: filings that were due between January 3 and January 7 will still be due tomorrow, January 30. However, filings that otherwise would have been due between January 8 and February 7 are now due by February 8.
HOWEVER, the FCC has established additional deadlines for specific proceedings and classes of proceedings, including:
- Online Public Inspection File – As an update to our post yesterday, all public inspection quarterly submissions that were due on January 10, as well as any other filings that were required to be placed in a station’s Online Public Inspection File between January 3 and January 28, are now due by February 11. Apparently in response to the demo online public file snafu we brought to light a few weeks ago, the FCC cryptically added that any online public file uploads that were made during the shutdown “will need to be resubmitted to the proper Online Public Inspection File site at https://publicfiles.fcc.gov.”
- EEO Reports – Broadcasters in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma must still place their annual EEO Public File Reports in the Online Public Inspection File by the original due date of February 1. Because the annual EEO Public File Report is not an FCC “filing” (qualifying for the general filing extension) nor a quarterly report (qualifying for the first type of Public File extension), nor was it required to be placed in the public file by January 28 (qualifying for the second type of Public File extension), it does not fall into any of the further deadline extension categories. On the other hand, the EEO Mid-Term Report on FCC Form 397 is an FCC filing, and therefore broadcasters in New Jersey and New York will have until February 8 to file it under the general deadline extension described above.
- ULS Filings – All ULS applications and notifications that were due to be filed between January 3 and February 8 are now due by February 8. This does not apply to filings related to the incentive auction, which were permitted to be filed during the FCC shutdown and therefore are unaffected by the various deadline extensions. All ULS filings that were submitted between the commencement of the shutdown and today will be considered received as of today, January 29.
While too voluminous to list here, readers should also be aware that the Public Notice sets additional new deadlines for informal consumer complaints, responsive pleadings, comments in the Carriage Election Notice Modernization proceeding, STA requests, fee filings, and filings in the Tower Construction Notification System and the Antenna Structure Registration System, among other things. Those potentially affected should review the Public Notice carefully to determine what new deadlines may apply. In addition, the Public Notice indicates that the FCC will also “consider requests for further extensions in individual matters as appropriate.” So even now, we may not be done extending the extensions.
With the partial government shutdown mercifully at an end (for now), broadcasters must hurry to update their Online Public Inspection File and make up for a month’s worth of missed filings.
As we wrote earlier this month, filing deadlines that landed during the shutdown were extended (with a few exceptions) via a January 2 FCC Public Notice. The new deadline was to have been the second day of normal FCC operations (which would have made those filings due tomorrow, Tuesday, January 29). However, in a Public Notice released a few minutes ago, the FCC extended that deadline an additional day, meaning that FCC filings whose due dates fell from January 3 to January 29 are now due by Wednesday, January 30, 2019. All public file documents that could not be uploaded to the Online Public Inspection File while it was unavailable during the shutdown should be uploaded as soon as possible, and certainly no later than the January 30 extended deadline for FCC filings.
Backlogged uploads and filings include: fourth quarter children’s television programming reports on Form 398 (if not already filed in LMS), fourth quarter commercial limits certifications, fourth quarter issues/programs lists, Class A TV continuing eligibility certifications, and NCE fundraising reports.
Because the government is funded for at least the next three weeks, broadcasters in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma will be able (and expected!) to timely upload their annual EEO public file reports in the Online Public Inspection File by Friday, February 1. See our recent advisory for more information on this obligation.
Broadcasters should also take stock of any other filings that, but for the shutdown, would have been due earlier this month (e.g., Special Temporary Authority requests and extensions). As noted in an earlier post, the shutdown did not affect the post-incentive auction broadcast repack, and any filings related to the repack should have been filed as scheduled.
Open Meeting “Lite”
On a related note, now that the FCC is open for business again, the January 30 Open Meeting will take place in person instead of via teleconference. Of course, most of the staff that normally prepare the agenda items and assist the commissioners are just now getting back to work after having been furloughed for several weeks. The show must go on, given the FCC’s statutory obligation to hold a meeting at least once a calendar month, but instead of reviewing the items announced on the Tentative Agenda, the FCC will use this meeting to go over what it calls “Commission announcements.”
The decision to delay votes on matters originally on the FCC’s meeting agenda for January affects two items of interest to broadcasters. First, broadcasters are going to have to wait even longer before they can cease thinking about the now-redundant EEO Mid-Term Report on Form 397. The FCC was prepared to vote on a Report and Order that would have eliminated this reporting requirement. The impact of the delay will be fairly limited, however. According to an advance draft of the Report and Order, the substantive changes would not have gone into effect until May 1, 2019. Given that the last round of EEO Mid-Term Reports for this license renewal cycle are due on April 1, 2019, and the cycle does not resume until 2023, the delay in voting on the item will have no practical impact on stations unless the delay drags on for years.
Also originally up for a vote at the January meeting was a Notice of Proposed Rulemaking seeking several changes in the way the FCC currently processes competing (also known as “mutually exclusive”) license applications for noncommercial educational (“NCE”) FM and television stations and low power FM (“LPFM”) stations. In this proceeding, the FCC is seeking to improve its review process by eliminating certain requirements for NCE applicants, amending its rules governing the “holding period” during which licensees must maintain certain station characteristics, and generally updating rules that are deemed confusing or unnecessarily time-consuming. With this item now off the January meeting agenda, action on it will also have to wait, likely until the February Open Meeting (assuming the federal government remains open through then).
Until then, broadcasters should work on meeting their accrued regulatory obligations that couldn’t be fulfilled during the shutdown, and might do well to expedite any planned future filings. You never know when the next FCC shutdown will occur.
One of the intriguing aspects of posting on CommLawCenter is the level of interest a particular post generates. Posts announcing something of vital importance to broadcasters will sometimes make hardly a ripple, while more mundane posts attract surprising interest.
Indeed, one of CommLawCenter’s most-read posts in its early years was a discussion of the first national EAS test. It wasn’t that non-broadcasters had suddenly become infatuated with EAS; it was because the first national EAS test happened to coincide with a near-miss between Earth and what was described as a “huge asteroid”. There apparently was a sizable contingent of conspiracy theorists who thought that a national EAS test being held at the same time as the asteroid’s arrival indicated a government cover-up of the asteroid’s imminent collision with Earth. I never understood the logic of that claim, but a four-month-old post on CommLawCenter announcing the national EAS test date suddenly became red hot in web readership until the asteroid peacefully passed by Earth.
So it was when we recently reported that shortly after the FCC shut down, some stations were getting calls claiming to be on behalf of the FCC and asking for payment of “FCC fees”. When stations pressed for more information, the callers became belligerent or hung up. In response, we alerted stations to be wary of such calls and to be especially leery of any caller that requested payment by gift card, which is the most common form of payment demanded by scammers (because they can’t be traced).
That brief alert received a lot of trade press coverage afterwards, and I certainly hope it saved a few stations some headaches. We subsequently sought more information to see if there was anything that could be learned about the calls (were they all actually scams, were there multiple approaches, or just one unified effort?). Unfortunately, there wasn’t much more information available, as it seemed most stations had just hung up and moved on with their lives. However, we did get an interesting tidbit from one station—the callback number the caller had left on voicemail. While that may seem odd, it’s common for phone scammers to leave a toll-free number behind so that those called can run out, obtain the necessary gift cards to make payment, and have a number they can call back to relay the gift card payment information to the scammer.
This particular number didn’t generate any useful information from a web search, but the way this particular call had been described seemed more formal and organized than you would expect the typical scam call to be (although the caller apparently still became belligerent when pressed). As noted in the original post, the FCC (particularly when shut down) doesn’t make collection calls itself, but it does typically send a written “Past Due Notice” to licensees when a debt has stayed unpaid for 30 days.
I checked my files for a Past Due Notice a client received a few years ago, and sure enough, at the very bottom of the Notice was the phone number the station had provided. Now we were getting somewhere. As it turns out, despite being on a piece of FCC correspondence, it was not an FCC telephone number, but one associated with the Department of Treasury. While the FCC does refer past due amounts to Treasury for collection (a questionable practice given that when you want to sell your station or renew its license, the FCC already has all the leverage it needs to get paid), the Treasury Department shut down long before the FCC. Since the FCC doesn’t make collection calls, and both the FCC and Treasury were closed when this particular call was made, who was doing the calling?
Making the circumstances even more curious is the fact that the FCC actually pays Treasury to handle the collection of overdue FCC accounts. If the FCC and Treasury are both shut down because they have no appropriated funds to operate, then the obvious question is: Who is paying a Treasury employee to do FCC collections if neither agency has funding to operate in the first place?
So I called the number to ask. A very pleasant person (not belligerent at all, at least to me) answered the phone and indicated that she wasn’t sure exactly how the contract between the FCC and Treasury worked, but that money was apparently available for their continued operations, as they had not been informed they were at risk of being furloughed anytime soon. She also said that any of the calls to stations in which the caller hung up when pressed would not have come from Treasury, as they are used to people thinking they are a scam caller and therefore work hard to persuade people that the call is a legitimate one.
I told her that with the FCC shut down, stations couldn’t access the FCC’s Fee Filer or Red Light systems to determine the validity of any claimed debt, so there were some serious concerns about which callers were scammers and which might be legitimate outreach from Treasury. She responded that they were was unaware the FCC had taken the Fee Filer and Red Light systems down, and appreciated knowing that. She added that she certainly understood why a broadcaster might be skeptical of a call given the shutdown and the inability to verify the existence of a debt until the FCC reopens. I suggested Treasury might want to focus its collection efforts on other types of debts until the FCC reopens, but in any event, that Treasury should be aware that their calls might be viewed with more than the typical amount of skepticism until the government reopens.
As we finished the conversation, she confirmed that Treasury only takes traditional forms of payment, so again, if a caller asks to be paid in gift cards, the call is a scam.
But what if the call successfully passes that first test? How do you tell if the call is legitimate, and equally important, whether you actually owe the amount claimed? Under normal circumstances, the first thing you should do is log into the FCC’s Fee Filer and Red Light systems to determine whether any debt is outstanding and the amount of it (if there are amounts due, you’ll be able to pull up a “Remittance Advice – Bills for Collection (Form 159B) for the amounts owed). Since those systems are currently unavailable during the shutdown, if you aren’t aware of any outstanding payment due, you may want to wait until the FCC reopens and the debt can be confirmed before sending any payment.
Alternatively, if you get a call from someone claiming to be with the Department of Treasury, ask them to send you their copy of your Form(s) 159B, which is also used by Treasury as the basis for their collection process. Once you are satisfied that you owe the debt (and interest), they will walk you through the payment options (again, no gift cards). If you believe the debt claim to be an error, you can challenge it, but be aware that if you earlier received a Past Due Notice from the FCC and did not challenge it within 30 days of the date on the Notice, the government may take the position that you waived your right to challenge it.
So if you get a suspicious call claiming you owe FCC fees, whether you think it is a scam or not, it’s wise to check the FCC’s Fee Filer to make sure you are all paid up. If not, the call might be legitimate, particularly if the amount the caller is saying you owe is similar to the amount the Fee Filer is indicating. Note that the amounts may not be identical, as the Fee Filer indicates the initial amount owed plus any payment penalty (for example, missing a regulatory fee payment results in an immediate 25% penalty), but may not include all accrued interest, which Treasury will also insist on collecting.
But what happens if you still don’t pay? Well, you will continue to have “Red Light” status at the FCC, which means the FCC will place a hold on processing your applications. You won’t be able to sell your station, get its license renewed, etc., until the Red Light status is removed. Also, once the FCC refers the debt to the Department of Treasury, if Treasury fails to collect it within a certain period of time, it will actually hand the bill to private debt collection agencies for collection. Those entities are renowned for their skill at harassing debtors (sometimes legally, sometimes not) into paying. If you have the misfortune to reach that state of affairs, you’ll dream of the days when you were only getting calls from scammers.
Sometimes it seems the world really is out to get you.
Being in a highly regulated business, broadcasters are quite dedicated to meeting regulatory obligations. More specifically, being subject to fines (or worse) for every shortcoming makes the average broadcaster not just diligent, but justifiably paranoid in ensuring that every regulatory requirement has been met and checked off the list. Events like government shutdowns therefore give broadcasters particular angst as they throw the normal processes and routines for compliance into disarray.
We discussed this in a post last week, which parsed obligations that must be met even while the FCC is closed from those for which a broadcaster has no option but to wait until the FCC reopens. As detailed in that post, the distinction is not always a commonsense one. For example, we noted that stations must still prepare various quarterly reports for placement in the Public Inspection File by January 10th, but that those reports cannot actually be uploaded to the online Public File until the FCC reopens, as the FCC took its Public Inspection File database offline when it closed on January 3rd, making it impossible for stations to upload those reports.
I therefore listened with interest when a broadcaster indicated last night that after four days of being dark, the FCC’s online Public Inspection File database was suddenly working again. That seemed unlikely, and sure enough, when I tried to access the database, I was redirected to a page announcing the FCC’s closure during the federal shutdown. When I noted this, the broadcaster responded that not only was he successfully uploading his Public File documents, but that the “ticker” on the FCC’s website listing recent Public File uploads indicated stations from all over the country were uploading reports at a frantic pace.
I asked for the link he was using, and it took me to what appeared to be the opening page of the FCC’s shuttered online Public File database, including the familiar “Sign in” link and recent uploads ticker on the right side of the screen. I could successfully sign in on behalf of clients, and on my first visit, the ticker indicated that eight different stations had filed more than a dozen documents in just the past six minutes. Each time I went back to the page, the ticker had updated, listing more recent uploads by a totally different batch of stations. Since the ticker only shows the most recent dozen or so uploads, it was impossible to know how many stations had recently uploaded documents to the site, but I counted more than 50 different radio and TV call signs in an hour.
The website looked like the online Public File database in every respect. It included Public Files for, as best as I could tell, every station in the country that has a Public File, and most convincingly of all, listed all of the uploaded Public File documents for each and every station. In other words, it did indeed look like the FCC had restored access to the Public File database or that stations had found a backdoor way into it.
Upon closer inspection, however, it took on the appearance of a movie set—all facades without anything behind them. It listed the various documents in a station’s Public File, including the time of uploading and the precise file size, but clicking on those documents revealed only dead links. Also suspicious was that it was only up-to-date through September 2018. The Third Quarter filings stations would have made by October 10th, 2018 were missing across the board with one exception—those stations that had uploaded them in the past few days after apparently spotting them as being missing from the database. Indeed, the only links to documents that actually took you to a document seemed to be those uploaded in the past few days; older document listings were just dead links.
Given the eerie accuracy of these station Public Files and their odd shortcomings, it seemed clear that they represented a snapshot of stations’ Public Files as they existed in the latter part of September 2018—doppelgangers of stations’ real Public Files, but definitely not the genuine article. When I asked where the broadcaster had obtained the link, I was told “Google”, and sure enough, when you search for “public inspection file” on Google, it is the first search result listed. Those interested can find the site here. Just don’t waste your time uploading any documents to it.
The reason reveals itself when you take a closer look at the link address: https://publicfiles-demo.fcc.gov. The good news is that it is an actual FCC website and not a phishing website designed to steal station passwords, etc. The bad news is that it is, as the web address suggests, just a demo site created by the FCC to demonstrate how to use the online Public File database (which all broadcast stations are now required to use). Its demo nature was confirmed when I found a reference to it in a 2016 post we published here on CommLawCenter. The FCC launched it on May 12, 2016 for training purposes when it moved TV stations and the first group of radio stations to its new online Public File database.
It is pretty much identical to the real online Public File database in every way, but there is one big difference—the demo site is still functioning, while trying to go to the real database takes you instead to an FCC shutdown notice.
Curiously, there is no hint anywhere on the demo webpage that it is just a demo and not the real online Public File database. It being a demo does, however, explain why the FCC didn’t bother shutting it down when it shut down many of its other databases. Unfortunately, when the real database became unavailable, many broadcasters came upon this site through Google or other search engines, and either failed to notice it wasn’t the real Public File database, or thought they had found a way around the FCC’s closed front door to the database.
While it is certainly unfortunate that a lot of stations appear to have wasted a lot of time uploading their Public File documents to a faux database, the far more insidious impact is that these stations have now been misled into believing they have successfully completed their uploads. As a result, when the FCC eventually reopens and the real online Public File database is made available, these stations won’t know to upload their documents to the correct database, leaving them vulnerable to license renewal challenges and Public File fines (the FCC’s base fine for a Public Inspection File violation is $10,000). If you hear from any broadcasters claiming that they were able to successfully upload their quarterly Public File reports while the FCC was closed, please disabuse them of that notion. Let them know that they could not have, and that they need to upload those documents to the correct database no later than the day after the day the FCC reopens.
But that isn’t the end of this already stranger-than-fiction story. At the beginning of December 2018, the FCC sent emails to over 1,000 radio stations indicating that the FCC had determined from a review of its online Public File database that those stations had failed to populate their online Public Files. Those emails asked the stations to acknowledge receipt and to respond by providing the FCC with a date by which each station would “complete the upload of all required information.”
At the time the emails went out, I heard from a number of stations that were totally baffled by the FCC’s assertion that they had not uploaded everything, as they were sure they had. In addition, it seemed incredibly unlikely that such a large number of radio stations could have failed to migrate their Public Files to the FCC’s online database. It represented a real unsolved mystery, and many of us were intrigued as to what could possibly explain it when the requirement to move radio Public Files online had been so heavily publicized (for example, just here on CommLawCenter, you’ll find it discussed here, here, here, here, here, and here).
Now, however, I’m thinking we may have solved this mystery. It is indeed possible for the FCC’s assertion that a large number of radio stations have empty online Public Files, and the assertion from many of those stations that they have already uploaded their Public Files, to both be true. Ironically, in creating the demo site, the FCC was attempting to help broadcasters, but in leaving it up, the FCC has unwittingly set a trap for stations that continues to swallow innocent victims hourly. I’m betting that a lot of those missing Public Files can be found at the FCC’s online Public File demo site https://publicfiles-demo.fcc.gov—the Bermuda Triangle of online Public File uploads.
[Postscript: In response to the publication of this post, the FCC has taken the demo database offline, preventing more stations from falling into this trap. While that is obviously a good result overall, it unfortunately means that: (1) communications counsel now cannot determine whether stations they represent mistakenly uploaded to the demo site instead of the real one in order to notify those clients, and (2) stations that mistakenly uploaded their entire Public File to the demo site long before the FCC shutdown have lost the ability to access it in order to demonstrate to the FCC that they made a good faith effort to upload their Public File (albeit to the wrong database). As a result, stations will need to talk to their employees handling Public File matters and ascertain directly from them what they have uploaded and to where to ensure that, as soon as the FCC reopens, the appropriate Public File documents are uploaded to the correct FCC database.]