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Earlier today, the FCC announced in the Federal Register that the Office of Management and Budget (OMB) has approved the FCC’s new rules requiring television stations to replace the public files that they maintain at their studios with electronic files that will be hosted online by the FCC. As a result of today’s announcement, the online file rules become effective on August 2, 2012. Included among the documents that must be made available online are stations’ ad sales records for political ads–a requirement widely speculated to be a response to the Supreme Court’s decision in the Citizens United case.

As I reported recently, what this means is that all full-power and Class A television stations will be required to upload any newly created public file documents to a not-yet-disclosed database managed by the FCC starting August 2. Stations will have until January 3, 2013, to post their current public file documents online, with the exception of letters and emails from the public which are not required to be uploaded.

With respect to political file documents, affiliates of ABC, CBS, NBC or Fox located in the top-50 television markets will have to begin uploading all newly created political file documents to the FCC’s database on August 2, 2012. The political file requirement will be phased in so that all other television stations must comply with the political file uploading requirement by July 1, 2014. Until July 1, 2014, stations not in the top-50 markets and all stations not affiliated with the top-four networks, regardless of the size of the market they serve, are exempt from the requirement. The FCC has stated that it plans to issue a Public Notice no later than July 1, 2013 seeking comments on the impact that the posting requirement has had on television stations to that point and to evaluate the effectiveness of the process. Items placed in a station’s political file prior to August 2 will not have to be posted online.

Whether any of these dates will hold remains to be seen.

First, the National Association of Broadcasters (NAB) has already filed a Petition for Review of the rules in the U.S. Court of Appeals for the District of Columbia Circuit, even though the deadline to do so is not until July 10. The NAB, along with 46 State Broadcasters Associations and others, had opposed the rules when the FCC proposed them, stating that they were riddled with omissions, greatly underestimated the burden on television stations, and were otherwise duplicative of reporting required by the Federal Election Commission (FEC). However, the FCC and the OMB rejected these claims, seemingly turning a blind eye to the voluminous record in the proceeding indicating that the proposed rules will increase burdens on television stations while merely duplicating records already required to be filed with the FEC. As a result, the NAB’s court challenge argues that the FCC’s action in adopting the rules “infringes on . . . First Amendment free-speech rights, exceeds statutory authority, and is arbitrary and capricious.” In addition, the NAB filed a motion for stay with the FCC earlier today asking the Commission to delay implementation of the rules until the court has had an opportunity to review the NAB’s Petition for Review.

Second, and of more practical concern, the FCC will now have to scramble to ready its online filing database and educate the public in its use before the August 2 effective date rolls around. The FCC has not yet announced when the database will be available for stations to “test” the system in advance of the rules going into effect as it claimed it would do when it adopted the new rules. The Commission did announce today that it will soon schedule user testing and educational webinars for the online public file to ensure that the uploading of materials by broadcasters can be done “smoothly and efficiently”.

Many will remember the chaos that occurred in 2009 and 2010 as a result of the FCC’s decision to adopt a new electronic Ownership Report filing requirement that increased both the amount of data to be collected and the number of reports to be submitted, but promised to mitigate the increased burden by making the data easy to copy into multiple filings. Repeatedly, the FCC’s system ground to a halt under the heavy load, precluding filers from working with the data they had painstakingly entered. As a result, the filing deadline had to be repeatedly extended until the bugs were worked out. Glitches such as this are inevitable with an untested system, which makes one wonder how the FCC believes it can make it all work before the August 2 deadline. It would be unfortunate if the combination of the Citizens United ruling and the impending November 6 election drove the FCC to once again implement a filing database that is not ready for prime time, forcing broadcasters to serve as beta testers.

Needless to say, given the NAB’s Petition at the court, the other likely court and FCC challenges to the rules, and the hurdles the FCC faces in implementing the online database, the odds are not high that stations will be fully uploaded by the August 2, 2012 deadline. Unfortunately, though, television stations can’t afford to wager on the speed with which the FCC will move in this case. Stations will therefore need to start moving now to ensure they are ready to post their files by August 2, 2012, and should remain alert to any FCC announcements informing them exactly how the new filing system will work.

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As I discussed last month, the FCC has adopted rules requiring television stations to replace their existing locally-maintained public inspection files with digital files to be placed online on an FCC-hosted website, including stations’ detailed political records. The majority of television stations will not be required to begin posting their political file documents online until July 1, 2014, but stations in the top-50 markets that are affiliated with ABC, NBC, CBS or Fox will be required to comply once the new regulations go into effect, assuming that the rules survive challenges made by TV broadcasters.

Broadcasters have launched a three-pronged attack against the FCC’s proposed new regulations with a series of recent filings with the U.S. Court of Appeals for the D.C. Circuit, the Office of Management and Budget (OMB) and the FCC. The core thrust of the broadcasters’ challenges are focused on the requirement that TV stations disclose online very sensitive rate information about political advertising. Broadcasters have assailed the proposed rules for dramatically increasing regulatory burdens on TV stations while at the same time failing to require similar online disclosures by cable TV systems or other competitors to broadcast television.

The first shot fired after the FCC adopted the new regulations was by the National Association of Broadcasters (NAB) in a Petition for Review filed with the U.S. Court of Appeals for the DC Circuit. In its Petition, the NAB is asking the Court to vacate the FCC’s action “on the grounds that it is arbitrary, capricious, in excess of the Commission’s statutory authority, inconsistent with the First Amendment, and otherwise not in accordance with law.” An NAB spokesman summed it up by charging the FCC with “forcing broadcasters to be the only medium to disclose on the Internet our political rates” and jeopardizing “the competitive standing of stations.”

A number of broadcast groups opened up a second front against the FCC’s new rules earlier this week, with filings asking the OMB to take a hard look at the FCC’s proposed regulations under the Paperwork Reduction Act of 1995 (PRA), and to invalidate the rules due to the FCC’s failure to comply with the PRA. On behalf of 46 State Broadcasters Associations, Dick Zaragoza and I filed comments in the proceeding arguing that the FCC violated the PRA by, among other things, failing to analyze the large burdens the proposed new regulations will have on television stations in general, and on small television station businesses in particular. We also advanced the argument of the NAB and others that the new rules are unnecessarily and impermissibly duplicative of the records already required to be maintained online by the Federal Election Commission under the Bipartisan Campaign Reform Act of 1992.

In the third salvo, a coalition of broadcast groups calling themselves the “Television Station Group” is fighting the adoption of the rules at the FCC. This group filed a Petition for Reconsideration with the FCC asking the Commission to modify the proposed rules due to concerns with the requirement that stations reveal online precisely how much they charge for political advertising. The law requires that broadcasters charge their lowest unit rate for political ads during a pre-election window, and the Television Station Group told the FCC that if those rates are widely and easily accessible on an FCC-hosted website (and not just to candidates), commercial advertisers may make requests for that same low rate. The unintended effect could be to force broadcasters to homogenize their rates so that every ad costs the same, eviscerating the current cost advantage to candidates of being charged only the “lowest unit rate”. In short, the Television Station Group argues that the disclosure of price information is anti-competitive and disrupts the commercial advertising marketplace because “stations’ political ad rates, by law, must be based on commercial advertising rates.”

Although the new rules are under fire on a number of fronts, it remains to be seen if broadcasters will be able to successfully block the FCC’s efforts. Before the FCC’s regulations can go into effect, at a minimum, they will have to be approved by OMB through the PRA process which, in this case, will not likely be the usual perfunctory rubber stamp the FCC often receives from OMB. Also, Court of Appeals challenges to the rules are not due until July 30, 2012, and, at some point, parties are likely to ask both the FCC and the courts to hold the effective dates of the rules in abeyance until the broadcasters’ multiple challenges can be heard. In other words, the battle over the FCC’s proposed online public/political file rules is far from over.

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To follow up on my post from last week regarding the FCC’s open meeting on implementing its proposals to require online posting of TV station public inspection files, including the political file, the FCC today voted to require television broadcasters to post their entire public inspection files online. FCC Commissioner McDowell dissented regarding the requirement that TV stations’ political files be included online.

According to statements made in the FCC’s meeting today, all TV stations will have six months to move their public inspection files online. The FCC has agreed to host TV public inspection files on its own website. With respect to the political file, online posting will be a “phased in” process. Stations affiliated with the top-four national networks in the top-50 Nielsen markets will be required to begin placing their political files online, with all other TV stations to follow on July 1, 2014. The FCC also indicated that it plans to issue a Public Notice in a year to evaluate the effectiveness of the process.

In adopting its Order, the FCC rejected a compromise proposal advanced last Friday by the National Association of Broadcasters, the ABC, CBS, NBC, Fox, and Univision networks, State Broadcasters Associations, as well as various television station groups. The compromise proposal would have permitted TV stations to provide summary information online, including the total amount of an advertising buy and the total amount of money a candidate has spent at that station on ads during a particular election window. The compromise proposal would have kept commercially-sensitive per unit rate information out of the online public file, while still including this information in the hard copy of the political file for candidates to inspect regarding lowest unit rate and other political advertising requirements.

Much more on these issues to follow, including further specifics on the details of the FCC’s Order in this proceeding.

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As many of you know by now, very few topics were hotter during the NAB Show in Las Vegas this week than the FCC’s looming April 27 public meeting vote to decide how to implement its proposals to require online posting of TV station public inspection files. As Laurie Lynch Flick reported previously here, the FCC is proposing to require television broadcasters to replace their existing locally-maintained public inspection files with digital public inspection files to be maintained online, including stations’ political records. The online public file has broadcasters concerned because creating and maintaining a centralized online public file substantially increases their public inspection file burdens, while the political portion of the file contains sensitive competitive and pricing information that broadcasters would prefer not be made available to competitors online on a near real-time basis.

The proposals have proven to be so controversial that earlier today the National Association of Broadcasters (NAB) filed a request with the FCC to grant a two business day delay of the commencement of the “sunshine period” in the FCC’s online public file proceeding. For those who are not familiar with the “sunshine period” requirement, the term refers to the week before one of the Commission’s monthly public business meetings (known as “open meetings”) during which time all contacts with Commission staff concerning the matters to be decided at the meeting are prohibited, until such time as the text of the Commission’s decision is publicly released. The sunshine period for the online file proceeding is scheduled to commence today, and the NAB is asking the FCC to delay the effective date until next Tuesday, April 24, in order to allow interested parties to continue to discuss the FCC’s proposals with FCC staff members.

To make matters even more interesting, yesterday a media placement company asked the FCC to refrain from going forward at the April 27 meeting with any requirements regarding placing political files online.

The precise details of the FCC’s online public file requirements, including those for the political file, aren’t likely to be released until the FCC’s April 27 monthly meeting. However, during discussions at the NAB Show, FCC staff informed broadcasters that the FCC’s Order is expected to, at a minimum, require online posting of public inspection files by all television stations this year, with the posting of the online political file portion of the public file to be phased in, initially applying to network-affiliated stations in the top 50 markets. All other television stations would be required to move their political files online within the next two years.

Regardless of the precise approach taken by the FCC for putting political file information online, stations would be wise to ensure that their current political file is complete and that their political sales practices comply with the numerous legal requirements. Moving a poorly kept political file online is an invitation to trouble.

A good place to start for ensuring your political file compliance is with our Political Broadcasting Advisory, which is regularly updated and is a comprehensive guide for broadcasters to use to help them comply with the FCC’s political broadcasting rules, including the political file requirements. The time to fix any public file/political file and political sales problems is now, before the data has to be posted on the Internet.

As the details of the Order the FCC is expected to release on April 27 leak out, the FCC continues to revise its positions and there may be a few more twists and turns before we are done. The FCC has moved this item to the front burner of its agenda about as fast as any in recent memory. What makes it more of an immediate concern for TV broadcasters is that the item will be released just prior to the time TV stations are preparing for what is expected to be the most expensive presidential campaign advertising blitz on record.

As the online public file/political file debate rages on, there can be no doubt we will have plenty more to discuss regarding these issues in the coming days and weeks ahead.

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A panel of the United States Court of Appeals for the Ninth Circuit in San Francisco today ruled, in a 2 – 1 decision, that the long-standing prohibition on the carriage of paid political and issue advertising by noncommercial television and radio stations is unconstitutional and may no longer be enforced by the FCC.

The majority opinion in Minority Television Project Inc v. FCC was authored by Judge Carlos Bea, a George W. Bush appointee, and joined in by Judge John Noonen, a Reagan appointee; Judge Richard Paez, a Clinton appointee, wrote a dissenting opinion. The case arose when Minority Television Project, licensee of noncommercial television station KMTP-TV was fined $10,000 by the FCC for violating the prohibition in Section 399B of the Communications Act against noncommercial stations carrying paid advertising for commercial entities. According to the FCC, KMTP-TV had carried over 1,900 advertisements for entities such as State Farm, Chevrolet and Asiana Airlines in the period from 1999-2002. Minority Television Project paid the fine, but filed suit in District Court for reimbursement of the fine and declaratory relief. After its arguments were rejected by the District Court, Minority Television Project brought this appeal.

The Court of Appeals focused on whether the statutory prohibitions on paid advertising in Section 399B are consistent with the U.S. Constitution. It concluded that the statute contains content-related restrictions that must be reviewed under the standard of “intermediate scrutiny,” which provides that the government must show that the statute “promotes a substantial governmental interest” and “does not burden substantially more speech than necessary to further that interest.”

The Court found that the prohibition on broadcasting paid commercial advertising on behalf of for-profit entities, the primary focus of Minority Television Project’s appeal, was narrowly tailored and promotes the substantial governmental goal of preventing the commercialization of educational television. As a result, the fine imposed on Minority Television Project was upheld. However, the Court went on to address the prohibition on carriage of paid candidate and paid issue advertising by noncommercial stations. It found no legitimate governmental goal underlying that prohibition. The Court reviewed the Congressional record developed when the prohibition on political and issue advertising was adopted, and failed to find any evidence to support the provision. It therefore held that aspect of the law to be unconstitutional.

The decision leaves open many important questions as to how to implement it. For example, the questions of whether or how the lowest unit charge provision of Section 315 of the Communications Act will apply to noncommercial stations are not addressed. Similarly, the Decision does not consider whether federal candidates will be entitled to
“reasonable access” rights on noncommercial stations, permitting federal candidates to buy advertising on noncommercial stations that do not want to accept political advertising. While the reasonable access provision of the Communications Act appears to exempt noncommercial educational stations from that requirement, it is a content-related law, and therefore raises questions as to whether the disparate treatment of commercial and noncommercial stations for this purpose is constitutional. Other practical questions, such as the application of equal opportunities rights, political file obligations, and the like will also have to be resolved if this decision is implemented. More broadly, if the decision stands, it could have a fundamental impact on the nature and funding of noncommercial broadcasting.

The Ninth Circuit’s decision only applies to states located within the jurisdiction of that Court (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington). The FCC and the Justice Department may seek review by the entire Ninth Circuit, sitting en banc, or seek review by the U.S. Supreme Court. As that drama plays out during an active political season, a lot of noncommercial stations will be scratching their heads trying to figure out what they can, can’t, and must do in light of the decision. Conversely, a lot of commercial stations aren’t going to be happy if they find that their political advertising revenues are being diverted to noncommercial stations. One thing is certain–if upheld, the implications of this decision for both noncommercial and commercial stations will be far reaching.

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As a follow up to my earlier post today, the FCC has just released a decision rejecting a political advertising complaint filed by Randall Terry against WMAQ-TV in Chicago.

The FCC ruled that Terry failed to meet his burden to demonstrate to the station that he is a bona fide candidate for the Democratic Presidential Primary in Illinois. The FCC also ruled that even if Terry were a bona fide candidate, it was reasonable for the station to reject his request for ad time during the Super Bowl, since a station could reasonably conclude that “it may well be impossible, given the station’s limited spot inventory for that broadcast, including the pre-game and post-game shows, to provide reasonable access to all eligible federal candidates who request time during that broadcast.”

One aspect of the decision that is particularly interesting is the FCC’s conclusion that the mere fact that some stations may have aired the spots did not make another station’s decision not to air them unreasonable. The FCC assessed the degree to which Terry demonstrated he had broadly campaigned in Illinois, concluding that “[r]eview of the information provided by Terry to the station regarding his substantial showing demonstrates that much of it is either incomplete or without specific facts to support his claims regarding particular campaign activities” and that “the few locations in which he mentions campaigning fail to demonstrate that he has engaged in campaign activities throughout a substantial part of the state, as required by Commission precedent.”

While it is unlikely this decision marks the end of the controversy, it will certainly allow broadcasters to breathe easier for the moment. Unavoidably, however, the decision provides a road map to those seeking to exploit the rules in the future, detailing the type of showing they will need to make “next time” to establish a right to reasonable access, equal opportunity, and lowest unit charge (although probably not during the Super Bowl). While the FCC today set the bar appropriately high for establishing a bona fide candidacy, the benefits conveyed to candidates by the Communications Act are sufficiently attractive that it likely won’t be long before we see an effort by another “candidate” to clear that hurdle.

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If you are a television broadcaster, count yourself fortunate if you have not heard from the ad agency for Randall Terry. In a self-proclaimed effort to exploit the laws requiring broadcasters to give federal candidates guaranteed access to airtime as well as their lowest ad rates, Terry has announced he is running for President and wishes to air anti-abortion ads containing graphic footage of aborted fetuses during Super Bowl coverage and elsewhere.

Stations seeking not to air the ads have been the recipients of angry messages from the Terry campaign arguing that stations have no choice but to carry the ads under federal law, and they are not permitted to modify the ads in any way to delete the graphic content. That would be a generally accurate statement of the law if Terry is indeed a qualified “bona fide” candidate for President. The Terry campaign has already lodged at least one complaint at the FCC against a Chicago station for refusing to run the ads, and has sent messages to stations threatening a license renewal challenge if they don’t run his ads.

To say the least, this puts stations in an awkward position. If the FCC rules that Terry is a bona fide candidate, then stations that refused to air the ads are in violation of the political ad provisions of the Communications Act. If they air the ads and the FCC rules that Terry is not a bona fide candidate, then the stations are potentially liable for the content of those ads (since the “no censorship” rule on political ads wouldn’t apply). Either way, they risk license renewal challenges, either from Terry or from offended viewers. Even after the FCC rules, it’s a fair bet that the decision will be appealed, meaning that it may be a while before broadcasters have any clarity as to their legal obligations.

What has been absent from the discussion so far, however, is that the issue may loom far larger over other federal candidates than it does over broadcasters. The Communications Act grants federal candidates rights that no commercial advertiser has–a guaranteed right of access to a station’s airtime and, during the 45 days preceding a primary and the 60 days preceding a general election, a guarantee of paying the lowest available rate for ad time. Stated differently, broadcasters are required to air political speech they may disagree with, and to economically contribute to the candidate by selling airtime at prices below what they would be charging other short-term advertisers. An argument can be made that the former violates a broadcaster’s First Amendment rights, and that the latter violates both a broadcaster’s First Amendment rights (by requiring it to subsidize a candidate’s political speech), and its Fifth Amendment rights (via a government “taking” of its airtime and ad revenue).

Because broadcasters have always seen the carriage of candidate ads as part of their civic duty, they have carried them with a smile and not seriously challenged the statute that imposes these obligations. However, episodes like the Terry ads expose what we have always known about these rules, and that is simply the fact that they could easily be gamed. Some of the media have described the Terry ads as attempting to exploit a “loophole” in the law, but that is of course not really accurate, since a loophole suggests the law is working in a way other than intended when in fact, guaranteed carriage and lowest unit charge for bona fide federal candidates is the very purpose of the law.

Given the number of comedians and others over the years that have taken steps to run for President, I am frankly surprised that we have not yet seen the political ad that says “I’m George Smith and I’m running for President. I hope you’ll vote for me, but whether you do or don’t, I think you’ll find that the trip to the voting booth goes well with a nice cold Smith-brand beer.” Such ads could well qualify for guaranteed placement and the lowest possible ad rates.

If broadcasters find themselves increasingly forced to carry and subsidize “candidate” ads that cause their viewers to tune out while the advertiser avoids paying normal ad rates, the unspoken agreement between broadcasters and the federal government to live with the political advertising rules may come to an end, leading to a constitutional challenge of those rules. Sound farfetched? Not really. For decades, the FCC enforced an EEO rule that went beyond what was constitutionally permissible, but the FCC had perfected the art of fining stations an amount large enough to ensure future compliance, but low enough that it wasn’t worth the expense of challenging the rule in court. That “truce” between broadcasters and the FCC ended when the FCC upped the ante and sought to take a station’s license away for alleged EEO rule violations. At that point, our firm was hired to defend the station’s license at hearing. We let both the FCC and the petitioner that had raised the challenge know that the station was ready to vigorously defend its license, and that pursuing the case could well result in a court invalidating the FCC’s decades-old EEO rule. They pursued the case anyway, and the U.S. Court of Appeals for the DC Circuit did indeed toss out the EEO rule as unconstitutional.

Broadcasters are now faced with a somewhat similar situation, where their licenses are being threatened because a potential petitioner is arguing that they must forgo their First Amendment right to select their content, and instead air content (at a discount) that they find visually repugnant, regardless of their own political views on the abortion issue. If they are forced to do so, they have a beautiful set of facts with which to challenge the political ad provisions of the Communications Act, potentially resulting in a finding that those provisions are not constitutional in the current media environment, much to the detriment of candidates everywhere.

It is therefore not surprising that steps are being taken to avoid this “high noon” constitutional showdown between broadcasters and the Communications Act. The Democratic National Committee attempted to take some of the pressure off of broadcasters by releasing a letter stating, among other things, that “Mr. Terry’s claims to be a Democratic candidate for President are false. Accordingly, he should not be accorded the benefits of someone conducting a legitimate campaign for public office.” This letter gives the FCC ammunition to support broadcasters that do not wish to air the ads, and it is in no one’s interest to force broadcasters into a corner where challenging the constitutionality of the political rules is their least objectionable option. If that happens, future candidates could well find that they will no longer be “accorded the benefits of someone conducting a legitimate campaign for public office.”

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At its Open Meeting this morning, the Federal Communications Commission released its latest proposal to require commercial and noncommercial television broadcasters to maintain their public inspection files online. The FCC had taken incremental steps in this direction over the years by first permitting and encouraging stations to maintain their public files online, and then requiring that certain content of the public file, such as annual EEO public file reports and the progress reports that broadcasters filed during the DTV transition, also be posted on stations’ websites.

However, most television broadcasters will recall that in 2007 the FCC suddenly upped the stakes considerably when it undertook a review of the public interest obligations applicable to television broadcasters as they transitioned to digital television. The results of that review, known as “Enhanced Disclosures”, specifically mandated that television broadcasters complete a long and excruciatingly detailed new form, FCC Form 355, reporting on their programming content quarterly, and maintain almost the entirety of their public file in an online format.

While these requirements were adopted by the FCC in 2007, they were never actually implemented. Broadcasters petitioned the FCC to reconsider its order due to the excessive burden the new requirements placed on stations, and advised the government’s Office of Management and Budget, which must approve any new paperwork requirements before they go into effect, of the burden the new rules would impose.

This summer, the FCC released a report entitled “The Information Needs of Communities.” It concluded that the Form 355 was “overly bureaucratic and cumbersome.” Consistent with that conclusion, the FCC today abandoned the Form 355, but stated that it is internally circulating a Notice of Inquiry that will examine what manner of disclosures television broadcasters should instead make.

While eliminating the Form 355, the FCC did not give up on its goal of an online public inspection file. In fact, today’s proposal to implement an online public file suggests the inclusion of documents that the FCC had exempted in its 2007 order, as well as documents that stations have never previously had to place in their public file at all. Those items which are now apparently fair game include shared services agreements and a station’s political file. In addition, the FCC is proposing that stations be required to post information online regarding all of their on-air sponsorship announcements.

Both the political file and sponsorship identification proposals pose a potentially enormous burden for TV stations. How big that burden will be should become clearer when the FCC releases the actual text of the Notice of Proposed Rulemaking. Commissioner McDowell specifically asked for comment on the burden imposed by requiring that stations’ political files be posted online and continuously updated. During today’s Open Meeting, he pointedly noted that the FCC had decided to exempt the political file from online posting in 2007 because the burden outweighed the public interest benefit.

In that regard, the FCC did acknowledge some of the concerns broadcasters had earlier raised regarding the burden of online posting. For example, the FCC is proposing that, rather than requiring broadcasters to maintain their own websites for posting their public file information, the FCC create its own hosting site for that purpose.

We will certainly have more to say about this proceeding once the FCC releases the text of its proposals and inquiries. Commissioner McDowell made an additional point at the Open Meeting which certainly will resonate with broadcasters, and that is whether the burdens these new procedures would involve will result in any true benefit to the local communities the stations serve. Much was said today in support of the item based on a desire to drive additional broadband adoption, and to aid academics and advocacy groups in monitoring media. However, the purpose of the public inspection file has always been to ensure that a station’s local community has easy access to the information necessary to assess the station’s performance, particularly at license renewal time. It will be hard to justify the additional burden on TV stations if the primary “benefit” of an online file goes to academicians and distant advocacy groups rather than to a station’s local audience. Implicit in that approach is a “one size fits all” assumption about what types of programming meet the needs of each and every local community.

This is obviously a very important proceeding for all broadcasters, since the FCC has made clear that once online public files are implemented for TV, radio is likely next. All broadcasters will therefore want to get involved in this issue once the FCC announces the deadlines for filing comments.

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As a record three billion dollar political advertising season comes to a close, broadcasters must remember that the FCC requires many broadcast stations to stay open for business this weekend. Specifically, all radio and television stations that have provided weekend access to any commercial advertiser within the twelve months prior to the election must provide similar access to federal candidates the weekend before the November 2 election date.

A station only needs to offer federal candidates the same kinds of weekend services that it has previously offered to commercial advertisers. This means that if a station has provided weekend access only for deleting copy or canceling spots, as opposed to selling and scheduling new spots, the station is only required to provide those same pre-election weekend services for federal candidates. Stations also need to keep in mind that they cannot discriminate between candidates with regard to providing access.

According to FCC staff, unlike federal candidates, state and local candidates do not have a similar right to weekend access even if the station has provided such access to commercial advertisers.

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In my recent commentary on the Senate version of the DISCLOSE Act (Senate Disclose Act Bill Raises Serious Concerns For Broadcasters), I highlighted provisions related to the Lowest Unit Charge which had the potential to cause a very significant adverse impact on broadcast station revenues from federal election advertising.

Senator Schumer introduced today a revised version of the DISCLOSE Act. While retaining other campaign finance reform provisions, the new version thankfully eliminates the LUC provisions that were the focus of my concern.

The Act has not yet been passed, and could still be modified either in the Senate or in a Conference Committee with the House. We will continue to monitor the bill and let you know if further attempts are made to reinstate the troublesome LUC concepts.

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