At its open meeting earlier this week, the FCC adopted a Notice of Proposed Rulemaking proposing changes to the public file rules for both broadcasters and cable systems. For commercial broadcasters, the FCC proposed to eliminate the requirement that they include in their public file copies of letters and emails to the station concerning station operations. For cable systems, the FCC proposed to eliminate the obligation to include in their file documents disclosing the location of their headend. What do these proposals mean for broadcasters?

Most of the broadcaster focus has been on the proposal to delete the obligation that commercial broadcasters keep a correspondence folder in their public inspection file for letters and emails from the public commenting on the operation of the station (the requirement has never applied to noncommercial broadcasters). Those files are supposed to contain, in a physical file at their main studio, all of the correspondence that stations receive from listeners (allowing broadcasters to omit correspondence that listeners asked to be kept private, and correspondence that contains offensive material). For TV stations that have already converted to an online public file for all of their other public file documents, and for radio stations who will soon be doing so (see our posts here and here on the upcoming obligation of radio to convert to an online public file), these letters will be the only remnant of the public file that must still be maintained at the main studio. The FCC tentatively concluded that the obligation to keep these letters and emails was no longer necessary.

Why do this now? First, the FCC is looking to reduce burdens on broadcasters, the most prominent reason given in the NPRM. The FCC said that physical letters are almost never sent anymore, and the collection of letters and emails really serves no regulatory purpose as, if members of the audience have serious issues with a broadcaster’s performance, they can always complain to the FCC. The letters are never really reviewed by the FCC for their substance. The NPRM asks for comments on this conclusion, specifically asking how often stations get requests from the public to review the file, and whether it is missing anything in its analysis that the file containing these letters adds nothing to the oversight and regulation of broadcasters. The FCC also asks for comments as to whether social media provides another source from which the public’s reaction to a broadcasters operation, and as to whether it is serving the public interest, can be assessed (a point which we raised in our post here).

Beyond the fact that these files are unnecessary, the concurring opinions of the Commissioners also point to security issues. Commissioner O’Rielly (as we wrote here) was particularly concerned about the fact that, by maintaining any vestige of the physical public file, broadcasters were still required to provide the public unfettered access to that physical file in the main studio of the station. Allowing unfettered access during normal business hours could result in security threats to stations. Chairman Wheeler’s statement echoes these concerns, noting that by leaving stations only with the obligation to make their public file available online “This should enable such broadcasters to lock their doors and redeploy resources once used to help the public access the public file.”

But will elimination of the letters from the public really allow stations to “lock their doors”? The public file rule appears to be the only rule that explicitly demands that stations provide the public unfettered access to their studios. While there is still a requirement that stations maintain a main studio which, under precedent established through specific cases (see for instance our articles here and here), needs to be manned during normal business hours, there does not appear to be an explicit obligation allowing the public to physically access that studio during those hours. We would hope that the Commission, if it indeed decides to do away with the obligation to maintain a physical file with these letters from the public, makes clear that broadcasters can require appointments for visitors to the station facilities and need not continue to allow anyone, anytime to walk into the station.

In fact, the very concern about security figured more prominently in the FCC’s decision to propose the elimination of the requirement that cable operators specify, in their public file, the location of the headend of their system. The Commission tentatively concluded that the public generally did not need that information. Those who do need it (e.g. TV broadcasters who must provide a usable signal to the cable headend for must-carry purposes) can get it directly from the cable operators themselves.

Comments on these proposals are due 30 days after this NPRM is published in the Federal Register. Reply comments are due 30 days after that.