At its Open Meeting on May 25, 2016, the Federal Communications Commission (“FCC”) issued a Notice of Proposed Rulemaking (“NPRM”) proposing to eliminate two public inspection file requirements – one that applies to broadcast stations and one that applies to cable operators. Specifically, the FCC proposes to eliminate the requirement that commercial broadcast stations retain and make publicly available copies of letters and emails from the public (the “public correspondence file”), as currently required by FCC rule 73.3526 (47 CFR §73.3526(e)(9)). The FCC also proposes to eliminate the requirement that cable operators include the location of their principal headend in their public inspection files, as currently required by FCC rule 76.1708 (47 CFR §76.1708).

Broadcast Station Public File

In 2012, the FCC changed its public file requirements to require television broadcasters (but not radio broadcasters at that time) to post all public file documents in an online FCC database with one exception – the requirement was not extended to the public correspondence file due to concerns related to consumer privacy. Instead, commercial television broadcasters were required to maintain local public inspection files at their main studios solely for the purpose of providing the public with access to the correspondence. As a result, television broadcasters have been unable to take full advantage of moving all their public files online.

Earlier this year, the FCC adopted a similar order requiring radio broadcasters, among others, to post their public inspection files in an online FCC database, again excepting the public correspondence file. If the rules remain unchanged, then commercial radio stations will also be required to maintain a local public inspection file at their main studio for the sole purpose of allowing access to the public correspondence file. (As a note, there is no public correspondence file requirement for noncommercial broadcasters, cable operators, DBS providers, or satellite radio licensees, all of which have other public inspection file obligations.)

The goal of the public file requirement is “to ensure that broadcasters comply with their public interest obligation to air programming that is responsive to the needs and interests of their community of license.” Recognizing that any critical information regarding a licensee’s performance can be raised at renewal time or in an FCC complaint, the FCC now proposes to eliminate the requirement that commercial broadcasters retain a local public correspondence file. Although listeners and viewers will still be able to communicate with and leave comments for commercial broadcasters, this rule change will allow TV and radio broadcasters to eliminate the need for maintaining a physical local public inspection file once all required documents are posted online.

In soliciting comments on this proposal, the FCC asks whether there are benefits to maintaining correspondence from the public at the studios, how often consumers ask to review that correspondence, and whether that information is useful or can be obtained through other means. The FCC also asks whether the use of social media to communicate with broadcasters has changed the dynamic of the interaction between broadcasters and their viewers/listeners, and whether the benefits of retaining (or eliminating) local correspondence files outweigh the costs.

Although not raised in this NPRM, one wonders if the FCC will also reconsider the main studio staffing requirement should the local public correspondence file be eliminated. One of the principal reasons for requiring a staff person to be at the main studio during regular business hours is to provide access to the local public inspection file. If stations are no longer required to have a local public inspection file, then theoretically there is no need for a local staff person either. We will have to see if this issue is raised in a future rulemaking proceeding.

Cable Operator Public File

In the same order passed earlier this year that requires radio broadcasters to post their public inspection files online, the FCC imposed that obligation on cable operators as well. The new NPRM takes into consideration industry comments that cable operators are hesitant to include the location of their principal headend in online databases due to security risks. The FCC recognized that the general public has no use for this information, and thus proposes to eliminate the rule that cable operators include information regarding the location of their headends in the public inspection file as set forth in 47 CFR § 76.1708. However, the FCC noted that television stations and local franchising authorities should have access to this information. Accordingly, the FCC is soliciting comments on how to make this information available to entities that need to know the location of a cable system’s principal headend (e.g., upon request).

Initial comments on the Public File NPRM will be due 30 days after publication in the Federal Register, and reply comments will be due 30 days later. We will keep you advised of those dates when they become available.