Since our note Friday about November regulatory dates for broadcasters, it’s become clear that the FCC will be acting on two more matters of interest to broadcasters – particularly radio broadcasters though each have some implications for TV as well. First, as we hinted at the end of our article on Friday (the rumors that we had heard having now been confirmed), Chairman Wheeler has circulated a draft Notice of Proposed Rulemaking on the expansion of the online public file to radio (as well as cable and satellite). And, secondly, the FCC has announced that, at its open meeting on November 21, it will open a rulemaking to modernize the disclosure rules for on-air contests conducted by broadcasters – rules which have resulted in FCC fines over the last few years.
The fact that the online public file proposal for radio has now matured into a Notice of Proposed Rulemaking is confirmed by the FCC’s list of Items on Circulation (basically, draft orders that the Commissioners currently have in front of them for review and voting), which now lists that item near the top of its list. See the list of Items on Circulation, here: http://www.fcc.gov/fcc-items-circulation. While most folks in radio knew that the day would come when their public files might be required to go online, the speed with which the FCC now seems to be acting is what is most surprising, as it was only a bit over two months ago that the FCC took comments on whether or not to even consider that proposal (see our article here). But, with lightning speed, the order appears to be moving forward. How fast will it be implemented?
The FCC will likely take comments for at least a few months from the time that the proposal that is adopted is published in the Federal Register. After receiving comments, the FCC has to consider those comments, analyze them, and write a full decision. Even after that is done, there will presumably be a phased in application of the rules, and the FCC will need some time to prepare its own computer systems to hold the files of the radio stations, cable systems and satellite TV companies which will also be covered by this proposal. So it would seem likely that most radio companies will not be looking at implementing these obligations until the latter part of next year.
The proposal will also reportedly level the playing field for TV broadcasters and their multichannel competitors, at least in connection with political advertising. Cable and satellite also have political advertising obligations very similar to TV stations (though the reasonable access rules for Federal candidates do not apply to cable operators). So their political files, including rate information, will be available online, like those of TV stations, if the FCC adopts the proposals. The proposals were in fact initially advanced by certain public interest groups looking for more transparency in political advertising spending.
It is also interesting to note that this proposal is moving forward, even though the FCC still has open its review of the effectiveness of the TV online public file – a review begun back in the summer of 2013 (see our summary here). Perhaps that review, which was not completed before the online public file rules for political files were expanded to small market TV stations earlier this year, may be concluded as part of the upcoming proceeding.
The other order now on circulation that was announced on Friday to be on the FCC agenda for their meeting on November 21, is a proposed review of the FCC’s contest rules. As you may remember, Entercom filed a Petition for Rulemaking, here, several years ago, suggesting changes to the contest rules. The proposal, put out for public comment in 2012, proposed allowing stations to refer listeners to the station’s website for contest rules, instead of requiring that broadcasters read the “material rules” on the air enough times so that a listener is likely to have heard them. The failure to read material rules on the air has been the subject of numerous fines over the last few years, see our articles here, here and here. In many cases where broadcasters give away prizes on the air, there are disappointed contestants that complain that they were denied their opportunity to win. In many cases, the FCC has concluded that the contest was in fact conducted correctly, but fines were still imposed on the broadcaster as the rules were not disclosed on the air as required by the Enforcement Bureau’s interpretation of the rules.
Commissioner O’Rielly several months ago wrote about his support for common-sense proposals for revised contest rules. And it now seems like the FCC will make this common sense change to its rules, as there should be far more real notice of contest rules provided by website disclosures, the existence of which are publicized on the air, rather than relying on fleeting on-air disclosures to the public. The FCC’s agenda for its November meeting is here: . We would hope that the FCC moves as quickly on this proposal as they appear to be doing on the online public file revisions.