It has been almost a year since the FCC adopted rules for an online public inspection file for television stations. This week, the Commission released a Public Notice requesting comments on how the rules are performing – specifically focusing on the online political file. While the Commission's rules currently require only that the affiliates of the top four networks, in the Top 50 markets, maintain their political files online, the Commission plans to expand that requirement to all television stations in July 2014. But first, it is asking for comments as to how the rules are working so far, whether changes are needed, and perhaps even whether additional information should be required for inclusion in the online political files of TV stations. Comments are also sought on a Petition for Reconsideration filed by various television broadcasters suggesting a different way of complying with the online political file requirements. 

Specific questions on which comments are requested include the following:

  • Have stations encountered particular obstacles in connection with posting documents to the political file?
  • Has online posting become easier over time as station personnel have become more familiar with the process?
  • Are there other steps the FCC could take to make the database more user-friendly?
  • Are smaller stations prepared to use the online file for their political files starting next year? If not, what needs to be done to help them prepare?

The FCC also asks the public, including political candidates and their representatives, to comment on whether they found it easy to access information in the file, whether improvements could be made, and whether the ability to view the file online has been beneficial.  What have interested groups said about the online political file since it was adopted? 

In a recent Congressional hearing, which we wrote about here, Congressmen reflected he views of some public interest groups – seemingly surprised that the information they fought so hard to have included in the online public file – including the specific information about each ad buy by candidates and by non-candidate groups buying ad time on stations to advocate in connection with Federal issues or Federal elections - was so voluminous and so hard to use.  Groups have noted that it is hard to determine how much money was being spent by various organizations for or against political candidates. These groups seemed surprised that the information that the FCC rules originally set up for one purpose (providing information for candidates as to rates and to be able to track the buys by their opponents so that they can plan to use their equal opportunity rights) did not provide easy to discern information about the totality of spending by candidates and groups on particular elections – something that really is not the province of the FCC, but instead of the Federal Election Commission. Yet I would not be surprised to see requests from some of these groups for more information from stations as to these kinds of aggregate spending information. There have even been rumors of requests for information about donors to third-party groups – a request that would seemingly put the FCC outside of its jurisdiction into areas properly governed by the FEC.

Ironically, some of these same groups opposed a plan advanced by broadcasters before the rules were adopted last year that would have provided information about spending in the aggregate in the online public file, rather than specific information about specific buys. In June 2012, when the rules were first adopted, a group of large television station owners filed a petition for reconsideration of the online political file requirements.  The petitioners argued that the disclosure of spot-by-spot rate information required the online disclosure of sensitive price information, which could easily be accessed not only by political candidates and citizens groups interested in the political races that were occurring, but also by station competitors and commercial advertisers. They suggested that this kind of online disclosure is anti-competitive, disrupts markets, and is not required by campaign finance laws.  The petitioners suggested an alternative of keeping this information in paper public files at the stations, consistent with prior practice, and providing an opt-in opportunity for stations to upload aggregate information about political buys.

A public interest group, the Public Interest Public Airwaves Coalition (“PIPAC”) opposed the petition.  The Bureau now seeks comment on the petition and the PIPAC opposition.  The Bureau specifically asks whether the voluntary nature of the proposal might affect the usefulness of the aggregate data collected.  The Bureau also seeks comment on any other mechanisms the FCC might consider to improve consumer access to relevant political advertising data (one of the questions which, as we note above, may lead to comments that seek to require much more political information gathering by television stations as to the sources of political spending).

Comments and reply comments in this proceeding are due August 26, 2013 and September 23, 2013, respectively.