Letters From the Public: Pai FCC Takes First Step on Broadcast Deregulation

by Pillsbury - CommLawCenter

It took a while to get to this point, but at the first public meeting of the Pai FCC, the Commission voted today to eliminate the requirement that stations maintain “Letters and Emails from the Public” in their public inspection files. As discussed below, that decision will have differing impacts on TV and radio stations, and even among radio stations.

When the FCC charged ahead to move television public inspection files online in 2012, there didn’t seem to be any upside for broadcasters, who objected loudly. Those objections were primarily based upon the fact that the FCC had managed to find a way to expend even more of a broadcaster’s resources on the rarely-read file, requiring that it now also be uploaded to an online FCC database. Uploading a public file is no small task, as an FCC review of TV public files in Baltimore in 2012 revealed that some contained more than 8,000 pages. In response to those objections, the FCC announced when it adopted the change that it would automatically upload applications, kidvid reports, and other documents it had access to, reducing the number of documents stations would need to upload themselves.

After TV public files moved online in 2012 (accompanied by efforts thereafter to fix various database bugs and issues), the FCC began moving radio files online in 2016. In both cases, the FCC concluded that it would not require, and in fact would prohibit, broadcasters from uploading the “Letters and Emails from the Public” portion of the file out of privacy concerns for the letter writers. The result was to ensure that even after every other portion of the file moved online, stations would still have to maintain a physical public file at their main studio. This meant that stations would have to continue to staff their stations so as to ensure that any visitor could be immediately shown the file during normal business hours, including lunch hours. More importantly, it meant that at a time when media outlets are under increasing threats of violence, they can’t secure their studio doors, instead having to immediately invite in anyone who shows up and asks to see the public file. In fact, the FCC’s rules actually prohibit stations from asking a visitor much more than their name and address, and allow stations to refuse access only “for a limited time during a period of violence or threat of violence.” In short, online public files created more work for stations, while retaining all of the disadvantages of the physical public file.

When the FCC launched the proceeding to consider moving radio public files online, it asked for comment on whether such a requirement should be phased in over time based on the type of station. Pillsbury filed comments on behalf of all 50 state broadcasters associations supporting a phased-in approach, but also noting that the best way of minimizing the drain on station resources while also encouraging stations to move online earlier than required would be to eliminate the requirement that letters and emails from the public be retained in the public file. Eliminating that requirement, which is already of dubious value in the age of social media, would allow public files to move completely online, eliminating the need for a physical public file and the associated headaches and security risks for stations. There would be an upside for stations moving their public files online, and perhaps a big enough one that some stations might actually welcome the move.

While it surprised no one when the Wheeler FCC proceeded to adopt an online public file requirement for radio, we were encouraged that the adopting order did phase-in the requirement and suggest the FCC would revisit the Letters and Emails from the Public requirement at a later date. Not long thereafter, the FCC adopted a Notice of Proposed Rule Making in May 2016 proposing to eliminate the requirement. After comments were filed, the proceeding went silent at the FCC, and it appeared that it might have become yet another victim of the internal partisan conflicts at the FCC that made adopting even simple changes challenging. The FCC ultimately managed at least some bipartisanship on the item, with Chairman Wheeler announcing it as the sole item on the January meeting agenda—a meeting scheduled to be held after his departure from the Commission.  That made it the first agenda item voted on at a public meeting of the Pai FCC.

So what is the immediate impact? Well, first of all, the change won’t go into effect immediately. Typically, it takes about two months after the text of an adopted order appears in the Federal Register for a new rule to go into effect, and if any aspect of it requires approval of the Office of Management and Budget because it affects information collection by the government, it can take considerably longer. Once it goes into effect, stations will no longer have to retain Letters and Emails from the Public in their public file. But whether a station can secure the front door of its studio will depend on whether all other portions of the file are already online. That is not a problem for TV stations, as they have been required to have all other portions of their public file online for a while now. Radio stations, on the other hand, have only recently begun to move their public files online, with commercial stations that are located in the top 50 markets and which have five or more full-time employees having to upload all documents except for the political file by December 24, 2016. Because such stations have only had to upload their political file documents on a going-forward basis since June 24, 2016, unless such a station elects to also voluntarily upload all of its last two years of political documents (the political file retention period), it cannot eliminate its physical public file until June 24, 2018, at which point the station will have uploaded on a going-forward basis two years of political file documents.

All other radio stations, including noncommercial stations, are not required to upload their public file documents until March 1, 2018, and again, that excludes political file documents, which only must be uploaded on a going-forward basis beginning on that date. As a result, radio stations in this “Second Wave” won’t have all of their public file documents (including political file documents) online until March 1, 2020. Consequently, these stations won’t get the benefit of eliminating their physical public file until 2020 unless they elect to upload all public file documents, including the political file, earlier than that.

Of course, even once the rule change goes into effect, stations should still review their letters and emails from the public for two reasons. First, it’s just good policy—and arguably a requirement of each licensee’s obligation to regularly ascertain the needs and interests of its community—to examine the content of such correspondence for the suggestions and concerns of the public. Indeed, some of our broadcast clients insist on responding to each and every letter, knowing that it is the most effective way of diffusing a problem before it becomes a larger issue at license renewal time.

Second, for TV licensees, it’s long been required by Section 308 of the Communication Act. That provision was amended in 1996 to add the following language to the statute:

Each applicant for the renewal of a commercial or noncommercial television license shall attach as an exhibit to the application a summary of written comments and suggestions received from the public and maintained by the licensee (in accordance with Commission regulations) that comment on the applicant’s programming, if any, and that are characterized by the commentor as constituting violent programming.

As a result, television licensees have had to review letters and emails from the public for any assertions that the station’s programming is violent, and attach a summary of that correspondence to their license renewal applications, since 1996. When this language was added to the statute, the FCC changed its license renewal application form to include a question requiring TV applicants to attach a summary of public correspondence regarding claims of violent programming.

Of course, the lawyers among us are now looking a bit more closely at Section 308, and wondering if this provision has effectively been mooted by today’s action. If stations are required to provide a summary of all violence-asserting correspondence that is “received from the public and maintained by the licensee (in accordance with Commission regulations),” there arguably is no such correspondence any more. However, the FCC’s current license renewal form interprets Section 308 quite broadly, stating in the instructions to the form that the “Licensee certifies that no written comments or suggestions have been received from the public that comment on its station’s programming and characterize that programming as constituting violent programming.”

As we are currently between license renewal cycles, now would be the perfect time to revise the license renewal form to eliminate that question which, to be honest, was an effort by Congress to influence the programming choices made by broadcasters through license renewal intimidation. Setting aside the First Amendment implications, in the age of Game of Thrones, Westworld and infinite variations of Call of Duty, asking about claims of broadcast program violence seems downright quaint.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pillsbury - CommLawCenter | Attorney Advertising

Written by:

Pillsbury - CommLawCenter

Pillsbury - CommLawCenter on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.