FCC Public File Proposal Seen Getting Little Pushback
An FCC rulemaking notice that would remove the last physical vestiges of the broadcaster public file as well as a requirement for cable carriers to keep on hand the location of their control centers (see 1605050060 and 1605040066) is expected to get little pushback, broadcast attorneys and cable industry officials told us. Though most aspects of the public file are online, broadcasters still have to keep physical copies of public correspondence in a physical public inspection file, and cable carriers must do the same for the addresses of their network control centers, under current FCC rules. Broadcasters and cable carriers said the requirement to make physical documents available to the public compromises their security.
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“I would be surprised if there is any significant opposition,” Wilkinson Barker broadcast attorney David Oxenford said in an interview Friday. The NPRM is seen as having bipartisan support on the FCC, since Commissioner Mike O'Rielly repeatedly raised the issue of improving security by not requiring broadcast and cable facilities to be open to the public. In a blog post last week, FCC Chairman Tom Wheeler said he circulated the NPRM at O'Rielly's request. The NPRM is set for the FCC's May 25 meeting.
The item is expected to remove the requirement for broadcasters to keep physical copies of correspondence in a file available to the public, several industry officials told us. The removal of the requirement would allow broadcasters to keep their public file entirely online, and remove the last barrier to keeping their stations closed to the public, broadcast attorneys told us. This would be a particular boon to radio operators, who typically have small staffs and limited security personnel, Wilkinson Barker broadcast attorney Howard Liberman said. “'I'm here to see the public file'" is the "open sesame" phrase of broadcasting, and a "major security risk," Pillsbury Winthrop attorneys Scott Flick and Jessica Nyman said in a blog post. They and Oxenford referenced in blog posts an incident in Baltimore last month in which a man claiming to be carrying a bomb attempted to get into WBFF Baltimore and was eventually shot by police. “Minimizing these threats by removing one pretext for people to enter broadcast studios unchallenged is an important consideration in these deliberations,” Oxenford said in a blog post.
Cable carriers also want to be able to keep their facilities closed to the public, NCTA said in an ex parte filing in March. “The need to retain headend location information locally impedes cable operators from fully transitioning to an online file and should be examined.” Public correspondence could contain personally identifying information, and a cable headend address seems to be sensitive security information, so the FCC has exempted them from past online file requirements, attorneys told us. Since those requirements are now the only thing forcing broadcasters and carriers to have a physical file, it's time for them to go, attorneys told us. “It's a commonsense update to the rules,” said American Cable Association Senior Vice President-Government Affairs Ross Lieberman.
Public interest groups, including the Sunlight Foundation and Campaign Legal Center, that have been active in commenting on FCC changes to public file rules are still considering the proposal, their attorney, Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman, told us. Public correspondence files were once a factor in FCC license renewal proceedings, he said, though broadcast attorneys told us the commission doesn't now look at collected public correspondence during that process. Although there's a question about letters from the public concerning violent content on the license renewal form, it doesn't refer to the public file, the attorneys told us. “Any survey of broadcasters will reveal that virtually no one comes to a broadcast station to view these letters,” Oxenford said. Online comments and social media have largely replaced the function of the public correspondence file, numerous attorneys told us.