One of our regular readers reached out to us Tuesday to let us know the trouble he’d been having when attempting to upload his Q4 quarterly issues file, which are due January 10, to the FCC website. With the government being closed for business, that is impacting the FCC.
Kevin Terry from Montana Radio tells Radio Ink that for stations that bookmarked the normal public final login site, they are linked to a public notice about unavailability of certain FCC databases rather than the normal login screen. “For those of us that simply Google “FCC public file” to get there, however, a demo site of the FCC public file login becomes the first item in the Google listing due. With the exception of the word ‘demo’ in the address bar, one cannot tell the difference between the demo site and the ‘real’ site, which is off-line due to the government shutdown. I have normally navigated to the site using Google as I have not bookmarked it yet.”
Once Terry logged in and started uploading his fourth-quarter issues and programs reports, he noticed that his third-quarter reports were missing. “I could not believe that I had forgotten to upload one in the previous quarter for a station. This is a big deal since all uploads are time stamped and, at license renewal I would have to answer ‘no’ on the license renewal question if I had placed all items in the public file in a timely fashion. I was not happy at all. Then I went to the second station in my group and noticed the same thing. This could not be. There is no way I missed two stations. Then I noticed that many of my political files were missing from the recent election from October and November. This raised my curiosity.” Terry says that’s when he noticed the word demo in the address bar.
Terry then noticed on the “recent activity” side of the login screen of the demo sitenseveral stations uploading their reports — and many were uploading the third-quarter reports as well, most likely panicking like he did thinking that they had forgotten last quarter.
Terry goes on to say that this is bad in two ways. “One, people are unnecessarily thinking they screwed up. Second, people that are uploading their fourth-quarter reports right now will most likely have to upload them again once the main system comes back online when the government reopens. This could be a major headache for a lot of broadcasters.” Indeed. So after hearing what Terry had to say, we turned to the expert for more information. Broadcast attorney John Garziglia fills us in on what he’s been telling broadcasters.
By John Garziglia
As of noon on January 3, FCC operations are suspended as a result of the governmental shutdown. Below are some of the ramifications that an extended FCC shutdown may have for broadcast stations. The relevant FCC Public Notice regarding the shutdown may be viewed at: Impact of Potential Lapse in Funding on Commission Operations.
The most immediate concern is that the FCC has terminated public and broadcast station access to all online public files during the shutdown. New material cannot now be uploaded to broadcast station online public files, and the public cannot view them.
This raises the issue of what broadcast stations are to do on the upcoming January 10 deadline for uploading the 4th Quarter 2018 Issues/Programs Lists, as well as how to handle political file material.
ISSUES/PROGRAMS LISTS:
The 4th Quarter 2018 Issues/Programs Lists should be timely prepared despite the shutdown. If the FCC should resume normal operations on or prior to January 9, then the 4th Quarter 2018 Issues/Programs Lists are required to be uploaded by January 10. If the FCC remains closed on January 10 and beyond, then the 4th Quarter 2018 Issues/Programs Lists must be uploaded on the second business day of normal resumed FCC operations.
POLITICAL FILES:
For political files, there is a back-up file requirement. The FCC imposed at paragraphs 29-31 of the January 28, 2016 document titled Online Public File Expands to Radio, Cable and Satellite the requirement that broadcasters “make back-up files for the political file available to the public to ensure that they can comply with their statutory obligation to make that information available to candidates, the public, and others immediately.” The FCC required these backups “only if and during such rare times as the Commission’s online public file is unavailable.”
This now appears to be one of those “rare” times. The FCC advised that “entities may choose to meet the political file back-up requirement by periodically downloading a mirror copy of the public file, including the political file, housed on the FCC’s database.” The FCC advises that the back-up files may be retained either in paper or electronic form, or made accessible to the public online via the entity’s own website.
It is, of course, highly doubtful that most stations have a full back-up ready of the political contents of their online public file. But, should you be asked by a politician or member of the public for a political document or the political file, you should endeavor to make such documents available to the requesting party from whatever internal files you currently have. If you think someone is trying to trap you or otherwise take advantage of the shutdown to test the availability of such documents, I encourage you to immediately consult with your communications law counsel.
OTHER RAMIFICATIONS:
Other broad ramifications of the shutdown include FCC applications for assignments and transfers of licenses, facility modification applications, call sign changes, and other routine applications. None of these will be acted upon by the FCC, thus bringing to a standstill any broadcast station transactional or improvement activity. But, the FCC databases that contain broadcast facility information, unlike during the 2013 shutdown, remain available to the public. Also, the Commission’s ECFS system which contains public filings in FCC docketed proceedings, remains available.
Notably, the FCC’s broadcast station filing systems remain operational although the FCC filing fees imposed upon most applications cannot now be submitted. But, to the extent that it makes sense to file a broadcast station application during the shutdown, those can now be filed, with a payment of the requisite FCC filing fee and action following the resumption of normal FCC operations.
John Garziglia is a communications attorney at Womble Bond Dickinson and can be reached at (202) 857-4455 or [email protected]
NOTE: Scott Flick from Pillsbury Law also wrote about FCC website issues in a blog post yesterday. Read it HERE
Broadcast Attorney David Oxenford has written about it HERE
It’s absurd to require any report, much less quarterly issue reports,to the government. This smacks more of Beijing or Moscow than Main Street USA.
There is almost NO reason for regulating radio or television in this media rich environment. This is worthy of Chairman Pai’s consideration. Despite effort of his and others to free broadcasting, the FCC still remains in large measure the Federal Cannot Commission. And ninety percent of the Commission’s regulatory requirements hearken back to the 1930’s. They make no sense or of no use today and should be trashed. And many never made any sense.
The main reasons seem to be to breathe justification into regulatory jobs and industry representation employment.
We’re just uploading PDF files to a computer. I suppose the computer had to be shutdown because the guy at the FCC who sits and watches the flashing lights on the server has been designated “nonessential.”
Watch. The government shutdown will end. Then the FCC will re-open filing but give us just two days to upload all our “issues” reports.
The FCC is shutdown because it is a non-essential service. Amen.