By John Wells King
Special to RBR+TVBR
The FCC’s Online Public Inspection File server for radio and television broadcasters has been “live” for nearly three years.
Much has been written about what goes in the OPIF, and when. And, the FCC provides a good summary at publicfiles.fcc.gov/about-station-profiles.
Little attention has been paid, however, to what comes out of the OPIF: the co-equal obligation to remove expired material.
In setting up the parameters of the OPIF, the Commission underscored the importance of keeping it lean.
It is important that stations maintain orderly public files. While one key goal is increased disclosure, another is to be able to provide the public with relevant information in an efficient manner.
But, there is concern that if material is never removed from the online public file, it will be difficult for the public to find information that is relevant. Each station’s online public file should not become so overgrown with out-of-date documents that it is difficult to access relevant materials.
To be sure, the Commission is a partner in contributing to the growth — and overgrowth — of the OPIF. The agency ported into station OPIFs decades of applications and reports from the Media Bureau’s legacy Consolidated DataBase System (CDBS). Some material dates from the 1980s.
Here, then, is a guide for culling the OPIF. Material uploaded by stations can be deleted by moving them to a wastebasket icon. Material ported by the Commission, however, cannot be deleted, but may only be toggled “in” or “out.”
Applications and Related Materials
The Commission ports applications to the OPIF. In many cases the information from CDBS is simply a file number, with no link. Any application for a Commission authorization should be toggled “out” once it is granted.
(All references to the Commission grant of an application mean a grant that has become a “final action,” no longer subject to review or appeal, or, forty days after public notice of the grant.)
The same is true with documents ported to the “Others” tab, such as a Form 732 consent authorization reflecting the grant of an assignment or transfer. Toggle them “out.”
Exceptions to the general rule are (1) a Special Temporary Authorization, to be retained for as long as it is in effect, and (2) an application for a construction permit or for assignment or transfer of a license that is granted pursuant to a waiver, for as long as the waiver is in effect.
The Additional Documents sub-folder allows a station to upload additional material relating to an application. Any such material should be deleted, once the application to which it refers is granted (but with the exception for waiver cases).
Ownership Reports and Related Material
The Commission ports Ownership Reports to the OPIF. All Ownership Reports should be toggled “out” except the most recent Report. In most cases this will be the 2019 biennial report. In cases of ownership changes since then, the post-consummation report is the only one that needs to be toggled “in.”
Any document uploaded to the Contracts and Agreements folder that is no longer in force should be deleted. This includes material such as an expired network affiliation agreement.
Political Files.
Requests for broadcast time by or on behalf of candidates for public office, the disposition of the request, and charges for the time, must be kept for a period of two years. The rule does not specify whether the period runs from the date of the request, the dates of the broadcasts, or the date of the election, but a conservative approach suggests not deleting the material until two years after the election.
EEO Records
The Commission ports Form 396 and Form 397 EEO reports to the OPIF. The Form 396 Broadcast EEO Program Report, filed with license renewal applications, must be kept for the entire eight-year term of the station license, until grant of the next license renewal application. Thus, a station whose license was renewed in 2020 should toggle “out” the Form 396 filed in 2012 (and 2004 if present). The same is true of the Form 397 Mid-Term Report: the 2016 (and earlier) Form 397 should be toggled “out” after grant of the 2020 license renewal application.
Annual EEO Public File Reports (filed only by stations with five or more full-time employees) must be kept for the entire eight-year term of the station license. Thus, a station whose license was renewed in 2020 should delete annual EEO public reports for the period 2012-2019. Similarly, FCC EEO audits and responses must be retained until the grant of the next license renewal application, and then should be deleted.
Material Relating to FCC Investigation or Complaint
The Commission will port a Letter of Inquiry or other correspondence initiating an investigation to the OPIF. It, and all responses and additional material, must be retained until the Commission notifies the station in writing that the material may be deleted.
Quarterly Issues/Programs Lists, Children’s Television Programming Reports, and Children’s Television Commercial Limits Certifications must be kept for the entire eight-year term of the license. Lists from a prior license term should be deleted once the succeeding renewal application is granted.
Local Public Notice Announcements for a license renewal application should be deleted after the grant of the renewal to which the announcements refer.
Radio and Television Time Brokerage Agreements, Joint Sales Agreements, Shared Service Agreements, and Citizen Agreements should be deleted if no longer in force.
Must-carry or Retransmission Consent Elections for any period earlier than the triennial period beginning October 1, 2020, should be deleted.
Political Matters and Controversial Issue Disclosures, as with material in the Political Files, should be deleted after two years.
Donor Lists required to be maintained by noncommercial (NCE) stations should be deleted after two years of the last broadcast of the specific program supported.
Quarterly Third-Party Fundraising Information must be maintained by NCE stations for the entire term of the license, in the same manner as issues/program lists.
The Commission permanently embeds certain material in the OPIF, such as the station’s license and renewal authorizations, contour map, and copy of the required “The Public and Broadcasting Manual.” These documents do not need to be uploaded, and in the author’s opinion, should not be, because they would contribute to the clutter the Commission disfavors.
Veteran broadcasters may recall a time when license renewal, and the public file recordkeeping that went along with it, fell under the category of “regulation by the pound”: the application was bulky and included reams of paper consisting of program logs, public surveys, and audience testimonials. Recognizing that we live in the internet age, the Commission designed the OPIF to provide a concise snapshot of a broadcast station’s performance in specific particulars.
It is in the broadcaster’s, as well as the public’s, best interests to accept the Commission’s invitation: keep it brief.
John Wells King is a veteran FCC lawyer practicing in Jacksonville, Fla.
