Political File Fight Goes Down to the Wire
NBC, ABC and Fox ask for reconsideration of alternative filing method
July 25, 2012
of the new public inspection file rule are asking a federal court not to block it
pending judicial review. The Federal Communications Commission, along with a
group of intervenors, asked the U.S. District Court for the D.C. Circuit to reject
an emergency motion from the National Association of Broadcasters to stay the
rule before it goes into effect Aug. 2. The rule requires TV stations to post
the information in their public inspection files online, including the rates
they charge for political advertisements.
The rule “establishes no new recordkeeping or reporting obligations,” the FCC’s
filing with the court states. “Moreover, all the information at issue here is
already public, and has been by law for decades.”
The commission said the rule “merely updates existing requirements by enlisting
the Internet to make it easier for the public to access public political file
information without having to travel to a station’s main studio, search the
station’s paper files, and pay for paper copies.”
The NAB says TV stations will suffer “irreparable harm” without a stay of the
rule because it requires them to “post the prices for specific advertisements
to a public website immediately after the sales.” It also argues that the FCC
does not have jurisdiction over election-related information—the purview of the
Federal Election Commission under the Bipartisan Campaign Reform Act.
The FCC counters that it is not limited by the BCRA, and that a stay would harm
the public interest by limiting access to the debated documentation. It also
says the NAB can’t demonstrate its claim of irreparable harm and therefore does
not meet the conditions of a stay.
Intervenors, including Free Press, Benton Foundation, Campaign LegalCenter,
Common Cause, New America Foundation and the United Church of Christ, agreed.
“NAB’s allegation of harm is entirely speculative,” their filing with the court
stated. “It offers no evidence that online publication of information, which
has been on the public record for decades, will somehow create a new harm.”
The intervenor filing included support declarations from groups that collect TV
station public inspection file information. Candace Clement of media watchdog Free
Press said her group started doing so last year, subsequently launching a
program that taps volunteers and journalists to collect political ad data.
So far, she said staff and volunteers have visited more than 50 TV stations to
access public inspection files. Frequent updating requires frequent visits, she
said, and photo-copying charges ranges from 5 cents to $2 a page. One station,
she said, would accept only checks or money orders for copying charges.
“As a consequence of these obstacles, it is impossible for Free Press and its
partners to personally visit and collect political file information from all
the major broadcast affiliates in large media markets if the FCC online public
file rule were not to go into effect as scheduled.”
The political ad rate data is the primary sticking point for broadcasters, who must
offer candidates their lowest unit rates within 45 days of a primary election
and 60 days from a general election.
Barrington, Belo, Cox, Raycom, Gannett, Hearst and several other station groups
suggested licensees post the total amount spent by candidates online, while
retaining detailed daily ad rate information in paper form. NBC, ABC and Fox recently
endorsed this alternative plan for their owned-and-operated stations.
“Because the calculation of the statutory ‘lowest unit charge’ is based on a
television station’s most favorable commercial advertising rates,” the networks
wrote in a July 24 letter to FCC Secretary Marlene H. Dortch, “the online
disclosure of detailed rate information automatically reveals competitively
sensitive information about a station’s entire rates structure.”
The networks asked the FCC to reconsider its rejection of the alternative
“The network-owned stations also believe that adoption of the… alternative for
online political rate reporting will have no negative impact on the commission’s
efforts to implement the new online public file system for TV broadcasters.
Nothing in the proposal touches on the commission’s overall approach—as either
a legal or technical matter—for moving most public file material to an
FCC-hosted database. The… concept simply would affect the informational scope
of certain documents in the political section of each station’s web-based
~ by Deborah D. McAdams