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Political File Fight Goes Down to the Wire

WASHINGTON: Supporters 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 proposal.

“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 public file.”
~ by Deborah D. McAdams