Eleventh-Hour Move on Media Rules?

Sources say FCC will move to review 'enhanced disclosure' decision

It is likely the FCC will decide to review its decision to require broadcasters to provide the government with more detailed information on what programming they air and how they made the decision to air it.

That comes from sources both inside and outside the commission, who expect it to approve a request by broadcasters and others that it reconsider the so-called “enhanced disclosure” item the FCC approved in an effort to wrap up its review of media ownership rules last year.

Broadcasters fear that the new reporting requirement would increase their paperwork dramatically while reducing their protections under another piece of paper, the U.S. Constitution. But most broadcasters, including the National Association of Broadcasters (NAB) and the ABC Affiliates Association, bypassed the FCC and went straight to court, hoping for a swift decision overturning the commission.

Why the rush? According to one veteran communications attorney, those groups were hoping to have the issue resolved before there's a new commission that would be appointed if Sen. Barack Obama is elected as president.

At presstime, FCC Chairman Kevin Martin's office had no comment. The commission is not expected to reverse the decision to require more information, only to tweak it to make it less susceptible to court challenge and more likely to pass muster with the paperwork police at the Office of Management and Budget.

That could mean better justifying the requirements, or making them somewhat less paperwork-intensive. The latter would appeal to Martin's fellow Republican Robert McDowell, who dissented from that part of the item the first time around.

McDowell told B&C he did not know whether it was being considered, but said he would be “delighted” if the commission would reconsider the item, “so long as it was to overturn or modify the most onerous parts.” It could also include clarifying that noncommercial stations are exempt from the reporting requirement, which those stations asked for in comments on the item.

The U.S. Court of Appeals for the District of Columbia, where the broadcaster appeals were lodged, said it would not take up the case until the FCC had dealt with the petitions to reconsider. It gave the FCC until this month to provide a report on its progress in reviewing those petitions.

As part of the enhanced disclosure decision, the FCC voted to require broadcasters to put all the information in their public files online. It also came up with a new, more detailed quarterly program reporting form that required broadcasters to identity new categories of programming.

The FCC will likely be trying to improve its chances with the OMB, which has to approve all new forms to make sure the added paperwork is justified. A commission source said he, too, expected the FCC to vote to reconsider the decision, citing the chance to give noncommercial stations an exemption as one reason.

Broadcasters argued that the new programming categories would wind up being content control by proxy, raising First Amendment issues. But broadcasters also argued that the change would be a massive additional paperwork burden.

Commissioner McDowell agrees. “This form is government's not-so-subtle attempt to exert pressure on stations to air certain types of content,” he said when the provisions were adopted.

He also said that they would, ironically, “burden the best local stations more than less responsible ones by requiring them to dedicate more resources to reporting all the good things they do for their communities, instead of just doing them.”

The commission has already gotten smacked down by the OMB over one recent decision that created more paperwork—new reporting requirements for cable operators' lease of channels to outside programmers.

The OMB, which vets any regs that create more paperwork, said the FCC had not justified the new requirements. The commission, which has not yet gotten OMB's OK on the enhanced disclosure form, likely does not want a repeat of that trip to the bureaucratic woodshed, either.

The FCC has also felt pushback from some fiscal and political conservatives over enhanced disclosure. Rep. John Boehner (R-Ohio), for one, says that requiring stations to file reports on what types of programming they were carrying would be a “stealth enactment of the Fairness Doctrine.” Martin has said repeatedly, and as recently as two weeks ago, that the FCC has no plans to reinstate the doctrine.

“One thing is clear,” says the communications attorney, “while there is great uncertainty about the outcome of this proceeding, there are major hurdles to be overcome both at the OMB and in the court.”