Written by Attorney Joe Irby

What needs to be in my public file? How do I maintain it?

The public file is arguably one of the most regulated aspects of a broadcast station. Many times, a station may be in full compliance regarding everything they do except for one, small thing – they haven’t put the right (or enough) information in the public file, or the file is out-of-date.

Federal courts in Office of Communication v. FCC clarified that a broadcast station’s primary purpose is to serve the public. The Court held that the public has a right to know how the broadcast license holder is serving the public, and the public has a right to provide comment relating to the way the license holder is serving the public. One of the ways to achieve this transparency and promote the fluidity of ideas between license holder, the public, and the FCC is to require each station to maintain a public file.

The public file must be located at the station’s main studios.

New stations or stations that have changed locations must maintain the public file in a place that is accessible to the public within the city of license.

Notification of a Public File

A public file is a list of records that each broadcast station must keep on hand for members of the public to view. The FCC requires, in 47 CFR 73.1201(b)(3) that television stations must broadcast an announcement twice daily, once between 6 p.m. and midnight, of ways for the public to access the public file. The broadcast announcement must include:

  • The existence of a public file
  • The location of the public file
  • The accessibility of the public file

Contents of the Public File

Just what exactly belongs in the Public File can be a confusing topic for many broadcast station operators. The FCC has laid out a comprehensive list of everything they require for a station’s public file in 47 CFR 73.3526(e)(1-17). Broken down, those requirements are:

Any FCC documents which authorize the construction and operation of the station (copy of the license) and any other documents that reflect modifications or conditions that the FCC has placed on the authorization to operate the station. Keep these documents in the public file until they are replaced with new authorizations.

Any application made with the FCC and any other material related to each application. Also, keep any initial decisions related to these applications. These decisions should be kept in the file until a final decision has been made on the application.

Citizen agreements and other documents that deal with the goals or proposed practices of the station. Usually, this includes agreements as to how the station is operated in the public interest. Often these are things like public interest in the programming (PSA lists) and employment (EEOC standards and compliance). Advertising contracts, union contracts, personal service contracts, network affiliation, syndication, and program supply contracts do not need to be kept on record in the public file.

Contour maps reflecting the service area of the broadcast station that were filed with the application. It must show the transmitter location, service area, and at least list the main studio location. These maps must be kept in the public file as long as the information they reflect is current and accurate.

Ownership reports that have been filed with the FCC. These reports must be current and accurate. In conjunction with these reports, any statements or documents filed with the FCC certifying that the current report is accurate should be included in the public file. Other documents in conjunction with the ownership reports should be included as well.

Political file and records that relate to broadcasts of candidates running for public office. These records must be retained for two years.

Equal Employment Opportunity files must be kept in the file. These records and documents should be kept in the public file until the station’s next license renewal is granted.

A copy of the manual titled “The Public and Broadcasting.”

Letters and e-mails from the public regarding the operation of the station unless the letter’s author explicitly does not want the letter to be made public. Only e-mails addressed to station management or other e-mail addresses that the station publishes need to be retained. Letters and e-mails to individual employees’ personal e-mail accounts need not be retained in the public file.

Material relating to an FCC investigation or complaint against the station must be retained. This material must be retained until the station is notified in writing that the material may be discarded (usually when the complaint is resolved).

Television stations must keep a “Standardized Public Interest Reporting Form” in the public file. Oddly enough, there is no form for this reporting. A proposed form has been posted at http://www.savethenews.org/sample-form which stations are encouraged to use. Stations must also keep a list of all commercial limits for children’s programming, and a list of the children’s programming reflecting the educational content and quality of the programming. This must be filed on the 10th day of each quarter. If the station broadcasts in DTV (digital), reports must be kept for each digital signal as well.

Radio stations must keep, every three months, a list of programs that have provided the station’s most significant treatment of community issues. The list must include a brief narrative describing what issues were given significant treatment and the programming that provided this treatment. The description must include the time the program was run, the date it was run, and the duration of the program.

Public Notice Announcements announce to the public that the station’s license is up for renewal. A transcript of the announcement, and the times it was run must be placed in the public file within seven days of the last broadcast of the announcement. Any certifying documents relating to the announcement should be placed and retained in the public file for the duration of the station’s application.

Time Brokerage Agreements must be kept in the public file. If the station leases out time to another group or entity, records of this must be kept. Any confidential information contained in the Time Brokerage Agreement may be redacted.

Any consent forms the station has given to another station to retransmit the programming originated by the station.

A copy of any Joint Sales Agreements that involve the joint sale of advertising time sold on the station. Confidential or proprietary information may be redacted from these documents if necessary.

Any documents that demonstrate that a television station is continuing to remain eligible for the status it currently holds.

Who Has Access to the Public File?

Any member of the general public may come in and inspect the public file of a broadcast station during the business hours posted. Members of the public may make copies of any records contained in the public file, but they do not have a right to remove the public file from the building. If the person wishes to make copies of the public file, the broadcast station may charge a reasonable fee for the copying.

Good Faith Access to the Public File

Because of a seemingly high turn-over rate of employees in the broadcasting business, disgruntled former employees may try to seek revenge on a broadcast station owner or manager for a perceived injustice, by claiming a problem with the public file. Often times, the former employee attempts to do this anonymously. When this happens, the FCC will investigate the claim. This results in a headache, hassle, or even a fine levied by the FCC against the station operator. As a means to deter false claims, station operators sometimes require people coming in to view the public file to present their drivers license to be photocopied. There is no rule prohibiting the practice of requiring the member of the public to produce identification before viewing the file, so presumably the practice is acceptable. A station’s policy of requiring identification may not, however, be used for the purpose of retaliating against a reporter; just a way to cut down on frivolous reporting. Regardless, a fine made in bad faith, even if an inspection finds nothing wrong, is still a big headache to go through. It is possible that a broadcast station owner may have some tort law claims against an individual who abuses the process by reporting false claims to the FCC in bad faith.

Fighting the Fine

A fine for an inadequate public file, even if the report was made in bad faith by a disgruntled former employee, is still a fine. Remember, since the public files are public, anyone can come in, any time during business hours, for any reason, to view the file.

Let’s say that a problem is found with a public file. The FCC may take a number of approaches. If the violation is very minor, the FCC field agent may simply instruct the broadcast station to bring the file into compliance. The agent may even assist with this process. For problems with the file that are a little more severe, the agent may issue a written warning to the broadcast station. Severe violations usually result in a fine, and in the worst cases, jeopardize the license status. When a fine is levied against the broadcast station or the license status is threatened, the station owner has the right of Due Process, and may chose to fight the fine.

Due Process – Your Right to Fight

The Fifth Amendment to the United States Constitution provides in part that: “no person shall…be deprived of life, liberty, or property without Due Process under the law.”

In the case of a fine levied against a broadcast station, or any individual person, the accused is allowed to fight the fine if they so desire. If the accused simply pays the fine, they have waived Due Process.

For Due Process rights to attach to the deprivation, a person or entity must have a right to the property they are being deprived of. The court in Bookpark Entertainment, Inc. v. Taft 951 F.2d 710 (6th Cir. 1991) held that a license that can, under the law, be sold, inherited, and renewed gives the license holder a vested property interest in it. Thus, when a person or company holds a broadcast license, a legitimate property interest is created because a radio license can be bought, sold, and inherited. An easier way to think of this is to ask one simple question; “Does having this license allow me to make money?” If the answer is “yes,” generally a property interest attaches and due process must be given before the license or money tied to the license is deprived of its holder.

If a broadcast station is challenged, its status is threatened, or a fine is levied against the station, the FCC must provide for an administrative hearing, and:

Give the station owner or management notice of the violation and notice that their license or money is in jeopardy. If no notice is given, the government or agency (FCC) has failed to give adequate Due Process.

  • Allow the broadcast station to present evidence to prove their case.
  • Allow the broadcast station to rebut adverse evidence and cross-examine adverse witnesses.
  • Allow the broadcast station to be represented by counsel.
  • Have a decision that is based only upon evidence introduced into the record of the hearing.
  • Have a complete record, with a transcript of the testimony and arguments, as well as the documentary evidence and any other paper filed in the proceeding.

These are the Constitutionally given rights of the broadcast station when a fine or license revocation is levied by the FCC.

To avoid getting a fine and jeopardizing the license status (in extreme cases), make sure the public file is up to date and contains all of the correct information. You never know when an FCC field officer might pay you a surprise visit.

This post is part of a series of posts on Radio Station & Broadcast Law: 47 CFR 73 – 74 & More