Articles

FCC APPROVES EXPANSION OF ONLINE PUBLIC FILE REQUIREMENTS TO CABLE OPERATORS

Articles / February 4, 2016

As expected, at its January 28, 2016 open meeting, the FCC adopted a Report and Order (“Order”) extending its on-line public file requirements to cable operators, DBS operators, broadcast radio licensees, and satellite radio licensees.  The rules are subject to OMB review and will only become effective 30 days after the FCC publishes a notice in the Federal Register announcing OMB approval of the new rules.  In addition, smaller systems may be subject to exemptions or phasing-in of the new rules.  [Note: the new rules became effective on June 24, 2016].  A summary of the new rules applicable to cable television operators follows. 

New Cable Operator On-line Public File Requirements.

1. General Requirements.

a. Initial Upload Requirements.  Operators will be required to upload to the FCC’s on-line public file database all material currently required for public inspection except documents already filed with the FCC or already maintained in the FCC’s database.  The FCC will import documents operators filed electronically in the FCC’s CDBS and COALS databases that are required to be maintained in the on-line public file database.

i. No entity is permitted to commence uploading material to the on-line database until the effective date of the new rules (i.e., 30 days after the FCC publishes a notice in the Federal Register announcing OMB approval of the new rules).

ii. Beginning on the effective date, cable systems with 1,000 or more subscribers must upload all new public file materials to the FCC’s database.For new political file content only, the upload obligation is delayed for cable systems with between 1,000 and 5,000 subscribers (see Section 2.b.i below).

iii. Within 6 months after the effective date of the new rules, cable systems with 1,000 or more subscribers must complete uploading their existing public file materials, other than existing political files, to the on-line database.

iv. Cable systems with less than 1,000 subscribers are exempt from all on-line public file requirements.Such systems nevertheless must continue to maintain records regarding the channels delivered to subscribers, the designation and location of the cable system’s principal headend, the broadcast television stations carried in fulfillment of mandatory carriage requirements, the nature and extent of any attributable interests the cable operator has in video programming services, and, for open video system operators, the list of qualified video programming providers who have requested carriage.See 47 C.F.R. §§ 76.1705, 76.1708, 76.1709, 76.1710, 76.1712.

b. Electronic Links.  With the exception of channel line-up information, a cable operator is not permitted to provide electronic links to alternative locations where it maintains required public file material in lieu of uploading the documents to the FCC’s database.

i. Operators that maintain their own electronic public or political files, may include a link in the FCC’s on-line database to that private file database in addition to uploading the required materials to the FCC’s on-line public files, but may not rely on information in another online location to satisfy on-line public file requirements.

ii. Operators either may upload their systems’ channel line-ups to on-line database or may provide a link in the FCC’s on-line database to their channel line-ups maintained on their own websites so long as the link is made available to all members of the public.

c. Announcements.  Cable systems that have websites must place a link on the home page of their websites to the FCC’s on-line public file.  The link must connect to the first page of the system’s on-line public file.  The system’s home page must also include contact information for a representative who can assist any person with disabilities in connection with the content of the public file.

d. Local Public Inspection File.  Systems that fully transition to the FCC’s on-line public file database and that also provide access to back-up political file material on their websites when the FCC’s on-line database is unavailable (see Section 2.b.ii below) will not be required to maintain a local public file.

2. Specific New Public File Information Requirements.

a. Proof-of-Performance and Signal Leakage Information No Longer Required in Public Inspection File.  The FCC resolved a long-time anomaly in the rules by clarifying that proof-of-performance and signal leakage information need not be retained in the public inspection file or uploaded to the on-line file.  This material, however, must continue to be maintained and made available to the FCC or the LFA upon request.

b. Political Files.  Existing political files need not be uploaded to the on-line file.  Only new political file content added after the effective date of the new rules must be uploaded.  (The FCC, however, considers records relating to any political advertisement transmitted on or after June 24, 2016 to be “new” even if the advertising time was purchased before the effective date, and even if the advertising was transmitted initially before the effective date).  Existing political file material must be maintained in the local political file at the cable system for the remainder of the two-year retention period, unless the operator voluntarily elects to upload those materials also to the FCC’s on-line public file.

i. Smaller systems (i.e., those with between 1,000 and 5,000 subscribers) have until March 1, 2018 to begin uploading new political file material to the on-line database.For systems with more than 5,000 subscribers, that new political file material must be uploaded to the on-line database immediately “absent unusual circumstances.”

ii. Systems must maintain back-up copies of their political files that will be available to the public if the FCC’s political file is unavailable.This requirement can be satisfied by periodically downloading a mirror copy of the file located on the FCC’s database and maintaining it in paper or electronic form at the system’s local public file location, or by making it available on the system’s own website.Systems using this option, however, must ensure that their back-up file also includes any political file records that have not yet been uploaded to the FCC online public inspection database or that were uploaded after their last download of the mirror copy.

c. EEO Materials.  Operators must continue to make their EEO materials available on their websites, but may fulfill this obligation by providing a link from their website to the EEO materials in their on-line public file.  This link, however, must be a direct link to the EEO materials rather than a link to the first page of the system’s on-line public file.

d. Certain “Upon Request” Materials Now Required in On-line Public File.  Cable systems with between 1,000 and 5,000 subscribers currently are required to provide certain materials to the public only “upon request”; after the effective date of the new rules, those materials must be included in the on-line public file.  See 47 C.F.R. §§ 76.1701 (sponsorship identification), 76.1702 (EEO records available for public inspection), and 76.1703 (commercial records for children’s programming).  As noted above, proof-of-performance test data (§ 76.1704) and signal leakage logs and repair records (§ 76.1706) will no longer be required in the public inspection file, but must be made available upon request to the FCC and the LFA during reasonable business hours.

e. Geographic Information.  Operators must provide a list of 5-digit zip codes served by each cable system in whole or in part when first establishing their on-line public file and must update the information only to reflect changes.  The cable “system” communities will be determined based on the FCC’s PSID number registration.

f. Cable Employment Units.  Operators must identify the FCC employment unit number or numbers associated with each cable system (PSID) when first establishing their on-line public file and must update the information only to reflect changes.

g. Channel Line-Ups.  Cable operators must either upload their current channel lineup to the online file, and keep this information current, or provide a link in their online file to the channel lineup maintained by the operator on its website.

h. Headend Location Information.  Cable operators have the option to include principal headend location information in the online public file or instead continue to retain this information in their local public file.  Operators who do not include the location of the principal headend in the online file must include a notation in the online file that this information is available in the local public file, and must make the information available for public inspection at any time during regular business hours.  [Note: in a notice released on May 25, 2016, the FCC proposed elimination of the requirement to provide headend location information in the public file].

i. State and Local Public File Requirements.  Cable systems will be able to create separate folders within a system’s FCC on-line database for content required by local franchising agreements, but the folder must be clearly labeled to distinguish it from FCC materials.  Local public file requirements are not preempted or otherwise altered in any way.

3. Other Records to be Maintained in the On-Line Public File

a. As mentioned above, cable systems will be required to upload to the FCC’s on-line public file all material currently required for public inspection except documents already filed with the FCC or maintained in the FCC’s own database.In addition to the specific new material and requirements discussed above, this material also includes, e.g.:

i. Commercial records on children’s programs.§ 76.1703.

ii. Leased access.§ 76.1707 (if applicable, the operator’s written policy regarding indecent leased access programming).

iii. Availability of signals.§ 76.1709.(a list of all broadcast television stations carried on the system under must-carry requirements).

iv. Operator interests in video programming. § 76.1710.

v. Sponsorship identification.§ 76.1715.

vi. BST encryption prohibition wavier requests.

Conclusion

As with the current local public file rules, cable operators will remain solely responsible for the management and maintenance of their online public file databases.  This includes, e.g., timely uploading of documents, as well as deletion of files after expiration of the required retention period. 

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