No Contest? Enforceability of Broadcast Contest Rule In Question

If you're a broadcaster and you're worried that you may have violated the on-air contest rule - or if the FCC has concluded that you did violate that rule - you may be in luck.

As we all know, the hilariously-named Paperwork Reduction Act (PRA) requires the FCC to get the approval of the Office of Management and Budget before the FCC can unleash "information collection" obligations on its regulatees. The PRA process - which provides not one, but two separate opportunities for public comment, thereby ironically doubling the potential paperwork to be created - often appears to involve little more than rubber-stamping, with no apparent attention paid to any public input that might be submitted.

What does this have to do with the FCC's contest rule? Read on.

As it turns out, there is a nugget of considerable value in the PRA. It prohibits the FCC from imposing "any penalty" on anybody for failing to comply with an "information collection" that does not happen to have an official OMB Control Number reflecting compliance with the PRA. That prohibition - set out in 44 U.S.C. 3512 of the U.S. Code - is an absolute get-out-of-FCC-jail-free card: Congress expressly provided that the prohibition against penalties applies "notwithstanding any other provision of law". And if that didn't make it clear enough, Congress went on to say that "The protection provided by this section may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto."

(If you want to check on FCC "information collections" that have already passed muster, you can find them all listed, with their respective OMB Control Numbers, in Section 0.408 of the Commission's rules. It's an impressive list.)

When the FCC wants to get an OMB Control Number for an "information collection", it must first place a notice in the Federal Register inviting the public to comment on the "information collection". These notices are akin to the legal notices that appear, usually in about 2-point type, at the back of your local newspaper. They're a formality, supposedly intended to put the world on notice, but seriously, who ever reads these things?

We do.

And so it was that we came across a terse PRA notice in the Federal Register announcing that the FCC is seeking an OMB Control Number relative to Section 73.1216, its broadcast contest rule. According to the notice:

The Commission adopted the Contest Rule in 1976 to address concerns about the manner in which broadcast stations were conducting contests over the air. The Contest Rule generally requires stations to broadcast material contest terms fully and accurately the first time the audience is told how to participate in a contest, and periodically thereafter. In addition, stations must conduct contests substantially as announced. These information collection requirements are necessary to ensure that broadcast licensees conduct contests with due regard for the public interest.

Elsewhere in the notice the Commission seems to characterize Section 73.1216 as an "[e]xisting information collection in use without an OMB Control Number."

And what does the PRA call an information collection without an OMB Control Number? Unenforceable.

Precisely why the FCC has decided now, nearly 40 years after the contest rule was first adopted, to declare the rule to be an "information collection" isn't clear. But it seems to have done just that. And it is beyond question - as the PRA notice expressly concedes - that that information collection has been in use by the FCC without an OMB Control Number. So it sure looks like the Commission has effectively announced that, at least until the PRA process runs its course and a Control Number is issued, the FCC is not in a position to enforce the Contest Rule.

How this development might come into play in connection with current, ongoing investigations into possible contest violations isn't clear. Nor is it clear how, if at all, this might affect previously-issued fines for contest violations. But if you happen to have a contest problem on your hands, you might want to make sure that your counsel is aware of the Federal Register notice (as well as 44 U.S.C. 3512).

Of course, given the terseness of the PRA notice, we may be missing something here. If so, ideally the Commission will clarify what's going on. In the meantime, broadcasters who run on-air contests should take a look at the PRA notice for themselves.