Public Inspection File Rule: The FCC Asks (Again) If It's Really Necessary

Thanks to the Paperwork Reduction Act, the public file rule is out for comment " again

The Paperwork Reduction Act strikes again! As we all know, the PRA requires the FCC to get clearance from the Office of Management and Budget for "information collections" the FCC wants to impose on its regulatees. OMB clearances have a shelf-life of three years, meaning that the Commission has to truck on back to OMB every three years to re-up previously issued clearances.

Those of you with reasonably long memories may see where this is heading.

Three years ago was when OMB last approved the Commission's local public inspection file (and related political file) rules for broadcast and cable operators. (Those rules may be found at 73.3526, 73.3527, 73.1943 and 76.1701.) And sure enough, the FCC has now solicited comments on those rules yet again as part of the process necessary to secure another three-year OK from OMB.

We reported on the 2011 proceedings back when they first got started. You may want to take a look at that report, because not much has changed this time around. The Commission is again inviting comment on several boilerplate questions, including:

(a) whether the public file rules are "necessary for the proper performance of the functions of the Commission, including whether the [collected] information shall have practical utility"; and

(b) whether the Commission's burden estimate is accurate.

As to that "burden estimate", the numbers continue to amuse and amaze. Recall that in 2011 the Commission estimated that 52,285 respondents (providing a total of 52, 285 responses) would require anywhere from 2.5-109 hours to comply with the public file rules, resulting in a "Total Annual Burden" of "1,831,706" (the 2011 notice didn't put any units on that total burden estimate, but we figure it probably referred to hours) and a "Total Annual Cost" of (are you sitting down?) "none".

This time around, the corresponding estimates are: 24,558 respondents (providing a total of 63,234 responses); one hour to 104 hours per response; "Total Annual Burden" - 2,375,336 hours; "Total Annual Cost" - $882,236.

If these numbers look a bit odd to you, join the club.

The number of respondents this year is down more than 50% from 2011, but the number of responses is up by more than 20%. While the time per response has gone down, the Total Annual Burden has skyrocketed by almost 30%. And how about that estimated "Total Annual Cost"? It has shot from "none" (which is where it had been pegged by the FCC in 2008, too) to $882,236. And let's not forget that in 2008, the Commission included an estimate of the "Total Annual 'In-house' Cost" - $37,469,148. How that might have been squared with the "Total Annual Cost" figure of "none" was never explained. The 2011 and 2015 notices have not provided "Total Annual 'In-house' Cost" figures.

The OMB website reflects that, in 2011, a number of broadcast groups submitted comments. While those did not succeed in getting the kibosh put on the rules, they may have had some impact: we heard off-the-record reports that the folks at OMB had a bunch of questions for the Commission before approving the rules then. As it turns out, that approval contained the proviso that "[d]uring the period before the next three-year renewal, the FCC will continue its work to modernize and streamline the inspection file requirement." And in 2012 (when OMB had to consider some proposed tweaks to the public file rules - a proposal which also attracted considerable broadcaster comments), OMB specified in its approval that, going forward, the Commission would have to "review and take into consideration submitted comments regarding the burden placed on affected entities and where necessary, propose possible revisions to the associated information collection to reduce unnecessary burden while continuing to maximize the practical utility of the information requested from respondents."

So it's at least possible that the comment opportunities provided by the PRA may not be entirely useless after all.

The public file rule might serve some valid purpose - but, since the Commission has never done anything to investigate the validity of that proposition, nobody can say for sure. It's probably safe to assume that the FCC is not enthusiastic about launching such an investigation on its own. (As we have previously observed, the Commission has ignored for nearly a decade a petition for rulemaking filed by our friend, communications attorney David Tillotson, challenging the validity of the public file requirement.)

But the Paperwork Reduction Act requires the Commission to justify rules like this every three years, so we all have another chance to make the case: do the public file rules serve a useful purpose, are the FCC's burden estimates valid and, if so, does the supposedly useful purpose justify the supposedly valid burdens? And let's not forget: the Commission must satisfy the OMB that the FCC's assessment is correct.

In other words, anyone who has any thoughts about the public file should take advantage of this opportunity to articulate them to the FCC. The Commission will be accepting comments through July 6, 2015. After that, the Commission will bundle up any and all comments submitted and send them over to OMB, along with a statement in support of the rules (assuming that the Commission is not persuaded by the comments to drop the rules entirely). OMB will then provide an additional 30-day comment period. If OMB declines to approve the rules, the FCC will be unable to enforce them.