Compliance is the keyword.
It has now been three years since all U.S. radio stations were required to establish an online public file or OPIF and move their paper files to the online portal set up by the Federal Communications Commission.
Since that deadline, it has become apparent that many licensees were not maintaining their files correctly. The FCC has drawn attention to this as station licenses come up for renewal, announcing a series of consent decrees in which owners large and small acknowledge that they failed to comply.
The commission has been lenient; these agreements involve no financial penalty and the commission acknowledged the impact of the pandemic. But the decrees require immediate steps be taken to address deficiencies, put best practices in place to ensure compliance and report back to the FCC.
Concern and diligence
Properly maintaining the OPIF, political file and the quarterly issues and programs lists are of upmost importance as stations in 20 states have their license renewal cycle this year, and lack of compliance can cause the commission at minimum to put an application on hold.
Frank Montero
“With it being moved online and accessible by all, the public inspection file has gone from a randomly maintained annoyance to an important aspect of station compliance,” said Frank Montero of the law firm Fletcher, Heald & Hildreth.
“Licensees are learning that they can no longer just check the ‘Yes’ [compliance] box on the license renewal.”
While the recent consent decrees have not involved monetary penalties, failure to comply with these rules can indeed be costly, said Cary Tepper of Tepper Law Firm.
“On occasion, multiple public file deficiencies have resulted not only in fines, but in license renewals being processed slowly, or in a couple of cases, short-term renewals issued,” he said.
“Instead of an eight-year renewal, you get a one-year renewal with the order to clean up your act and prove to the FCC that you’re going to remain compliant. It’s created a lot of concern for some clients, but also made others more diligent.”
Cary Tepper with puppy Ava
To avoid issues or delays in the renewal process, stations should consider hiring an attorney to conduct an external audit of their OPIF.
Tepper and Montero said the most common trouble spots are with the political file or the quarterly issues and programs lists. Montero said this may be because these items “do not involve information that is automatically uploaded by the FCC.”
Montero said, “For your political file, we tell clients that even if they had no contact with political candidates during election season, they may want to place a memo in the political file.” He said this will let the FCC know that the station is aware of the requirements and that a lack of information does not indicate neglect.
In the event that stations find that their quarterly issues and programs list are deficient or there are other areas in the file that need revisions, Tepper recommends including a special exhibit during the license renewal process.
This will indicate that while “preparing the license renewal application, the station had its public file audited and found X, Y and Z needed to be fixed so fixed it before filing the renewal application,” Tepper said.
“Normally, when the [FCC] staff sees that you are self-monitoring and fixing it, they don’t make an issue out of it.”
He said many stations don’t realize that their remote programming can be included in the quarterly issues and programs list as “responsive programming.”
“People don’t think in terms of the complete picture of ‘What have we done that qualifies?’” He noted that many stations broadcast live from local and charitable events but overlook these events when considering what to include in the quarterly reports. He said these may be documented in an attachment.
Best practices
Both attorneys stressed the importance of uploading any OPIF documents on or before the required deadline.
Montero recommended that stations assign an employee or staffer who is specifically responsible to make sure the file is kept current.
Indeed the recent FCC settlements typically include stipulations that the offending company designate a senior manager to serve as a compliance officer, someone who reports directly to the CEO or senior officer; establish a compliance manual; and set up a staff training program.
Tepper said the FCC website provides public file information about what documents need to be included in the public and political files.
“If you have any doubt, just throw every political document in there,” Tepper said. “Even if you’re not sure what should be there, they’re not going to fine you or fault you for having too much in the public file.”
Even though the online filing requirement was issued three years ago, some stations still have insufficiencies or have simply not set up their OPIF.
Tepper said some minority-owned stations may be missing important communication from the FCC because of language issues. Montero said many smaller stations may not be aware of requirements and updates because they don’t have the luxury of a FCC law firm.
Montero said good information is available from state broadcast associations, FCC resources, past articles in Radio World, YouTube training videos and blog articles.
State association websites often provide training materials, webinars and contact information for people who can assist smaller stations and provide education and training on compliance issues.
Participation in the Alternative Broadcast Inspection Program also provides a connection to a local expert who conducts an FCC-style inspection of the public file and station operations. While the certificate of completion from these programs does not free a station from FCC scrutiny, an ABIP inspection is an excellent way to identify any problems before the commission does.
Watch a webcast demo of the FCC’s online public inspection file interface at https://tinyurl.com/rw-opif.
The author is station manager of REV 89 | KTSC(FM) in the Department of Media Communication, Colorado State University Pueblo.
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