The days of the FCC’s notorious public inspection file would be numbered, if Harry Cole had anything to say about it.
Cole, attorney for the law firm of Fletcher, Heald & Hildreth (and a regular contributor to Radio World), recently penned a column for the firm’s newsletter airing his opinions on the public file. They were not kind — and his analysis may widen the debate over whether public file rules violate the government’s paperwork reduction law.
As a form of information collection, Cole explains, the public file’s existence must be justified routinely before the Office of Management and Budget under the Paperwork Reduction Act. Current approval for the FCC public file system expires on Sept. 30, 2011.
According to Cole, some FCC inquiries are “kicked off with much fanfare” including colorful adjectives and even a webcast or blog. The public file question, by contrast, is treated with stealth, “flown under the radar” and with as little noise as possible — so much so that when his fellow attorney David Tillotson filed a petition seeking elimination of the public file rules, it reportedly took the FCC four months just to issue a file number (RM-11332) and petition notice.
“Don’t remember that notice?” says Cole, “[It’s] not a surprise.” While barely a blip on the radar, Tillotson’s petition reportedly garnered 30 comments — only three of which supported the public file.
Cole also takes issue with the FCC’s reasoning behind the whole public file idea. Backers believe the system provides members of the local audience an efficient means to monitor broadcaster performance. But according to Cole, the experience of many broadcasters reveals that the public as a whole doesn’t care — and rarely are these files even viewed. What the files do generate, however, is a considerable amount of busy-work and fines (in the tens or hundreds of thousands of dollars) generated by simple clerical errors.
Cole goes on to cite what he considers the commission’s unsupported and unexplained estimate of the burden placed on stations by the public inspection file rule. The latest numbers value “Estimated Time per Response” at “2.5–109 hours.” The figures offer no breakdown of time involved or if it corresponds to weekly, monthly or annual increments, which Cole says is in direct opposition to the Paperwork Reduction rules. Additionally, the “total annual burden” figure for 2011 is listed as “1,831,706” — which Cole notes is the exact seven-digit number the FCC published for their 2008 estimate. The “in-house” cost estimations were completely unexplained, Cole noted.
As is the procedure for approval by the OMB, a decision on inspection files is now open for comments from the public. The commission will be accepting comments through June 17, 2011. The FCC wants to know, among other things, whether the public file rules are necessary for the proper performance of FCC functions, and it wants comments on the accuracy of its burden estimate.
“Anyone who has any thoughts about the public file should take advantage of this opportunity to articulate them to the FCC,” Cole wrote. “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.”
— Brian Smith