Public Interest Lawyers Lambaste FCC Order Non-Publication

A public interest law group has accused the FCC of violating the Freedom of Information Act by not publishing an order involving a request for waiver of the FCC's newspaper/broadcast crossownership rule.

In a letter to FCC chairman Tom Wheeler, Angela Campbell and Andrew Schwartzman of the Georgetown Law Institute of Public Representation, say that the FCC's Media Bureau did not make the Nov. 26, 2014, opinion public until after the institute found out about it from one of the affected licensees and got a copy from FCC staff, and even then it was posted in such a way that it would only come up through a search of one of the four affected licensees.

They called that a troubling action, and one that raises questions about FCC transparency, and called on the chairman to move quickly to fix the problem.

The order dealt with the denial of a request for a waiver to permit the transfer of five radio stations and a newspaper in Virginia.

"Although no party opposed the assignment of the licenses, the Bureau found that the applicants failed to make a showing required for a permanent waiver, and thus granted a 12 month temporary waiver to facilitate divestiture so as to come in compliance with the NBCO rule. This order was not listed in the Commission’s Daily Digest or posted on the Commission’s 'recent releases' page," they said in the letter.

Not only did the failure to publish "offend the basic principle of administrative law that an agency should publish its substantive decisions so that stakeholders have equal access to the agency’s precedents," they said, but because it violated the law that requires that the text of orders be published or at least indexed and made available for public inspection either in person or online.

Otherwise they say, as was the case with the order at issue, there is no way for stakeholders to learn of the decision, including to determine whether decisions are treating similarly situated parties equitably, which the lawyers say was not the case here. They point out that while the Virginia stations did not get a waiver beyond 12 months to come into compliance, the FCC gave Fox an open ended waiver of the NBCO rules in granting its renewal of WWOR (the waiver extends until the FCC completes its 2014 quadrennial review of its ownership rules).

The institute also said the omission highlighted a longstanding problem of the Media Bureau not flagging waiver requests so members of the public have notice of those requests.

Finally, they say the FCC amended the waiver request July 14, 2014, but did not retain a copy of the initial finding. "First, it is unlikely that any interested member of the public could have found out about the amendment in time to file a petition to deny because the amendment was filed only three days before petitions to deny would have been due. Second, the amendment may be a reflection of the Media Bureau’s practice of creating a body of secret law by negotiating changes in applications without the knowledge of the public," they told Wheeler, adding "These unlawful practices are incompatible with your commitment to transparency and efficiency."

In addition to wanting to know what, if any, knowledge the chairman's office had of the order or its dispensation without publication, or alternatively who was the highest ranking person involved, they have some action items for the chairman.

1. "Will you instruct the Media Bureau to comply with the Commission’s 2008 directive that it issue individual public notices of any application requesting waivers of the Commission’s broadcast multiple ownership rules, including information about the specific waivers that have been requested?"

2. "Will you instruct the Media Bureau to publish the text of all letters, orders or other documents or taking action upon requests for waivers of the Commission’s broadcast multiple ownership rules and list such actions in the Commission’s Daily Digest?"

3. "Will you instruct the Media Bureau that all communications with applicants which have requested waivers of the Commission’s broadcast multiple ownership rules in which the staff requests or suggests modifications or amendments to the applications be posted on the Commission’s website and be made available for public inspection?"

4. "Will you instruct the Media Bureau, that when amendments to requests for waiver of the Commission’s broadcast multiple ownership rules are filed, it should insure that prior filings by the applicant will remain available on the Commission’s website for public inspection?"

5. "[W]ill steps be taken to insure that any [CDBS] replacement system will be more accessible to members of the general public rather than just to experienced practitioners?"

An FCC spokesperson had not returned a request for comment on the Feb. 3 letter, a copy of which was obtained by B&C.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.