As a general public inspection file-related matter, we have always recommended that every  broadcast station that is required to maintain a public inspection file organize its paper-based public file in an orderly fashion that parallels the sequence of, and incorporates sub-section titles contained in, the Commission’s public inspection file rules.  Those rules are set forth at Section 73.3526 for commercial radio and television stations and at Section 73.3527 for noncommercial educational radio and television stations (collectively, the “Public File Rule”).  By maintaining separate file folders corresponding to each sub-section of the Public File Rule, a station reduces the risk that it will have omitted from its public file a required document.  In addition, this system has a proven track record of impressing FCC and Alternative Broadcast Inspection Program (“ABIP”) inspectors who have reviewed station public files that are organized in this way. 

Along with adopting its new DTV Transition Education Report requirement, the FCC amended the Public File Rule to require all full-power commercial and noncommercial television stations to place in their public inspection files, separate from other materials, the “DTV Consumer Education Quarterly Activity Report” (FCC Form 388).  We recommend that promptly after the completed form is filed with the FCC, a copy of the report be placed in a separate folder in the station’s public file and that the folder be labeled using the title of the pertinent subsection of the Public File Rule.  For example, we suggest:

• For commercial television stations, the folder be labeled: “Section 73.3526(e)(11)(iv): DTV transition Education Reports (FCC Form 388)” and 

• For noncommercial, educational television stations, the folder be labeled “Section 3.3527(e)(13): DTV Transition Education Reports (FCC Form 388)” 

Good organization of the public inspection file will serve several purposes: (a) it will aid in proper maintenance of the public file, both in terms of completeness by subject area and by duration of retention; (b) it will facilitate access for those seeking to view the file and reduce the risks that members of the public will find fault with the public file and complain to the station and/or the FCC; and (c) it will, as a result of both (a) and (b), not only better ensure compliance with the Public File Rule, but make it much easier to demonstrate to FCC inspectors and ABIP inspectors the thoughtful organization and completeness of the station’s public file. In addition to filing the completed Form 388 with the FCC within 10 days of the end of each calendar quarter and placing the report in the station’s public inspection file, television stations
must also “publicize in an appropriate manner the existence and location of these Reports.” We recommend that stations follow a schedule similar to that which they use to publicize the availability of the station’s Children’s Television Reports.

Pursuant to our initial informal discussions with FCC staff, we were previously advised that only television stations electing Reporting Option One must place Form 388 on their websites. Following a subsequent request for clarification, FCC staff now indicate that all television stations which are required to file Form 388 must, regardless of the option chosen, place the form on their websites, if the station has a website.  

As discussed in our “New Program Reporting and Public Inspection File Online Posting Requirements for Television Stations” Advisory (January 2008), television stations will be required to include FCC Form 388 in its online public inspection file if and when the Commission’s new online public file rule is approved by OMB and goes into effect.  Once that happens, it is logical to believe that the Form 388 posting requirement referred to above will become moot. Attached to this Advisory are the pertinent sub-sections of the newly revised Public File Rule relating to FCC Form 388.  If you have any questions, please contact any of the members of
our Communications Practice Section.