Sometimes it seems the world really is out to get you.
Being in a highly regulated business, broadcasters are quite dedicated to meeting regulatory obligations. More specifically, being subject to fines (or worse) for every shortcoming makes the average broadcaster not just diligent, but justifiably paranoid in ensuring that every regulatory requirement has been met and checked off the list. Events like government shutdowns therefore give broadcasters particular angst as they throw the normal processes and routines for compliance into disarray.
We discussed this in a post last week, which parsed obligations that must be met even while the FCC is closed from those for which a broadcaster has no option but to wait until the FCC reopens. As detailed in that post, the distinction is not always a commonsense one. For example, we noted that stations must still prepare various quarterly reports for placement in the Public Inspection File by January 10th, but that those reports cannot actually be uploaded to the online Public File until the FCC reopens, as the FCC took its Public Inspection File database offline when it closed on January 3rd, making it impossible for stations to upload those reports.
I therefore listened with interest when a broadcaster indicated last night that after four days of being dark, the FCC’s online Public Inspection File database was suddenly working again. That seemed unlikely, and sure enough, when I tried to access the database, I was redirected to a page announcing the FCC’s closure during the federal shutdown. When I noted this, the broadcaster responded that not only was he successfully uploading his Public File documents, but that the “ticker” on the FCC’s website listing recent Public File uploads indicated stations from all over the country were uploading reports at a frantic pace.
I asked for the link he was using, and it took me to what appeared to be the opening page of the FCC’s shuttered online Public File database, including the familiar “Sign in” link and recent uploads ticker on the right side of the screen. I could successfully sign in on behalf of clients, and on my first visit, the ticker indicated that eight different stations had filed more than a dozen documents in just the past six minutes. Each time I went back to the page, the ticker had updated, listing more recent uploads by a totally different batch of stations. Since the ticker only shows the most recent dozen or so uploads, it was impossible to know how many stations had recently uploaded documents to the site, but I counted more than 50 different radio and TV call signs in an hour.
The website looked like the online Public File database in every respect. It included Public Files for, as best as I could tell, every station in the country that has a Public File, and most convincingly of all, listed all of the uploaded Public File documents for each and every station. In other words, it did indeed look like the FCC had restored access to the Public File database or that stations had found a backdoor way into it.
Upon closer inspection, however, it took on the appearance of a movie set—all facades without anything behind them. It listed the various documents in a station’s Public File, including the time of uploading and the precise file size, but clicking on those documents revealed only dead links. Also suspicious was that it was only up-to-date through September 2018. The Third Quarter filings stations would have made by October 10th, 2018 were missing across the board with one exception—those stations that had uploaded them in the past few days after apparently spotting them as being missing from the database. Indeed, the only links to documents that actually took you to a document seemed to be those uploaded in the past few days; older document listings were just dead links.
Given the eerie accuracy of these station Public Files and their odd shortcomings, it seemed clear that they represented a snapshot of stations’ Public Files as they existed in the latter part of September 2018—doppelgangers of stations’ real Public Files, but definitely not the genuine article. When I asked where the broadcaster had obtained the link, I was told “Google”, and sure enough, when you search for “public inspection file” on Google, it is the first search result listed. Those interested can find the site here. Just don’t waste your time uploading any documents to it.
The reason reveals itself when you take a closer look at the link address: https://publicfiles-demo.fcc.gov. The good news is that it is an actual FCC website and not a phishing website designed to steal station passwords, etc. The bad news is that it is, as the web address suggests, just a demo site created by the FCC to demonstrate how to use the online Public File database (which all broadcast stations are now required to use). Its demo nature was confirmed when I found a reference to it in a 2016 post we published here on CommLawCenter. The FCC launched it on May 12, 2016 for training purposes when it moved TV stations and the first group of radio stations to its new online Public File database.
It is pretty much identical to the real online Public File database in every way, but there is one big difference—the demo site is still functioning, while trying to go to the real database takes you instead to an FCC shutdown notice.
Curiously, there is no hint anywhere on the demo webpage that it is just a demo and not the real online Public File database. It being a demo does, however, explain why the FCC didn’t bother shutting it down when it shut down many of its other databases. Unfortunately, when the real database became unavailable, many broadcasters came upon this site through Google or other search engines, and either failed to notice it wasn’t the real Public File database, or thought they had found a way around the FCC’s closed front door to the database.
While it is certainly unfortunate that a lot of stations appear to have wasted a lot of time uploading their Public File documents to a faux database, the far more insidious impact is that these stations have now been misled into believing they have successfully completed their uploads. As a result, when the FCC eventually reopens and the real online Public File database is made available, these stations won’t know to upload their documents to the correct database, leaving them vulnerable to license renewal challenges and Public File fines (the FCC’s base fine for a Public Inspection File violation is $10,000). If you hear from any broadcasters claiming that they were able to successfully upload their quarterly Public File reports while the FCC was closed, please disabuse them of that notion. Let them know that they could not have, and that they need to upload those documents to the correct database no later than the day after the day the FCC reopens.
But that isn’t the end of this already stranger-than-fiction story. At the beginning of December 2018, the FCC sent emails to over 1,000 radio stations indicating that the FCC had determined from a review of its online Public File database that those stations had failed to populate their online Public Files. Those emails asked the stations to acknowledge receipt and to respond by providing the FCC with a date by which each station would “complete the upload of all required information.”
At the time the emails went out, I heard from a number of stations that were totally baffled by the FCC’s assertion that they had not uploaded everything, as they were sure they had. In addition, it seemed incredibly unlikely that such a large number of radio stations could have failed to migrate their Public Files to the FCC’s online database. It represented a real unsolved mystery, and many of us were intrigued as to what could possibly explain it when the requirement to move radio Public Files online had been so heavily publicized (for example, just here on CommLawCenter, you’ll find it discussed here, here, here, here, here, and here).
Now, however, I’m thinking we may have solved this mystery. It is indeed possible for the FCC’s assertion that a large number of radio stations have empty online Public Files, and the assertion from many of those stations that they have already uploaded their Public Files, to both be true. Ironically, in creating the demo site, the FCC was attempting to help broadcasters, but in leaving it up, the FCC has unwittingly set a trap for stations that continues to swallow innocent victims hourly. I’m betting that a lot of those missing Public Files can be found at the FCC’s online Public File demo site https://publicfiles-demo.fcc.gov—the Bermuda Triangle of online Public File uploads.
[Postscript: In response to the publication of this post, the FCC has taken the demo database offline, preventing more stations from falling into this trap. While that is obviously a good result overall, it unfortunately means that: (1) communications counsel now cannot determine whether stations they represent mistakenly uploaded to the demo site instead of the real one in order to notify those clients, and (2) stations that mistakenly uploaded their entire Public File to the demo site long before the FCC shutdown have lost the ability to access it in order to demonstrate to the FCC that they made a good faith effort to upload their Public File (albeit to the wrong database). As a result, stations will need to talk to their employees handling Public File matters and ascertain directly from them what they have uploaded and to where to ensure that, as soon as the FCC reopens, the appropriate Public File documents are uploaded to the correct FCC database.]