Today, the Public Interest Public Airwaves Coalition urged Federal Communications Commission (FCC) Chair Julius Genachowski to take immediate steps to make effective the online public file rule adopted more than two years ago requiring commercial television stations to make their public inspection files available on their web sites.

The Public Interest Public Airwaves Coalition includes the Benton Foundation, the Campaign Legal Center, the Media Access Project, the New America Foundation, Common Cause, the Office of Communication Inc. of the United Church of Christ, and the United States Conference of Catholic Bishops.

The full letter follows:

Georgetown  Law

INSTITUTE FOR PUBLIC REPRESENTATION

                                                                                                                                                                                                                                                                                                                                                         May 4, 2010

 Re: Implementation of the Online Public File, Standardized and Enhanced

Disclosure Requirements for Television Broadcast Licensee Public Interest Requirements, MB Docket 00-168

 Dear Chairman Genachowski:

Members of the Public Interest Public Airwaves Coalition – Benton Foundation, Campaign Legal Center, Media Access Project, New America Foundation, Common Cause, Office of Communication Inc. of the United Church of Christ, and the United States Conference of Catholic Bishops -- call on the Commission to take immediate steps to make effective the online public file rule adopted more than two years ago. The Enhanced Disclosure Order requires commercial television stations to make their public inspection files available on their web sites and replaces the quarterly issues/programs list with a standardized form. Although the Commission is still considering whether to modify the form, it should take immediate steps to implement the online public file rule.

As revised, Rule 73.3526(b)(2) requires that commercial television stations make available much of the contents of their public inspection files on their web sites.  However, this rule has never taken effect.  It was supposed to take effect 60 days after the Commission published a Federal Register Notice announcing OMB approval.  However, the Commission has apparently never even sought OMB approval.

Prompt implementation of the online public file rule would further the Commission’s goals of modernizing the agency in the digital age, increasing transparency, and promoting public participation.  The Commission initially required broadcast stations to maintain a public inspection file more than forty years ago to ensure that the public had the necessary information to hold their local broadcasters accountable.  Because the Commission does not routinely monitor each station’s programming, the Commission depends on viewers and listeners to provide information about whether stations are meeting their public interest obligations to local communities.  The Commission routinely fines stations that fail to maintain their public inspection file. See, e.g., In the Matter of Gaston College (January 29, 2010); In the Matter of R-S Broadcasting Company, Inc.(January 11, 2010)

In 2000, the Commission proposed that television stations post their public inspection files online to provide 24-hour access and increase public accessibility.  Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest Obligations, 15 FCC Rcd 19816 (2000)(NPRM).   In the same NPRM, the Commission tentatively concluded that television broadcasters should provide information on how they serve the public interest in a standardized format on a quarterly basis.

In 2008, the Commission adopted both proposals. Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest Obligations, 23 FCC Rcd 1274 (2008) (Enhanced Disclosure Order).  The Commission found that the costs of posting the information on line were “outweighed by the benefits to the public of Internet accessibility.”  Id. at ¶10.  By making the material more accessible, it hoped “to encourage the public to play a more active role in dialogue with broadcasters.”  Id. at ¶12.   Placing public files online would enhance “the ability of both those within and those beyond a station’s service area to participate in the licensing process.”  Id. at 13 (emphasis in original).   The Enhanced Disclosure Order also replaced the quarterly issues/programming list with a standardized form, Form 355, on which broadcasters report on various types of public interest programming such as local news, electoral coverage, and public service announcements.

Some parties representing the broadcast industry filed petitions for reconsideration of the Enhanced Disclosure Order.  Most focused on the burdens associated with Form 355 rather than the online posting requirement. While the Commission may need more time to consider modifications to Form 355, it should be able to act quickly on the petitions for reconsideration addressing the online public file rule and submit that rule to OMB for approval, if necessary.

Since taking office, you have taken steps to increase public participation in Commission proceedings, make the agency more data driven, and take advantage of the power of the Internet.  For example, you told Congress that the American people deserve a Commission that encourages and facilitates participation by all stakeholders. Testimony Before Subcomm. on Commc’n, Tech. and the Internet of the House Comm. on Commerce, September 17, 2009.   The FCC Reform Agenda presented in February recognized that the FCC has “enormous opportunities to make the agency more data driven.”  That same month, the FCC issued two Notices proposing rule changes to improve decision-making and promote public participation in FCC proceedings.  In addition, the Commission itself is using the web to solicit public participation in developing the national broadband plan, the Open Internet Inquiry and the Future of the Media Inquiry.

Each of these goals – public participation, data-driven policy-making, and leveraging the power of the Internet – would be served by making public inspection files more accessible by posting them online.  Not only would the public be more likely to engage in dialog with broadcasters and participate in licensing proceedings, but increased access to this information would allow more informed participation by members of the public in other FCC proceedings such as the Future of Media Inquiry and the 2010 Quadrennial Review. The Commission should also move expeditiously to resolve the issues associated with Form 355, since it will serve many of the same goals.  For these reasons, we urge the FCC to promptly issue an order disposing of petitions for reconsideration of the online filing requirement and immediately thereafter, seeking OMB approval.

cc:  Commissioner Michael Copps

Commissioner Robert McDowell

Commissioner Mignon Clyburn

Commissioner Meredith Atwell Baker

William T. Lake

The vast majority of Americans remain justifiably outraged by the Supreme Court's activist decision in Citizens United - a decision ignoring precedent and unleashing vast corporate and union treasury funds on our elections.

That outrage, confirmed by recent polls, should drive both Democrats and Republicans to support the DISCLOSE Act (Democracy is Strengthened by Casting Light on Spending in Elections) introduced today by Senators Charles Schumer (D-NY) and Rep. Chris Van Hollen (D-MD). Original Senate cosponsors include Russ Feingold (D-WI), Ron Wyden (D-OR), Evan Bayh (D-IN). Joining as original cosponsors in the House are Representatives Mike Castle (R-DE), Robert Brady (D-PA) and Walter Jones (R-NC). We especially commend Representatives Castle and Jones for their courage in standing up for what they believe in amidst this hyper-partisan atmosphere in this Congress.

The Schumer-Van Hollen bill will strengthen disclosure provisions, helping voters identify which deep-pocketed entities are spending significant amounts of money to buy access and influence in Washington, often through shadowy groups with patriotic names or through trade associations.

The U.S. economy is still suffering the economic fallout from politically-influential corporations on Wall Street driving the nation's economy into a ditch - while some of those corporations are once again reporting huge profits. The Quinnipiac and Washington Post/ABC polls clearly show that Republicans and Democrats alike are concerned about granting corporations and unions even greater opportunities to buy influence on Capitol Hill.

If Congress fails to take action in the aftermath of the Supreme Court decision inCitizens United v FEC, vital information about significant campaign expenditures will be hidden from public view. A vote against the DISCLOSE Act is a vote to keep citizens in the dark about who is really calling the shots in Washington.

Senate Minority Leader Mitch McConnell (R-KY), who will lead the opposition to this legislation, began to completely mischaracterize the proposal even before he had seen it. Senator McConnell has a long record of opposition to any and all regulation of special-interest money in politics and he remains a zealous denier of the reality that money buys access and influence in Washington. The Minority Leader's caucus would be wise to think twice before blindly following his lead and ignoring public anger with the Citizens United decision.

The DISCLOSE Act will drag the huge political expenditures made by corporations and unions into the light of day and help ensure that citizens know who is spending what to influence the outcomes of decisions in Washington. With so much at stake and so many policy decisions to be made, every citizen deserves to have the sunlight that this measure will bring into the political process in Washington.

Click here to read full text of the DISCLOSE Act.

The Campaign Legal Center, together with Democracy 21, filed comments yesterday with the Federal Election Commission (FEC) in regard to an advisory opinion request (AOR 2010-7) submitted on behalf of "Yes on FAIR." The California political committee is seeking the Commission's opinion as to whether "Members of Congress may solicit funds for Yes on FAIR outside the limits and source restrictions prescribed by the Federal Election Campaign Act ("FECA") [ i.e., soft money]."

As recognized by Yes on FAIR, the question of whether federal candidates and officeholders may solicit soft money for state ballot measure committees has been posed to the Commission in at least three advisory opinion requests since the enactment of the Bipartisan Campaign Reform Act of 2002 ("BCRA")—"each yielding a different outcome." We agree with Yes on FAIR that the "result has been confusion in the law" and that the "time has long since passed" for the Commission to answer this question definitively. However, we disagree in the strongest possible terms with Yes on FAIR regarding what the definitive answer should be under the controlling law.

We urge the Commission to make clear that FECA, as amended by BCRA, along with existing Commission regulations, require the Commission to advise Yes on FAIR that Members of Congress may not "solicit funds for Yes on FAIR outside the limits and source restrictions" prescribed by FECA.

Despite the Yes on FAIR's best efforts to complicate the matter—and the Commission's indecisiveness in past advisory opinion proceedings—the appropriate legal analysis is simple. The Commission needs to answer only two straightforward questions:

* Are Members of Congress within the class of persons restricted by the soft money solicitation prohibition of BCRA— i.e. , are Members of Congress federal candidates, federal officeholders, or agents of federal candidates or officeholders?

* If so, is the proposed activity covered by the soft money solicitation prohibition of BCRA— i.e. , are the funds being solicited or directed in connection with an "election"?

The answer to the first question is yes. Obviously, Members of Congress are federal officeholders and many are likewise federal candidates and thus are clearly subject to the soft money prohibition of BCRA.

The answer to the second question is also yes. The activity proposed by Yes on FAIR—to have Members of Congress soliciting funds for an initiative committee whose activities relate to a ballot proposition that will appear on the same ballot that Members of Congress will appear as candidates for federal office—is not only solicitation in connection with "an election," but in connection with an "election for Federal office" where federal candidates are on the ballot and stand to benefit from the soft money expenditures that the initiative committee makes.

Because both questions above should be answered in the affirmative, BCRA prohibits Members of Congress from soliciting soft money for Yes on FAIR.

The Commission should be clear as to what is at stake in this AOR. Yes on FAIR seeks permission to have Members of Congress solicit soft money funds for the ballot measure committee to spend on activities that—according to empirical studies as well as common sense—will shape the electoral environment in which the federal candidates themselves are running for office: Yes on FAIR will motivate voters, they will seek to register voters, and they will turn out voters to the polls, all of whom will then vote in the federal candidates' elections as well.

We strongly urge the Commission to advise Yes on FAIR that solicitation of funds for it by Members of Congress in connection with the November 2010 California general election must comply with FECA amount limitations, source prohibitions and reporting requirements as required by BCRA.

To read the comments, click here.

On Monday, April 19, 2010, the Legal Center, along with Democracy 21, filed an amici brief with the en banc Fifth Circuit Court of Appeals in Cao v. FEC . The case was filed by the RNC and others in November 2008 to challenge the party coordinated spending limits and the $5,000 political committee contribution limit as applied to coordinated spending.

The action arose from the decision of the district court to "certify" a number of constitutional questions proposed by Representative Cao and the RNC plaintiffs to the Fifth Circuit for en banc consideration. The district court also declined to certify several of plaintiffs' proposed questions, ruling they were "frivolous," and plaintiffs are also appealing this decision.

In the amici brief, the Legal Center urges the Fifth Circuit to reject the RNC's challenge. Amici argue out that the Supreme Court has both endorsed the general practice of regulating coordinated expenditures as contributions, and specifically upheld the party coordinated expenditure limits challenged in the Cao case. Acceptance of the plaintiffs' sweeping arguments, amici point out, would essentially require the overruling of past Supreme Court precedent affirming the constitutionality of restrictions on coordinated spending.

Oral argument before the en banc Court of Appeal is scheduled for May 24, 2010.

To read the brief, click here.

The Campaign Legal Center, joined by the Center for Governmental Studies and Common Cause, filed a brief amici curiae last week in the U.S. Court of Appeals for the Ninth Circuit, supporting the City of San Diego in its defense of limits on contributions to non-candidate / non-party political committees in Thalheimer v. City of San Diego.

The challenged San Diego law provides that a "general purpose recipient committee" may only use individual contributions—not contributions from corporations, labor unions or other non-individual entities—to support or oppose a municipal candidate by making independent expenditures, and those contributions may only be up to $500 per individual contributor. On February 16, 2010, the district court preliminarily enjoined the City's enforcement of the contribution limit.

The Legal Center argues in its brief to the Ninth Circuit that the district court's decision was an abuse of discretion and in error, and that the Ninth Circuit should reverse the decision. Specifically, the Legal Center argues that the district court erroneously applied the strict scrutiny analysis of the Supreme Court's decision in Citizens United, striking down a spending limit, to the San Diego law, which is acontribution limit that should be subject to a lower degree of scrutiny. Also, the district court erred in concluding that San Diego's interest in preventing actual or apparent corruption would justify only limits on "direct contributions to candidates," not limits on contributions to committees making independent expenditures.

We welcome the decision of the three-judge district court panel in RNC v FEC to uphold the McCain-Feingold soft money ban from legal attack by those who seek to allow unlimited and corrupting contributions by corporations and special interests to the national party committees. Though an appeal to the Supreme Court may well follow day's decision, the court rightfully recognized that the Supreme Court's 2003 McConnell decision is still the law of the land when it comes to the ban on soft money contributions to political party committees. The panel rightfully recognized that the Supreme Court's decision in Citizens United did not address the constitutionality of the soft money ban.

Before the ban, massive donations were given by those seeking to influence the legislative process and many Members of Congress on both sides of the aisle were not shy about soliciting such contributions. Our democracy is well rid of the practice.

This case may be appealed and the Roberts Court's decision on whether to hear it will be indicative of how far the Court's narrow majority is willing to go in gutting the nation's campaign finance laws to the benefit of the very deepest pockets. Public opinion and political reality of what huge contributions buy in Washington would argue against the further gutting of the McCain-Feingold law, and the Court and the nation will be better served by upholding the ban if given the opportunity

The decision by the DC Circuit in SpeechNow.org to allow unlimited contributions to political committees to make independent expenditures demonstrates a judicial lack of understanding of the realities of the way corruption threatens our elections. This decision, and the Citizens United decision by the Supreme Court this term allowing corporate independent political expenditures, simply ignore history and the reality that independent expenditures can and do corrupt, buy access to, and curry favor with Members of Congress, and residents of the White House. To hold that the only form of true corruption is the literal quid pro quo of a bribe for a vote is simply untethered from political reality.

While we are disappointed in this decision, we do welcome the DC Circuit's strong endorsement of the requirements that groups seeking to influence elections register as political committees and regularly report and disclose their donors. This is obviously of enormous importance, so that deep pocketed interests will not be able to anonymously spend millions on their candidate attack ads.