GalesburgPlanet.com

The Federal Commu­ni­ca­tions Commission is scheduled to vote April 27 on whether to require TV stations to post online public infor­mation about political ad buys. Some form of the rule seems likely to pass, but the industry and others are lobbying the FCC to alter the nature of the final rule.

Photo note: The National Asso­ci­ation of Broad­casters submitted the photo above showing of the size of their political and public files to show the burden of an online system (NAB)

(With the help of readers around the country, ProP­ublica is collecting stations’ public paper files containing data on political ads and posting them online because the infor­mation is generally unavailable else­where. See “Free the Files.”)

Right now we only know the broad thrust the proposed FCC rule: That broad­casters would have to elec­tron­i­cally send the commission updates to its political file — in other words, infor­mation about what political ads are being purchased, by whom, and for how much money — instead of merely main­taining paper files at the stations, the current practice. The infor­mation would be made public on an FCC website.

The rule would apply initially to affil­iates of the four major networks — ABC, CBS, NBC and FOX — in the top 50 markets. All other stations would have another two years before they’d have to begin filing electronically.

But the FCC won’t release the exact text of the rule until after the panel votes to finalize it later this month. Mean­while, the wording is subject to change based on input from inter­ested parties.

That’s why the National Asso­ci­ation of Broad­casters has been paying visits to key FCC offi­cials this month. A group of influ­ential Repub­lican senators has also told the FCC they oppose the proposed rule.

On April 3 and 10, National Asso­ci­ation of Broad­casters Pres­ident Gordon Smith met offi­cials, including all three FCC commis­sioners, to make his case against required online disclosure of the public political ad information.

We know about Smith’s closed-door meetings at the FCC because of commission rules requiring prompt public disclosure filings that detail what is said when lobbyists come calling. The filings, which summarize the lobbyists’ pitches, are designed to assure that “FCC deci­sions are not influ­enced by imper­mis­sible off-the-record commu­ni­ca­tions between decision-makers and others.”

Smith is not just another Wash­ington lobbyist. He’s a former two-term Repub­lican senator from Oregon who sat on the Senate Committee on Commerce, Science and Trans­portation, which oversees broadcast-related legis­lation. He was hired less than a year after losing his Senate seat in a close race in 2008, reportedly in part because of “the wow factor” a former senator could offer the NAB.

It’s been a lucrative career change for Smith, who was paid $1.4 million by the NAB in 2010, more than eight times a senator’s salary of $174,000. (Smith, a lawyer and busi­nessman, is used to making millions. His Oregon frozen-food busi­nesses paid him millions of dollars in 2008, according to his final Senate financial disclosure.)

Also lobbying the commission was Jane Mago, exec­utive vice pres­ident and general counsel of the NAB. She’s a familiar face at the FCC. Before joining the broad­casters’ group in 2004, Mago spent more than 26 years at the commission, holding top posi­tions, including general counsel.

The broad­casters have often complained about the clerical burden they say the rule would impose, even bringing the FCC pictures of the size of the paper files earlier this month.

According to public filings describing the NAB’s visits to the commission, Smith and his colleagues told the commis­sioners Tuesday that the broadcast industry remains fully opposed to placing the public political ad data online. It also floated a couple of options for watering down the proposed rule.

One was to begin with a “pilot project” before requiring online disclosure. Another would limit infor­mation posted online to aggregate data rather than the details about ad rates and purchases that are reported in the paper files. Under this plan, stations would continue to keep the full itemized data in paper files for public inspection.

The NAB has raised the specter of “the market-distorting effects of creating anonymous acces­si­bility to the commer­cially sensitive infor­mation included in the political file.”

In meetings with FCC members this week, Smith empha­sized “that the potential harm to TV broad­casters of placing specific rate infor­mation, including the lowest unit rate infor­mation that stations must, by law, afford to political candi­dates, in an anony­mously acces­sible database was real and could place broad­casters at a signif­icant compet­itive disad­vantage versus other video providers that would not have a similar requirement.”

The law states that broad­casters must give political candi­dates the lowest rates for the same class and length of ad that they offer other buyers. (This does not apply to outside groups like super PACs.)

“Sure, all this is a public record, and you can come to the station and get it,” David Oxenford, a Wash­ington attorney who repre­sents various broad­casters, told ProP­ublica. “But you’re not publishing it in such a way that everybody in the world can find out what your lowest rate is.”

Oxenford offered a hypo­thetical case in which an ad buyer for Coca-Cola in New York wants to buy ad time at a station in South Dakota. The ad buyer could theo­ret­i­cally send an agent to check the paper political file at the station for the lowest rates but in practice would not, he argued.

“Once [the political ad prices] are online and can be searched anywhere in the country, the broad­caster has essen­tially told everyone in the world what their lowest rate is for a spot on the station,” he said.

Advo­cates of putting the political files online don’t buy it.

“I would be more willing to take that argument at face value if this material hadn’t been public for so long,” said Corie Wright, senior policy counsel for the pro-disclosure group Free Press. Wright said Free Press volun­teers visiting stations have been told of broad­casters going to competitors’ offices to get copies of the public political files and thus the rate information.

The dispute has attracted attention in Congress. Senate Minority Leader Mitch McConnell and several other Senate Repub­licans sent a letter to FCC Chairman Julius Gena­chowski earlier this month complaining of the “impo­sition of burdensome new rules on broad­casters,” Commu­ni­ca­tions Daily reported.

The letter also pointed to the concern that “providing data on the avail­ability and pricing of airtime will provide their competitors with real-time access to propri­etary infor­mation and could poten­tially lead to anti­com­pet­itive practices.”

Advo­cates for online disclosure say resis­tance to the new rule is consistent with the industry’s long­standing anti-regulation posture.

“Over the last 20 to 25 years, broad­casters have been very successful in dereg­u­lating their industry,” said Wright. “They are nervous any time the trajectory goes in the opposite direction. It’s kind of like the camel’s nose under the tent.”