FCC'S REREG PUSH IS BIG TEST FOR THE REHR NAB

The NAB board is meeting in Washington next week.

Good thing, too.

NAB President David Rehr and the board have got to figure out how to repel  the FCC's two-part effort to drag broadcasters back into dark ages of content regulation.

Part I is the 49-page text of its “enhanced disclosure” rules the FCC adopted last month.

It forces TV stations to total up and list every four months on a standardized form all the different kinds of local programming that the FCC feels stations ought to be airing.

Stations must then make the programming information and the rest of their voluminous public files available to the public on the Web.

The targeted local programming obligations implied by the use of the standardized form could be made explicit in Part II.

It’s a 98-page rulemaking that tentatively concludes that every TV stations must air local programming and asks what kinds of local programming.

The rulemaking says it doesn’t want to bring back the old ascertainment rules, but then proposes to do just that, albeit in a different way.

It wants stations to set up community boards to advise them what on kinds of local programming they should be doing. It also suggests a bunch of other ideas—audience surveys, focus groups, town hall meetings.

One suggestion would force GMs to join the local Chamber of Commerce or other such local organizations.

There’s more, much more, in the rulemaking—none of it good for broadcasters’ bottom lines or for the decades-long struggle to obtain full First Amendment rights.

As Washington lawyer David Oxenford pointed out in his blog, the rulemaking is a “must-read” for all station owners and managers. They, better than I, can calculate the cost of the new and proposed bureaucratic duties.

What’s particularly disturbing is the initiatives are provoked by the feeling at the FCC that something is horribly wrong with broadcasters’ local programming efforts and that they need to be policed.

Together, the two proceedings represent a major challenge for the NAB under the two-year leadership of Rehr. This is a must win.

For now, the enhanced disclosure rules apply only to TV, but they could be extended to radio and the proposed localism rules would impact both services.

When the board meets, the NAB will undoubtedly list its achievements over the past year—in essence, justifying its existence to the dues-payers.

That’s fine, but I wouldn’t spend too much time on that.

What the broadcasters need is a plan of attack on all three fronts—the courts, the Hill and the FCC—and someone to direct the attack in what will likely be a long campaign.

It’s up to Rehr and his crew to show what they can do the job. This is their opportunity.

I’ll be watching to see what kind of lobbying effort the NAB mounts, particularly late next month during its State Leadership Conference.

It’s not going to be easy.

NAB starts off in a hole. It should have derailed both proceedings before they saw the light of day. But, somehow, it lost touch with FCC Chairman Kevin Martin and seemed to be as surprised as everybody else when he began his localism push.

Of the five FCC commissioners, only Republican Robert McDowell seems sympathetic to broadcasters. Only he has expressed concerns about the constitutional implications of the new regs.

Martin will probably be replaced by a Democrat by this time next year. That means a solid majority for localism rules and other regulatory mischief.

The NAB will have to weigh carefully whether it wants to challenge the “enhanced disclosure” rules in court.

The lawyers tell me that they could be vulnerable on the grounds that their cost outweighs any potential benefit and that they amount to unconstitutional programming requirements.

But if they go down that road, Martin will likely take it as a personal affront and the NAB will be forfeiting any chance of softening the localism rulemaking in his office.

The NAB also must resist any argument to accept the new localism rules, possibly in exchange for regulatory favors.

That argument may come from broadcasters who feel they can easily meet the reporting requirement and any quotas and that they will only hurt “bad” broadcasters who don’t bother with local programming.

In the next five years, all TV and radio stations will be facing competition from new media that will make the last five years seem like the 1960s when they were the only game in town.

To survive, they are going to have to move quickly and deftly. They can’t afford any regulatory handicaps.

Game on.