I. THE LAW
A. Section 396(k)(4) of the Communications Act provides that:
"Funds may not be distributed pursuant to this subsection to the Public Broadcasting Service or National Public Radio (or any successor organization), or to the licensee or permittee of any public broadcast station, unless the governing body of any such organization, any committee of such governing body, or any advisory body of any such organization, holds open meetings preceded by reasonable notice to the public. All persons shall be permitted to attend any meeting of the board, or of any such committee or body, and no person shall be required, as a condition to attendance at any such meeting, to register such person's name or to provide any other information. Nothing contained in this paragraph shall be construed to prevent any such board, committee, or body from holding closed sessions to consider matters relating to individual employees, proprietary information, litigation and other matters requiring the confidential advice of counsel, commercial or financial information obtained from a person on a privileged or confidential basis, or the purchase of property or services whenever the premature exposure of such purchase would compromise the business interests of any such organization. If any such meeting is closed pursuant to the provisions of this paragraph, the organization involved shall thereafter (within a reasonable period of time) make available to the public a written statement containing an explanation of the reasons for closing the meeting."
B. Section 397(5) of the Act provides that:
"The term 'meeting' means the deliberations of at least the number of members of a governing or advisory body, or any committee thereof, required to take action on behalf of such body or committee where such deliberations determine or result in the joint conduct or disposition of the governing or advisory body's business, or the committee's business, as the case may be, but only to the extent that such deliberations relate to public broadcasting."
This provision of the law prohibits CPB from distributing its federally appropriated funds to PBS or NPR or to public broadcasting station permittees or licensees, unless the governing bodies of those organizations, any committee of such governing bodies, or any advisory bodies hold open meetings preceded by reasonable notice to the public. The language of the statute, read in conjunction with its legislative history, requires that all meetings of governing bodies, committees thereof and advisory committees thereto must be open to the public.
1. Open Meetings
Because of the statutory definition of "meeting," not all sessions of governing bodies, their committees, or advisory bodies are subject to the open meetings provisions of the Act. The following elements must be present in order for a board, etc., session to meet the statutory definition of a meeting: (1) a quorum, for purpose of taking action, must be in attendance; (2) deliberations must take place; and (3) the deliberations must determine or result in the joint conduct or disposition to the business of the particular body, but only to the extent that such deliberations relate to public broadcasting.
The statute does not preclude telephonic meetings, meetings conducted via the Internet, or meetings conducted by video conferencing. If an organization's by-laws allow for meetings by telephone, Internet, or video conferencing, the body may meet in such a manner. However, these alternative meeting formats must still meet the other statutory requirements such as providing reasonable notice and allowing the public to attend, which in the case of an alternative meeting format would mean the ability to listen, observe, or participate.
The affected organization will have to determine on a case-by-case basis whether the elements that make a gathering into a "meeting" subject to the open meeting provisions are present. For example, certain gatherings of governing and advisory bodies are not "meetings" because they do not involve deliberations to determine joint conduct. Examples of gatherings that are not "meetings" include: background or status briefings; sessions to stuff envelopes or complete other menial tasks; events that are purely social in nature; or assemblies to assign responsibilities for particular projects to individual board members for fact finding and subsequent report to the body as a whole.
Similarly, some deliberations do not "relate to public broadcasting" and would not fall within the requirements of the open meetings section of the law. For example, a university or school board licensee could be expected to conduct board meetings that would cover subjects not even remotely related to public broadcasting such as deliberations on university housing, faculty appointments, or changes to tuition. On the other hand, a board at a community licensee, whose sole responsibility is related to public broadcasting, would rarely deliberate about matters unrelated to public broadcasting. Again, these determinations must be made on a case-by-case basis.
2. Reasonable Notice to the Public
The law provides that all meetings that are required to be open to the public must also be preceded by "reasonable notice to the public."
"Reasonable notice" normally means notice that is both reasonably expected to inform and appropriate to the purpose of the notice. Notice should be directed toward those individuals who could be reasonably expected to have an interest in attending the meeting. Notice should also be given in a manner that could be expected to reach such individuals.
The Conference Report acknowledges that there may be occasions when an open meeting preceded by reasonable notice would be impracticable. The Report states, "from time to time emergency situations or the convenience of teleconferencing may make it impractical to hold an open meeting preceded by reasonable notice. In such situations, requiring advance notice to the public for committee meetings would be unreasonable. Although the conferees understand that meetings conducted by telephone cannot be open to the public, the conferees expect that the entities involved will attempt to minimize those instances."
3. All Persons Shall Be Permitted by the Stations to Attend
One troublesome part of the open meeting requirement is that physical space, as well as fire department occupancy regulation, may prohibit "all persons" from attending a meeting. Although it would not be reasonable to expect an organization to rent a convention hall to accommodate persons who may wish to attend meetings, it would nevertheless seem appropriate that the various bodies conduct their respective meetings in facilities that would accommodate a reasonable audience. The rule of reasonableness should guide in this area and the organization should take into account factors such as past attendance, the meeting's agenda, and current events. The law would not require a station to undergo unreasonable expenses and efforts to accommodate the public. By the same token, the law would not tolerate failure to provide reasonable accommodation of the public. Therefore, it would be inconsistent with the open meetings requirement to reduce the size of current meeting facilities or otherwise deter the public from attending open meetings.
Likewise, security procedures may impact the public's ability to attend meetings without providing identification. Since the statute prohibits organizations from requiring members of the public, as a condition to attendance, to register their name or to provide any other information, organizations should not hold meetings at locations where access is privately restricted. However, it would be unreasonable to require organizations to hold meetings in unsafe locations or otherwise fail to protect stations employees, volunteers and those attending meetings, or ignore security procedures in emergency circumstances during governmentally mandated heightened security alerts. The rule of reasonableness should apply to security procedures. An organization must make reasonable efforts to allow unrestricted access to open meetings, while maintaining a reasonably safe environment and bearing in mind that Federal, state, and local security regulations may unavoidably impact such access.
If a meeting, which is open to the public, is conducted telephonically or via video conferencing or the Internet, the organization, in addition to complying with the other provisions of this section, must provide the public with access to the proceedings through a location at which the public may observe or listen or by disseminating call-in information that permits the public to observe or listen from another location in a manner consistent with the reasonable notice provisions herein. To the extent practicable, if the organization provides a location for the public to observe or listen to a meeting, this location must be reasonably accessible to members of the public who could be expected to have an interest in attending the meeting. If the organization allows the public to listen to or observe the meeting from another location, the station may not charge for the phone call, notwithstanding normal telephone toll charges.
4. Explanation of Closed Meetings
If a session is closed to the public pursuant to the statutory exceptions (discussed in part C below), a written statement containing an explanation of the reasons for closing the meeting must be made publicly available within a reasonable period of time thereafter. The explanation for a closed meeting, however, does not have to be made available in the same manner as the notice of an open meeting. The explanation for the closing of a meeting preferably should use the words of the statute.
Although PBS, NPR, or stations cannot require that a person register by name or provide any other information as a condition of attending a meeting, they may request identification for other purposes, such as ensuring reasonable security. For example, an organization providing priority seating arrangements for those who formally request such seating space ahead of time may request those individuals to identify themselves. This procedure would be acceptable, because it is a requirement only for priority seating, not attendance. Similarly, the organization could place a sign-up sheet at the entrance to the meeting so that members of the public may voluntarily do something such as submit a comment for consideration, sign-up for volunteer work or engage in similar activities. This is acceptable as long as providing information is voluntary for the public and not a requirement to attend.
The law also provides exceptions to the open meeting requirement. Closed sessions can be conducted to consider matters relating to individual employees, proprietary information, litigation, and other matters requiring the confidential advice of counsel, commercial or financial information obtained from a person on a privileged or confidential basis, or the purchase of property or services whenever the premature exposure of such purchase would compromise the business interests of any such organization.
D. Result of Noncompliance
The law provides that CPB may not distribute any of its funds to PBS, NPR, or the licensee or permittee of any public broadcast station that does not hold open meetings in compliance with this provision.
III. MINIMUM COMPLIANCE REQUIREMENTS
In order to comply with the open meetings requirements of the Act:
A. PBS, NPR (or their successor organizations) and any licensee or permittee of a public broadcasting station must --
1. Open the meetings of its governing body and any committee of its governing body to the public;
2. Open the meetings of its community advisory board or any advisory body of the governing board to the public;
3. Give reasonable notice to the public of the fact, time and place of an open meeting at least one week (7 days) in advance of the scheduled date of an open meeting;
4. Allow all persons to attend any open meeting of the board, committee or advisory board, without requiring, as a condition of attendance, that the person register or provide such person's name or any other information, except as would be reasonably required to maintain a safe meeting environment; and
5. If a meeting is closed pursuant to the exceptions recognized by the law, make available to the public, within a reasonable period of time after the closed meeting, a written statement containing an explanation of the reason(s) for closing the meeting.
B. PBS, NPR, or any public broadcasting station may conduct meetings of the governing body, its committees or advisory groups that are not open to the public as long as they deal with matters considered to be exceptions to the open meeting requirement.
C. Minimum compliance for "reasonable notice" requires that:
1. Notice is placed in the "Legal Notices" or the radio and television schedules section of a local newspaper in general circulation in the station's coverage area; or, notice is available through a recorded announcement that is accessible on the station's phone system; or, notice is available through an announcement that is accessible on the station's Web page; and
2. Notice is communicated by letter, e-mail, fax, phone, or in person to any individuals who have specifically requested to be notified; and
3. The station makes on-air announcements on at least three consecutive days once during each calendar quarter that explain the station's open meeting policy and provide information about how the public can obtain information regarding specific dates, times, and locations.
D. For a station to satisfy the requirement that a written explanation be offered after a meeting is closed to the public:
1. The explanation of the reasons for a closed meeting should be distributed in the same manner as the notice of an open meeting, made available to the public at the station's offices, posted on the station's Web site, or by offering to mail a copy of the explanation to any person who requests one. If applicable, a reasonable charge for this service, or the requirement of a self-addressed, stamped envelope, may be considered.
2. In the case of regularly scheduled meetings that are usually open to the public, the station should give advance notice of the fact that such a meeting will be closed when the occasion arises. The notice that such a normally open meeting will be closed should be disseminated in the same manner as the notice of an open meeting. Meetings that are not regularly scheduled would not need an advance notice of closing.
IV. SUGGESTIONS FOR COMPLIANCE
Each station is encouraged to fashion its own maximum involvement of the community beyond the minimum requirements. It is CPB's position that only through enthusiastic and vigorous efforts can the intent of the Congress, as reflected in the law, be fully realized. Therefore, CPB recommends that stations make copies of the minutes of all open meetings available to the public on the station Web site, by mail, or at the station's office upon request. A reasonable charge to cover copying or postage may be considered for mailing. If a member of the public wishes to inspect the minutes at the station, it would not be unreasonable to require an appointment with the station be made as long as the process is not burdensome to the public.
V. CPB PROCEDURES FOR COMPLIANCE AND CERTIFICATION
1. Each recipient of a CPB station grant, after reviewing the above information, shall develop documentation indicating the manner of compliance with this requirement. This documentation shall contain information that will indicate, for example, the recognition of the open meeting provision by the relevant boards and committees, the procedure for open meetings, the method used to give reasonable notice to the public, examples of notices of open meetings, examples of statements of explanation for closed meetings, and other information indicating community response, if any, to the open meetings.
2. The documentation shall be kept at a reasonable location by each station and made available to CPB, upon request, to determine the fact and extent of compliance. The documentation shall also be made available to CPB auditors who may be making periodic audits of a station.
1. CPB currently requires each recipient of a CPB station grant to certify its continued compliance with the open meetings requirement. The annual certification is part of the Certification of Eligibility form(s) which are included in the Integrated Station Information System ("ISIS") and must be filled out by each CPB station grantee.
2. All such Certification of Eligibility forms must be completed in their entirety and executed by two different individuals: (1) an authorized official of the licensee responsible for executing grants and/or contracts for the licensee who has knowledge and authority to certify that the licensee and its station meet or exceed each of the eligibility criteria listed in the Certification of Eligibility (e.g., chairman, treasurer or secretary of the board of directors, university vice president for finance, president of the school board); and (2) the chief executive officer in charge of the operation of the station (e.g., president, general manager, or station manager).
If you have questions about these guidelines, please send an e-mail to West Smithers, or call (202) 879-9805.