July 8 Filing Deadline for Commercial Broadcast Stations Form 323 Ownership Report - Clarifications Issued
The long-delayed revised Biennial ownership reports (about which we last wrote here) for commercial broadcast stations, on the new Form 323, are due on July 8, and the FCC is in the process of clarifying what it needs. The Commission just released a Public Notice reminding broadcasters that the report is supposed to be detailing station ownership as of November 1, 2009 (when the reports were originally supposed to be filed). Yet, in the 8 months since that date, many stations have changed ownership. Is a new owner supposed to get the old owner to complete the form? What if the old owner is off somewhere on a cruise, or simply wants nothing more to do with the station? The FCC's Public Notice clarifies (to some extent) what to do in that case - indicating that stations in that situation can file a waiver request, detailing why they can't provide the ownership information for the owners who held the station license on November 1, 2009, and asking that the FCC waive its rules and excuse the filing of a report for this particular station. This obligation to file the waiver request is on the current owner. Note that the FCC does not say that it will grant all such waiver requests, and it specifically excludes from these waiver situations "pro forma" assignments or transfers, i.e. ones where the actual control has not changed but the legal entity holding that control has changed such as in a corporate reorganization where a station license is moved from a parent company to a subsidiary, or from a corporation to an LLC which is controlled by the same individual.
Another looming issue may also create issues for the July 8 filings. A group of state broadcast associations and broadcast owners has asked the US Court of Appeals to once again put the filing obligation on hold until the FCC justifies the information that is being collected. Last week, the Court asked the Commission to justify its requirement that each person with an attributable interest in a station (i.e. anyone who would have to be reported on the Form 323) obtain an FRN (a unique identifier) which can only be obtained by furnishing a Social Security Number. While this may indicate that the Court is concerned about forcing every investor and officer and director of a broadcast company to provide this information, even if the Court forbids the collection of that information, it is possible that the FCC would move forward anyway with the Form 323 filing obligation - just removing the FRN from the required filing. So don't count on the July 8 deadline being pushed back - start preparing now to be on file by the deadline.
The idea behind the revised Form 323 was to give the FCC a better idea of the ownership of broadcast stations. In particular, it was to assess the diversity of ownership - perhaps to justify more affirmative action efforts to promote ownership by minorities and women. Without being able to identify who owns broadcast outlets, the FCC felt that it could not justify such actions. Insisting on the uniform date of November 1 was to get a snapshot in time, that could be revisited every two years, to get a uniform set of data. The need for the FRNs was to make sure that owners are tracked throughout all of the interests that they may have - and the Social Security Number insured that there are no errors in tracking those owners (e.g. ones that could arise from more than one person having the same name, or from the same person having different variations of his or her name being used to report interests in different companies).
Be prepared - sooner or later the deadline is coming. And noncommercial owners - pay attention, as your reports may be come uniform next (though, for now, noncommercial licensees continue to file on the anniversary date of the filing of license renewal applications in the state to which their station is licensed).