Update 11/23/2009 – the Commission has just extended the filing deadline for the Form 323 until January 11, 2010. See our post here for more details.
December 15 is that date on which the new FCC Form 323 Ownership Report is to be filed at the FCC – yet the revised form is not yet available in the FCC’s CDBS electronic filing database. What is a broadcaster to do? The form will require significantly more work to complete than was necessary on prior versions – and it requires more information provided in a different manner than on the old form. The information on the old form cannot simply be imported into the new form – everything needs to be re-entered. And information that used to be provided by exhibit in older versions of the form has to be manually entered into separate searchable fields on the new form. For broadcasters with many principals who have many broadcast interests, the form will take significant time to complete. All commercial licensees, including LPTV licensees who have never before had to file, must submit the report. Each attributable owner of each licensee (see our Advisory for a very basic explanation of attributable interests) will also need to have his or her own FCC registration number ("FRN") in order to complete the form – all to be done by December 15. But will that date potentially change?
While the FCC has issued a series of Questions and Answers about the form (and we have published our own Advisory to prepare for the filing of the form, here), licensees can’t start filling out the form yet as the revised for is not yet available electronically. So the difficulties that will no doubt be discovered as hundreds of broadcasters try to complete the form for the first time have yet to even be fully identified. Even if the form does become available today, there still will be a significant potential for a very messy filing window. Confusion will likely occur as every commercial broadcaster must file the form, some for the first time, and many will no doubt have questions about the process. From the calls that we are getting already, the anxiety and confusion among broadcasters is great. The prospects of a filing "trainwreck" has been the subject of much talk in Washington among lawyers like us who represent broadcasters. With much of next week taken up with the Thanksgiving holiday, there simply will not be time for every question to be answered, and for every broadcaster to be ready to file by the December 15 deadline. This week, one law firm went so far as to formally request that the Commission postpone the filing date. We would not be surprised if this petition is successful, or if the Commission on its own motion decides to extend the deadline. But the filing deadline has not yet been delayed, so broadcasters should still plan on meeting the current deadline (and, even if extended, any delay will not be indefinite, so broadcasters still need to be getting ready). What can a broadcaster do now?
First, licensees can start registering their attributable owners for their own FRNs. These can be obtained now through the FCC CORES System, and will require the social security number for each individual owner, officer, and director. Many broadcasters have told us that their owners are very concerned about turning their social security numbers over to the FCC, even though the FCC has promised that they will be kept confidential. But, right now, that is what is required in order to obtain the needed FRN. This is being done so that each owner (as well as officers and directors) will have a unique identifier so that his or her media interests can be readily searched (an interesting goal, but one which was not expressed by the FCC’s original order adopting the filing requirement). Corporations and other legal entities that have attributable interests in licensees will need alson need to have a unique FRN, and must proivide their Taxpayer Identification Number or Employer ID Number in order to get an FRN. All this can be done now.
Broadcasters should be gathering this information, as well as the information about other broadcast interests, and preparing a graphic chart depicting their ownership structure (another new requirement of the form), so that this information is ready when the form comes online. A process that seems to exemplify "hurry up and wait," but one that is sure to be enforced by the FCC. As we wrote here, Washington "public interest groups" are crying for more information about broadcast ownership and operations so that the Commission can make informed decisions in its multiple ownership proceeding, so this may be but the first exercise in information gathering and submission to which the broadcaster can look forward in coming months. Be prepared.