The new FCC Form 323 Ownership Report is expected to be available in the FCC’s CDBS electronic filing database by Wednesday, December 9, according to a Public Notice released by the FCC yesterday – so that commercial broadcasters should have a month to prepare the form in time for the January 11 filing deadline.  As we’ve written before, the form and filing deadline have been much delayed as the Commission struggled to work out kinks in its electronic filing process.  In the Public Notice issued yesterday, the Commission also announced that stations can file their ownership reports on the new form even if each attributable owner of the company has not yet received an FCC Registration Number (an "FRN"), which requires the provision of a Social Security Number (for individuals) or a Taxpayer ID Number (for business entities).  Seemingly, the FCC has recognized that there has been much consternation among shareholders, officers and directors of broadcast companies about providing their Social Security Numbers to companies in which they have interests to in turn be provided to the FCC so that an FRN can be obtained.  So that licensees can have more time to deal with these issues, the provision for a temporary FRN has been adopted.  The FCC Public Notice also indicates that the FCC will host a workshop on December 9 at 2 PM Eastern time to help the public with issues as to the filing of this report.

The Social Security Number issue has perhaps created the most concern about this new form.  While the allowance for the temporary FRN will take some immediate pressure off broadcasters, these temporary numbers should not be viewed as a permanent reprieve from obtaining FRNs from all attributable owners.  The Commission in the revised Questions and Answers on the Form 323 makes clear, the temporary FRN for those holders of attributable interests in broadcast stations is a temporary measure.  Licensees are cautioned that they should use their best efforts to obtain these numbers (or to have the attributable owners, on their own, register for the FRN).  Even if that cannot be accomplished by the January 11 deadline, the licensee has an obligation to keep trying and to amend its filing when it finally obtains the required information as to the permanent FRN of each person or entity holding an attributable interest in the company .  The FCC seems to leave the door open to enforcement actions if a licensee does not obtain that information in a reasonable (though not defined) period of time.

While the Social Security Number ("SSN") issue has created a great deal of consternation to many shareholders, officers and directors, one broadcaster recently expressed to me his dismay at the concern.  After all, he pointed out, the SSN is a number assigned by the Federal government, and used for all sorts of government forms and applications (like when you file your tax return).  Here, the FCC – another Federal government agency – is asking for this information just like so many of its sister agencies.  As the SSN will not be made public by the FCC – it will only be used by the FCC internally to assign the FRN – the provision of this information should not be significantly different than filing this number with other government agencies, assuming that the FCC adopts security standards to keep this information confidential (a question about whether such standards have been adopted was raised by one law firm that has asked the Commission to delay the filing obligation).  With the reminder that attributable owners can themselves obtain the FRN and provide that to any licensee in which they have an interest (i.e. they do not need to provide their SSN number to the licensee), that should help to allay some fears.

It would also seem that most licensees will have Social Security Numbers for its shareholders and officers as if, for no other reason, that information is needed when paying dividends or salaries to these individuals.  We’ve noticed particular concerns about this issue in the case of nonprofit companies that hold commercial FCC licenses – perhaps as the Board members of these companies do not have a financial interest in the companies and did not anticipate the need to provide this sort of information to the companies in which they are involved.  While the current Form 323 obligation applies only to commercial stations, the Commission is considering extending the obligation to noncommercial licensees (see our post here).  The SSN issue may well be even more acute if and when these noncommercial licensees are brought within the scope of these new rules. 

In any event, it appears that the January 11 filing deadline for the new ownership report for commercial stations will hold – so be ready!