The FCC’s Media Bureau yesterday issued an order denying reconsideration of the full Commission decision from last year, synchronizing the Biennial Ownership Report filing requirement for noncommercial broadcasters with that of commercial broadcasters, and requiring that all individuals who have attributable interests in these stations obtain an FCC Registration Number (an “FRN”)(see our summary of the FCC order from last year here). Yesterday’s decision triggered a rapid objection from the Commission’s Republican Commissioners, promising to review this decision after the Inauguration when Republicans will likely control the FCC. What is the controversy?
Obtaining an FRN requires supplying the FCC with an individual’s Social Security Number (“SSN”). Last year’s order also provided that stations could obtain a “Restricted Use FRN” for attributable interest holders who did not want to provide their SSN to the FCC, but such individuals would still have to provide at least the last 4 digits of their SSN, along with other specifically identifiable information including their residence address and date of birth. While none of this information is public (it is merely stored in FCC databases that issue the FRN), many noncommercial licensees objected to the requirements, believing that members of their governing boards, who are considered attributable owners for FCC purposes, may be very reluctant to provide that information to stations or the FCC. They pointed particularly to situations like university or other stations operated by educational institutions, where board members volunteer not because they are interested in broadcasting, but instead because they hope to influence the educational objectives of the university. The fear is that having to provide this information could discourage people from serving on these governing boards of educational and similar institutions. In some cases, noncommercial station board members have no real choice about their service – the position is required by virtue of public posts such as university president or school superintendent. See our summary here of those objections.
The FCC has contended that this information is necessary to track the control of broadcast stations specifically to assess the ownership of broadcast stations by minorities and women – thus allowing the FCC to assess the diversity of ownership of broadcast stations to determine if affirmative actions to increase this diversity are required. In yesterday’s order denying reconsideration, the FCC again reiterated that goal for the use of this information. The Media Bureau then rejected the contentions of the noncommercial appellants that the requirement to supply this information could chill the participation of individuals on the boards of noncommercial licensees as being an issue already fully considered and rejected in the Commission decision from last year. A similar finding was made as to the fear that the private information would not be secure at the FCC. The Media Bureau, in a 17-page decision, found that all of the issues that were raised in the reconsideration petitions had been fully considered by the full Commission in its decision last year, so that the Commissioners themselves did not even need to be bothered with the reconsideration petitions. The FCC rules allow the Bureau to reject petitions for reconsideration of full Commission decisions where those petitions do not raise new arguments but simply rehash arguments already fully considered by the Commission.
The FCC’s Republicans, who had questioned the requirements for noncommercial licensees last year, issued a quick retort to yesterday’s decision. First, they objected to the way the matter was handled, allegedly without providing them any input or even notice that it was to be released. Second, they suggested that the requirement was “pointless,” seemingly alluding to their previous statements that noncommercial broadcasters are not subject to FCC ownership limits, and that the interests of their board members are seldom relevant to tracking ownership trends across the broadcasting industry generally. The Republican statement went so far as to explicitly urge the petitioners to file an application for review of this Media Bureau decision, putting the issue squarely before the Commission for its own review – after the Inauguration when the Republicans will likely be in control. (Such filings would be due on February 3, 2017, well after the new leadership takes over the agency.)
There seem to be two bottom lines from yesterday’s competing releases on this seemingly very bureaucratic FCC issue. The first is the practical day-to-day bottom line for noncommercial broadcasters – there seems to be a real possibility that the new Commission will abolish the requirement for any form of SSN filing by those who have attributable interests in their stations, though yesterday’s decision remains the law until it is changed by a new Commission. Any change remains subject to the views of new Commissioners who have not yet even been named, and any review will need to address all the legal justifications for the rule contained in yesterday’s 17 page decision on this narrow issue. But more broadly, it seems to indicate that we will have a very different FCC after the Inauguration – one much more skeptical of FCC reporting and information gathering efforts that place burdens on broadcasters. Elections have consequences and we may be seeing those play out at the FCC already.