Just a reminder to broadcast stations in certain states of several upcoming October obligations. First up, October 3rd is the deadline for Radio Stations in Florida, Puerto Rico, and the U.S. Virgin Islands to file their FCC Form 303-S license renewal applications seeking a renewal of their broadcast licenses. (See our earlier license renewal advisory here.) Accordingly
Are you ready to file your next license renewal application? It seems like the last license renewal cycle just ended (in fact, the last cycle is not over, as evidenced by the fact that the FCC in the last week has released several decisions dealing with late-filed renewals from the last cycle, and many TV stations still have license renewals that have not been granted due to pending indecency issues). Nevertheless, a whole new cycle of Form 303 license renewal applications will soon be upon us – beginning in less than a year. The cycle begins with radio stations in Virginia, West Virginia, Maryland and the District of Columbia, who are due to file their license renewal applications on June 1, 2011. Then, every two months thereafter, stations in another group of states files applications, until April 1, 2014 when radio stations in Pennsylvania and Delaware bring the radio renewal cycle to a close. Television station renewal applications will be due on a state-by-state basis beginning one year later – starting with TVs in DC and the same three states in 2012. A schedule for the radio renewal filings is available here. With these deadlines almost upon us, what should stations be doing now to get ready?
In the last renewal cycle, the biggest source of problems dealt with public file issues. Remember, stations need to certify in their renewal applications that their public file is complete and accurate and, if it is not, to specify areas where there are deficiencies. In the last cycle, many stations in particular had issues with Quarterly Programs Issues Lists that were missing from the files, in many cases incurring fines of $10,000 or more where there were many such reports missing from the files. These reports are also very important, as they are the only required official records to demonstrate the programming that a station broadcast to serve the public interest needs of its service area. If that service is ever challenged, you will need the reports to demonstrate how your station’s programming met the needs and interests of your city of license and the surrounding area. Check out our last advisory on the Quarterly Programs Issues Lists, here.
The FCC Form 323 Biennial Ownership Report — temporarily off-lined in December for revisions — has been reworked and is now back. The FCC has announced that the revised Form 323 is now available in its CDBS electronic filing system, and that all commercial broadcast stations must file their biennial ownership reports by July 8, 2010. …
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?
Several months ago, we wrote of the FCC’s requirements for a new biennial Ownership Report for all commercial broadcast stations – to be filed by all stations in every state on November 1 of every other year – beginning with November 1 of this year. The FCC has even suspended the requirements for commercial stations to file reports that were due between the date that the rule was adopted and November 1 (reports being due on the even anniversaries of the filing of license renewal applications for stations in the state to which the station is licensed). Yet, here we are, less than a month from the supposed filing deadline for the new forms, and we’ve not seen any notice from the FCC that the new forms are ready to be used or any reminder for broadcasters to prepare and file those reports. What gives? Well, the Paperwork Reduction Act has struck again.
We’ve written about the Paperwork Reduction Act before, and its obligation that the FCC (or almost any other government agency) has to justify any new paperwork obligation that it is imposing on companies that it regulates – showing that the burden is as minimal as possible and serves a necessary regulatory process. Here, when the new ownership reports on FCC Form 323 were submitted to the Office of Management and Budget for approval under the Paperwork Reduction Act, several parties, including the NAB, objected that information requested by the new form was unnecessarily complex, and in fact might violate other Federal laws (in particular Federal Privacy laws) as they required not only the filing of information about the companies who own radio stations with identification of their owners, but required that each and every attributable owner of a station (and actually including a few nonattributable owners who must be reported under the new reporting scheme), obtain an FCC "FRN" identification number that would be attached to that person and uniquely identify them in connection with each and every broadcast interest that they have. In most cases, that would require that the individual provide a social security number (and corporate entities would have to file Taxpayer ID numbers). While the FCC promised to keep those identification numbers private, security issues were not addressed and questions were raised why the Commission had to put so many individuals through so much of a burden when the FCC reports had not been adopted to track individual ownership interests, but instead to track the minority ownership of broadcast stations. Other issues with the new forms were also raised, as the new forms would have required many filings for stations held in independent corporations, but with a common parent company as parent companies cannot simply cross-reference multiple licensee companies that they own, but instead have to file multiple ownership reports for each licensee company in which they have an interest. In addition, ownership structures and other broadcast interests can no longer be identified by PDF attachments, but they instead needed to be separately entered into their own fields on the new form. The idea was to make the information searchable – but it would also result in vastly more time to prepare these reports.
This afternoon, the FCC issued an erratum revising the deadline for submitting Comments in the rule making proceeding regarding potential modifications to the ownership report filing requirements for noncommercial broadcasters. Comments in this proceeding are now due by June 26th, not June 29th as previously indicated. Please see our earlier post, here, discussing the…
UPDATE: On June 2, the FCC issued an erratum revising the Comment date in this proceeding to June 26th. We’ve updated our earlier post to reflect the change.
The FCC today issued a Public Notice announcing the filing deadline for comments regarding potential modifications to the ownership report filing requirements for noncommercial broadcasters (see our…
In a truly eleventh-hour decision, the FCC released an Order late Friday evening suspending the filing of FCC Form 323 Ownership Reports that would otherwise be due on Monday, June 1st for certain broadcast stations. In its recent Report and Order adopted in the proceeding devoted to Promoting Diversification of Ownership in the Broadcasting Services…
The full text of the FCC’s revisions to its ownership report filing process was released last week. The new rules will require that all commercial stations (including LPTV stations) file an updated Form 323 on November 1 every other year – starting in 2009. The Order does not add much to the summary that we provided when the decision was first announced, though it does make clear that the electronic form will be revised to no longer allow for PDF attachments, instead requiring that all information be provided on the electronic form itself, so that it can be more easily searched. With complex ownership structures, which are sometimes not easily explained in the confines of an FCC form, this may create some difficulties. The Order did not seem to freeze the obligations for the filing of Form 323 Ownership Reports on the old version of the form on the current schedule while the new form is being created and approved by the Office of Management and Budget under the Paperwork Reduction Act, so stations in states with June 1 deadlines for their biennial reports should continue their preparation (see our Advisory on the the reports that are due on June 1 for radio stations in Arizona, District of Columbia, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia and Wyoming, and television stations in Michigan and Ohio).
The Order also asked for further comment on the Ownership Report requirements for noncommercial licensees, including LPFM stations. The Commission asks not only for comments on whether noncommercial operators should be required to file their reports on the same two year cycle as commercial broadcasters, but also for comments on what information should be required from these operators. As noted by the FCC, the question of who controls a noncommercial station is often not an easy one – as there are varying degrees of control and oversight of station operations at many of the institutions that hold noncommercial licenses. As noted by the FCC, there has been a Notice of Inquiry into noncommercial broadcast station ownership pending since 1989, trying to set out when there is a transfer of control of such entities that needs prior FCC approval. Noncommercial stations have been operating under the interim policy set forth in that Notice for almost 20 years. While the Commission does not seemingly ask for any change in the interim policy at this point, by gathering information about what ownership information should be reported on the new ownership report for a noncommercial entity, a resolution of that long-pending proceeding could potentially be in the works.