FHH to FCC: Think Again
Fletcher Heald seeks review of mandatory social security number/FRN aspect of revised Form 323
Following up on the Motion for Stay it filed a couple of weeks ago relative to the revised commercial broadcast Ownership Report Form 323 (which the FCC has still not formally taken the wraps off of), Fletcher Heald & Hildreth has filed a “Petition for Reconsideration or Such Alternative Relief As May Be Appropriate” on the same topic. You can read a copy of FHH’s Petition here.
Problems with the revised Form 323 have been addressed repeatedly on this blog– but apparently not at the FCC – for months. (If you’ve been living in a cave since last June, you can start catching up by reading our posts here, here and here.)
In its Petition FHH highlights a number of those problems, pointing out in particular that the Commission isn’t supposed to impose significant new regulatory burdens without first providing the opportunity for public comment through a rulemaking proceeding. Here, the FCC’s new form would require each and every individual with an “attributable interest” in a broadcast licensee to cough up his/her social security number to the Commission (in order to get themselves FCC Registration Numbers – or FRNs – which they would then have to include in the new Form 323). Forcing disclosure of such sensitive Identity-Theft-Prone information as SSNs is certainly a new and significant regulatory burden.
And just what “attributable interest” folks would be required to throw their SSNs into the FCC’s hopper? Um, that would be every officer and every director and everybody owning 5% or greater interests in both (a) corporate licensees and (b) corporations that in turn hold attributable interests in corporate licensees, as well as all non-insulated members of LLC’s, limited partnerships and the like which happen to be licensees or which happen to hold attributable interests in licensees.
That’s a lot of SSNs right there.
But the Commission never bothered to mention anything about that requirement before news of it popped up on the website of the Office of Management and Budget last August. To the contrary, up to that point the Commission had repeatedly and expressly and very publicly (like, “in the Federal Register” publicly) assured everybody that its new form would not implicate any confidentiality or privacy interests. By October, of course, the cat was out of the bag, and the FCC ‘fessed up to OMB that the new form, what with its social security/FRN requirement and all, really did raise significant privacy concerns. But even today you’ll look long and hard for any public acknowledgement of those concerns, by the Commission, in any public notice, or decision, or even a posting on its own website. Nor has the Commission ever bothered to try to explain how it could have thought that demanding the submission of thousands upon thousands of social security numbers might not have implicated any privacy concerns.
So our sense is that it’s going to be very difficult for the Commission to implement that requirement without taking a couple of giant steps backward and going through the rulemaking process which it seems to have overlooked the first time around. We shall see if the FCC agrees.
Last month 
The December 15 deadline for filing the revised Ownership Report (Form 323) for commercial broadcasters has been extended to January 11. According to a 
The 
As of late in the afternoon on November 20, the Commission is still apparently sticking to its December 15 deadline for its revised Ownership Report (FCC Form 323) for commercial broadcasters – at least according to its website. The FCC doesn’t seem to think that it’s a problem that that revised form has still not been made public, or that the dwindling period (less than four weeks as of this writing) between now and the deadline is interrupted by the Thanksgiving holiday. While rumors swirl about possible postponement of the deadline – some suggesting a postponement is possible, others suggesting just the opposite – the Commission so far has kept mum, which means the clock is still ticking toward December 15.
On November 19 the Senate Commerce Committee approved 
Fletcher, Heald & Hildreth has filed a Motion for Stay with the Commission, asking it to hold off on the implementation of its new Ownership Report (FCC Form 323) for commercial broadcast stations. You can read the 
It is hard (or maybe not so hard) to believe that back in February when the American Recovery and Reinvestment Act was enacted, the administrators at the Departments of Agriculture and Commerce were promising that grants would start to be made in May, with most of the first round funds awarded in June. Here we are fast approaching December and nary a grant for infrastructure projects has been made. To be sure, wizened and calloused observers of the bureaucratic process predicted that it would take considerably longer than the original estimates, but the same wizened and calloused observers also expected that, having later committed to an autumn award date, the BIP and BTOP folks would have been driven to get something out by September, October or even November, if for no other reason than to keep their street cred. The difficulty seems to be that they made the application process so cumbersome, but nevertheless got so many applicants, that it's taking months to sift through all the requests. Surprisingly, when millions of dollars in free money is put up for grabs, lots of people ask for it.
FCC’s proposed rules good on paper, may do little in practice
You have read the recommendations of our colleague Mitchell Lazarus, both for 
Some of you radio broadcasters out there might have received letters recently from one or more of the following:
They think big in Texas, and they think independent in Texas, and so it should be no surprise that an FM radio operator was not impressed when the Feds arrived at his doorstep. Some FCC agents claimed that the operator – one Raymond Frank – was lacking some piece of paper or other from some agency Back East in Washington, but Mr. Frank knew better. No “pirate broadcaster” he – no, he was operating strictly within the boundaries of the Republic of Texas, and so was not subject to the laws of the Yoo-nited States or any little ol’ FCC. (Frank also argued that the FCC’s rules violate the First Amendment. But if Frank was not a U.S. Citizen – being as how he claimed Republic of Texas citizenship and all – that argument may have been a tad inconsistent, but we digress.)
Late last month the FCC’s Wireless Bureau issued an 
Back in September we 
As we have reported 
As part of its ongoing efforts to get a handle on All Things Broadband before the FCC’s homework (i.e., the National Broadband Plan, a/k/a the NBP) is due in February, the Commission has released yet another 
The Commission has invited public comment on the NPR proposal to deep-six 
Digital (a/k/a “HD”) radio has yet to captivate the consuming public as much as its promoters might have hoped. Still, that technology has opened up some opportunities for creative broadcasters looking to achieve results that might not otherwise be achievable under existing FCC rules and policies. One example surfaced recently, brought to our attention (and the Commission’s) by an unhappy competitor.
