Revised Form 323 Available - April 9, 2010
Bureau announces July 8, 2010 deadline for filing November 1, 2009 information
It’s official!! The Media Bureau has announced that, as of April 9, 2010, the revised Form 323 to be used by commercial broadcasters for their biennial Ownership Reports is available for use. Disappointingly (but, given its track record in this matter, not surprisingly), the Bureau’s public notice does not bother to address any of the serious problems that have plagued its efforts to revise the form. Instead, the notice imposes a deadline of July 8, 2010, for the completion and submission of biennial Ownership Reports for all commercial broadcast licensees. Oh, and it also reminds us that the information to be submitted on that report must reflect the reporting licensee’s ownership as of November 1, 2009.
The Bureau encourages everybody to file “as early as possible”.
Idiots at work again, leading to the first of many questions I am sure:
As of November 1, 2009 we owned 2 stations; 12/28/2009 we closed on a third station, taking that company out of the radio business (and causing us to file a new ownership report for our company at that time)...So....
Who files the ownership report for that third station? Or do we file the report for that third station using the information for the former owners? And how in hell are we to get FRN's for the 4 owners of that corporation?
Followup:
The particular question is #5 on form which asks for a statement that "All of the information furnished in this report is accurate as of [fin in the blank].
Followed by a note indicating the correct answer is 11/1/3009 for the first biennial report. So this would indicate that our corporate report should not list the station we bought in December--and then would require another report to be filed for that station....???
Tom --
Good questions, as to which we have no real solid answers. It does appear from everything the FCC has said that it expects current licensees to file biennial reports which reflect their current stations' ownership as of November 1, 2009. For stations that have been acquired since 11/1/09, the FCC presumably expects the current licensee to try to get the necessary information from whoever was the licensee as of 11/1/09. But as you note, even if you know for sure the names, positions and ownership percentages of the previous owners, it may be trickier (or impossible) to get FRNs for each of those owners. Presumably that's when you can use the Special Use FRN option.
Certifying as to the historical ownership, etc., of some business entity that you're not at all involved with (except for the fact that that entity may have sold you a station) may be a dicey proposition for all concerned. The FCC insists that it's trying to compile an accurate and reliable database, but then it inexplicably insists on the submission of old and possibly unreliable data. Go figure.
But remember this is electronic filing...
ABC Corp. sells KXXX to XYZ.Corp after 11/1/09. Obviously, if you can get ABC corp to file the report for the station they no longer own there is no problem. But if ABC corp's owners are on the beach spending XYZ's money, there are several big problems.
If XYZ corp. tries to file an ownership report for KXXX, even assuming they have information on ABC Corp's corporate structure, it's going to show as XYZ corporation on those parts of the form the computers fills in--including using XYZ corp.'s FRN.
And XYZ Corp can't file as ABC Corp. because the system won't allow this. For one thing, without ABC Corp's cooperation, XYZ corp. is not going to have ABC Corp's password for their corporate FRN. Without that, the form can't be filed.
And are you seriously suggesting I, as an attorney, should certify the information for the other company even if I did find away around the electronic filing hurdles?
Time to rattle some cages at the Portals.
Tom --
It certainly appears that the FCC has left open a bunch of questions about the mechanics of the filing process -- although if XYZ (the buyer in your hypothetical) files a report identifying ABC as the owner as of 11/1/09, I don't think that XYZ would need ABC's FRN password (but I have not yet actually tried to file one in those particular circumstances, so your guess may be as good as mine).
As for the advisability of certifying information about some other company, your skepticism is understandable -- that's why I referred to that as a "dicey" undertaking. But it does appear to be what the FCC expects licensees who acquired their stations after 11/1/09 to do.
In order to file as ABC corp one would need to have ABC Corp's password for the FRN. Otherwise the form could not be filed. Remember there is supposed to be a fee attached to this filing!
There would appear to be only two ways to file:
One could open a CDBS account as "ABC Corp" --using their address, etc. etc.--which would then be filled in automatically on the 323 form when it was opened. Then enter their corporate info as of 11/1/09 for station KXXX in my example. But the only way it could be filed would be under XYZ's corp's FRN.(Unless one were to get a new FRN as ABC Corp...but how ridiculous does this get?)
The other way would be to file under XYZ's usual CDBS--then fill in the ABC Corp's corporate information for station KXXX--leaving everything in a complete state of confusion, since this would appear to indicate that XYZ Corp's officers and directors are the those of ABC Corp.--at least for the one station!!???
Tom --
More good questions. I suspect that Option 2 (XYZ files using its own CDBS account, but shows ownership information relating to ABC) is what the FCC has in mind, as bizarre as that sounds.
But that's just a guess. If you want conclusive answers, these should be addressed to the Commission, possibly through their Form 323 FAQs page (http://www.fcc.gov/bureaus/mb/industry_analysis/form323faqs.html). Good luck with that, given the FCC's seeming reluctance thus far to address many (if any) of the obvious problems with the revised 323.
Missed the link the first time around--at very top of the 323 FAQ page: Form323@fcc.gov.
We'll see if I actually get an answer.