Form 323 Update: FCC Has Some 'Splaining To Do

Court gives Commission seven days to respond to charges about irregularities in the way revised ownership report was developed.

With the July 8 deadline for filing commercial ownership reports fast approaching, we have a new development to report: the U.S. Court of Appeals for the D.C. Circuit has ordered the FCC to respond to claims that the revised Form 323 filing requirements – and particularly the requirement that all “attributable” principals provide their social security numbers (SSNs) – were not imposed lawfully. While it’s impossible to predict what the Court will ultimately do, the fact that it has asked the FCC for its side of the story suggests a level of judicial interest which should be of concern to the Commission.

The Court’s involvement was sought by Fletcher Heald, together with a number of state broadcast associations and broadcasters. In May they filed a petition for writ of mandamus asking the Court to step in to compel the Commission to comply with required procedures before forcing anybody and everybody with any “attributable” interest to cough up their SSNs to the agency.

We have been following the problematic history of the FCC’s efforts to revise its ownership report (Form 323) for commercial broadcasters for more than a year. Any readers new to the situation can catch up by taking a romp through our past Form 323 posts here.

A petition for mandamus is what the Court terms an “extraordinary” request in which the petitioner asks the Court to force the agency to comply with statutory requirements which the agency appears to be ignoring. Unlike the more conventional appellate process – which routinely contemplates that the FCC must make its case in a responsive brief before the Court will act one way or the other – the mandamus process does not guarantee any response from the FCC. To the contrary, the Court can, and often does, simply deny or dismiss a petition for mandamus with a two or three sentence order without bothering the Commission at all.

But the Court’s rules provide that a petition for mandamus will not be granted unless the agency is given an opportunity to respond. That’s one reason the Court’s order directing the FCC to respond to the FHH et al. petition is of more than passing interest. Throw in the fact that the Court’s order gives the FCC a mere seven days in which to respond, and that interest grows: such an abbreviated response deadline at least suggests that the Court may be looking to assemble a complete record and act on the petition in advance of the fast-approaching due date (currently July 8) for filing reports on the revised Form 323.

By our reckoning, the FCC’s response to the Court’s order will mark the first time that the Commission will have had to address, in a formal presentation, the unusual – and, in the view of a number of observers, unlawful – approach by which it has tried to force all “attributable” principals to give the FCC their SSNs. Anyone who has been following this story will want to check back here next week to see what the FCC has to say.

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Comments (2) Read through and enter the discussion with the form at the end
Tom Taggart - June 24, 2010 12:58 PM

OK, now a week has passed--the FCC response??

Now we have the latest wrinkle: the Commission's latest missive on form 323 released yesterday. Those of us with recent transfers can ask for a "waiver" of the obligation to file a report for the station transferred after 11/09.

Which implies in the first place that we have an obligation to file an ownership report on a company we have no ownership of???

Which also implies that the Commission can deny us a waiver and require me to certify to the accuracy of a report of the ownership structure of a company I neither own nor have authority to speak for???

You might want to ask the justices on your appellate panel how one is supposed to do this.

2012 cannot come soon enough and we can be rid of these arrogant fools.

Blogmeister - June 28, 2010 6:13 AM

As the commenter correctly noted last week, the D.C. Circuit had ordered the FCC to respond to a petition for mandamus (filed by, among others, Fletcher Heald) questioning the legality of the revised Form 323. As indicated in a blog we posted late in the afternoon of Friday, June 25, the FCC had asked for and been given a two-day extension of the brief seven-day filing deadline, and we in turn had only three days in which to reply. On June 25 we filed our reply and posted links to both the FCC's opposition and our reply (http://www.commlawblog.com/2010/06/articles/broadcast/form-323-pointcounterpoint/).

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