We were wrong.
As a result, there’s little in the way of hard news to report. Perhaps the most important factoid to be gleaned from the R&O is that the filing deadlines for ownership reports between now and November 1 apparently remain in place. When the Commission announced that it was abandoning the staggered filing approach which has been in place for years and replacing it with a single November 1 deadline for all ownership reports, folks whose reports are currently due on June 1, August 1 and October 1 justifiably wondered whether they were going to be forced to file on those dates, and then again on November 1. The answer is that it does in fact look that way. The R&O is silent about any interim relief for licensees with June, August and October filing dates, so it looks like you all will be having to file two sets of ownership reports this year.
If, that is, the Bureau manages to get things together in time for the November 1 deadline.
This is not a criticism of the Bureau, which would ordinarily have the experience and the expertise to handle this kind of chore. The problem is that the Commission has heaped a lot of stuff on the Bureau’s plate all at once, with very little time in which to process it all.
If the Commission wanted the staff just to tweak the existing form a bit, that would probably not be any problem at all. But the Commission wants the new form set up “so that ownership data is incorporated into the database, is searchable, and can be aggregated and cross-referenced electronically.” That means, among other things, that the use of attachments will probably be history. Attachments have provided respondents a convenient way of presenting their own particular ownership information in narrative, or chart, or table, or some other, form. But the information in attachments (normally filed as PDFs) can’t be fed automatically into a searchable database, so the odds are that we’ll be kissing attachments good-bye. Accordingly, the form will have to be adjusted to permit the inclusion of information that would otherwise have been in those attachments.
Additionally, the new forms will have to be adjusted to encompass the expanded ranks of respondents. LPTV and Class A TV licensees will all be reporting for the first time, as will a number of parties who were previously exempt from reporting.
And the system will have to be set up to include “verification and review functions” and preclude the filing of incomplete or inaccurate data.
And once the system is set to go, it will have to be blessed by the Office of Management and Budget.
And all this has to be ready to go sufficiently in advance of November 1 – less than six months from now – to permit thousands of respondents to hop on line, fill out their respective forms, and submit them.
Anything is possible, and the Media Bureau staff are among the most competent folks around, so we can keep our fingers crossed. But it still seems like a pretty tall order.
And did we mention the post-filing audit process? In the R&O the Commission directs the Bureau “to conduct audits on a random basis to ensure the accuracy of the Ownership Reports”. While we can all applaud a desire for maximum accuracy, let’s think about this for a minute. Recall that the revision of the ownership reporting system is being undertaken to provide the Commission with supposedly more accurate statistics concerning minority and female ownership. The audit provision, then, is presumably intended to permit the Commission to double-check the accuracy of claimed minority and female ownership.
But how is that double-check going to work? What is it going to look at? If a respondent claims that certain of its owners or principals are women or minorities, how could the Commission expect the respondent to “prove” the accuracy of that claim? In particular, assuming that the FCC comes up with a suitable definition of “minority” for these purposes, will each respondent (in the initial report or any follow-up audit) be expected to provide some demonstration that its claimed “minority” participants really are “minorities”? How deeply does the Commission intend to delve into such potentially delicate inquiries?
For example, how will a party claiming to be “of Spanish Culture” (a “minority” category specified in the current Form 323 instructions) be expected to support that claim? [Historical note: Back in 1981, the FCC decided that a Polish-born applicant named Liberman qualified as “Hispanic” for purposes of the FCC’s minority ownership policies after the applicant attested (among other things) that he was descended from Spanish Jews who had been expelled from Spain in 1492.]
The current form also refers to “person[s] having origin in” any of certain broad ethnic or racial categories (e.g., the “original peoples of North and South America”, or “the black racial groups of Africa”, or the “original peoples of the Far East, Southeast Asia or the Indian Subcontinent”). But what does “having origin in” mean, anyway? How much “origin” is necessary? How far back? The Commission has yet to say.
There are other, similar, unanswered questions, but you get the point.
Racial or ethnic categorization is always a very dicey activity. It is even more so when undertaken by the government – after all, the Constitution generally prohibits governmental discrimination based on such categorizations. Since the Commission seems ready to embark on a race/ethnicity/gender-based regulatory program, it will have to be very clear how it is defining these essential terms.
In the meantime, we wish the Bureau good luck in meeting this latest challenge.
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Get your calendars out and sharpen your pencils – we have updates on some deadlines to report.
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