Parsing Form 397

Posted on August 31, 2010 by Anne Goodwin Crump

Which TV licensees have to file?

Recently, the Minority Media & Telecom Council asked the FCC to suspend enforcement of the EEO rules for three months. (You can read MMTC’s request here; alternatively, you can read our monthly Memo to Clients summary of the request here.) At this point, it’s anybody’s guess as to whether the FCC will grant MMTC’s request – although, frankly, if even MMTC is asking that EEO enforcement be suspended, the Commission really should be wondering what’s wrong with this picture.

But regardless of what the Commission eventually does, it might want to take this opportunity to clean up at least one aspect of its EEO “Broadcast Mid-Term Report” (FCC Form 397) that seems oddly and unnecessarily confusing, if not flat-out inconsistent.

Form 397 is a cute little three-page form. The first page calls on the reporting licensee to provide its name and contact information and identify the stations covered by the report. No real surprises there.

But on page two, Section I consists of the following single yes/no question:

Does your station employment unit employ fewer than five full-time employees, if television, or fewer than eleven full-time employees, if radio?

Not an overly complicated question. Then the form reads:

If yes, you do not have to file this form with the FCC. However, you have the option to complete the certification below, return the form to the FCC, and place a copy in your station(s) public file.

This last instruction raises an obvious question – i.e., who in his right mind would “opt” to file a form that the FCC specifically says does not have to be filed? – but that’s not the problem. Rather, the problem arises from the fact that the “filing instructions” located immediately above Section I include the following:

If a television station employment unit employs fewer than five full-time employees, only the first two pages of this report need be filed.

So does that mean that TV stations with fewer than five have to file a report (even if the report is limited to only two pages), or does it not have to file anything at all (unless, of course, it opts to)?

Oh, and did we mention that the underlying rule (47 C.F.R. §73.2080(f)(2)) provides that

The Commission will conduct a mid-term review of the employment practices of each broadcast television station and each radio station that is part of an employment unit of more than ten full-time employees four years following the station's most recent license expiration date as specified in §73.1020.

Let’s get this straight. If you’re a TV licensee with fewer than five full-timers, according to Form 397 either “you do not have to file this form” or “only the first two pages of this report need be filed”. Huh? And Section 73.2080(f)(2) isn’t much help in sorting this out, since that section could be read to say that mid-term reports are expected from TV stations with more than ten FT employees – even though the 2002 Report and Order adopting the rules makes reasonably clear (check out Paragraph 153) that the Commission intended to limit mid-term EEO reviews to TV stations with five or more FT employees.

There is at least one possible way (see “Suggested Solution”, below) to twist this regulatory Rubik’s cube to make all the seemingly incongruous parts look consistent, but really, would it be that hard for the FCC to take the time to articulate its requirements clearly and consistently in the first place? Sure, we know that the number of TV stations with fewer than five full-time employees may be limited, but is that any excuse for at-best-ambiguous-at-worst-hopelessly-inconsistent forms?

[Suggested Solution:

Step 1: Understand that Section 73.2080(f)(2)’s clause reading “that is part of an employment unit of more than ten full-time employees” refers only to the term “each radio station”, and not to “each broadcast television station”.  That reading is not absolutely dictated by the grammatical structure of the particular sentence in question, but it’s also not clearly foreclosed by it.

Step 2: Since “television station” in Section 73.2080(f)(2) is not modified by the “more than ten” clause (see Step 1), refer back to the prefatory language of Section 73.2080(f). That language limits the reach of that section (including its subsections, such as 73.2080(f)(2)) to employment units with “five or more persons in full-time positions, except where noted”. Thus, the term “television station” as it appears in 73.2080(f)(2) can be read to be limited to TV stations with five or more full-timers. That assumes, of course, that the “except where noted” phrase in the preface is intended to refer to – and except out – the “more than ten” clause in (f)(2). Again, that assumption is not absolutely dictated by the rules’s language, but it’s also not clearly foreclosed by it. 

Step 3:   Assume that the FCC really means it when it says (in Section I of Form 397) that TV licensees with fewer than five FT employees “do not have to file this form with the FCC”.

Step 4: Assume that, when the form’s instructions say that “only the first two pages of this report need be filed” by TV licensees with fewer than five FT employees, it really means that those pages need be filed only if the licensee chooses to go ahead and file a report even though it doesn’t have to.

End result: TV employment units with fewer than five full-time employees need not file any mid-term EEO reports.]
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MMTC To FCC: Rethink Form 323

Posted on November 19, 2009 by Harry Cole

Too much risk, no real benefit seen in required submission of social security numbers

The murky situation surrounding the FCC’s effort to deploy its revised Ownership Report (FCC Form 323) just got murkier with the filing of a letter from the Minority Media and Telecommunications Council (MMTC) on November 18. In its letter, MMTC lets the FCC know, in no uncertain terms, that the new form’s mandatory inclusion of individuals’ FRNs “would represent an unnecessary invasion of personal privacy.”

And that’s just in the first paragraph.

The MMTC letter is particularly significant because MMTC is seen by many as a – and, by some, the – preeminent representative of minority interests before the Commission. The new Form 323 is intended to provide the Commission with a clearer picture of minority and female ownership in the broadcast industry, presumably so that the Commission might be able to justify more aggressive “affirmative action” policies aimed at increasing minority/female ownership. But if even the MMTC believes the revised form goes Too Far in requiring private information, the Commission may be inclined to rethink its revised reporting approach.

MMTC’s letter includes some suggested alternatives which the Commission could, and probably should, explore. But with the December 15 reporting deadline looming less than four weeks away, it’s unclear how the Commission might do so . . . without, that is, abandoning that December 15 date. Of course, had the Commission announced its proposed revisions publicly last June and given us all an opportunity to comment on them (like the Commission is ordinarily expected to), this last-minute uncertainty could have been avoided.

Check back to www.commlawblog.com for updates on this evolving situation.

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FCC Invites Comments On MMTC Radio Rescue Petition

Posted on September 23, 2009 by Davina Sashkin

The FCC has formally invited comment on the 17-point “Radio Rescue Petition” filed by the Minority Media and Telecommunications Council (MMTC) last July. You can download a copy of the Petition from MMTC’s website here. Comments are due by October 23.

The Petition presents an extraordinarily wide range of suggested steps intended (a) to jump-start the flagging radio industry and, in so doing, (b) to promote increased participation by minorities and women in the industry as well. We described the Petition in considerable detail in Fletcher Heald’s Memorandum to Clients last month. Here are some of the Petition’s more prominent – and potentially controversial – features.

Re-purposing of TV Channels 5 and 6 for audio use– Picking up on proposals previously filed with the Commission (by, e.g., the “Broadcast Maximization Committee” in its comments in MB Docket 07-294), MMTC suggests that TV Channels 5 and 6 could be converted to audio use. That chunk of the spectrum, largely freed from television operation following the DTV transition, could serve as a new home for AM licensees interested in improving the quality of their service. Additionally, the Channel 5/6 spectrum could accommodate noncommercial FM and low-power FM stations, affording those services considerable space while, ideally, removing some interference-producing clutter from the existing FM band. MMTC proposes the establishment of a high-profile committee (patterned after the Advisory Committee on Advanced Television Services, the folks who ultimately brought us DTV) to work out the details of all this.

Revised community coverage and main studio rules for commercial stations – MMTC would have the FCC reduce, from 80% to 50%, the required coverage of each commercial station’s community of license. As MMTC sees it, this change would still provide a majority of the community with a listenable signal while making it easier for incumbent stations to make improvements or move tower sites, thereby increasing flexibility in tower siting and facilitating a more targeted approach to some audiences. 

With respect to AM stations, MMTC urges that all nighttime coverage requirements be eliminated (or at least “relaxed”). 

And it also proposes that the main studio rule be eased considerably. That rule currently requires that studios be maintained either (a) in the community of license, or (b) within 25 miles of the transmitter site, or (c) within the city-grade contour of any station (of any service) licensed to the community. In MMTC’s view, licensees should be permitted to establish their studios pretty much anywhere as long as stations not meeting the current rules: (a) maintain its public file and a direct telephone tie line at the library nearest to the community of license and (b) host three town hall meetings a year in the community of license to hear from local citizens.

Creation of a new local “L” class of LPFM stations – MMTC proposes that LPFM development be promoted through the creation of a new local “L” Class entitling some LPFMs to primary service status upon the completion of two years of operation as a “significantly local service”.

Extended construction periods for ALL new station construction permits – According to MMTC, in light of the economic crisis, the Commission should adopt a blanket one-year extension of the three-year construction period for all original permits for new stations. Concerns about warehousing spectrum, says MMTC, are vastly outweighed by the hardships and barriers to entry faced by broadcasters – especially small-market broadcasters – in obtaining financing and tower siting.

MMTC’s proposals are ambitious and far-reaching. Apparently designed to attract the broadest amount of support throughout the radio industry, they offer a little something for just about everybody. In doing so, however, they appear in a number of respects to transgress aspects of the “localism” orthodoxy developed in recent years under the watchful eye of, in particular, Commissioner (and, for a time, Acting Chairman) Copps. For example, the one-two punch of liberalized main studio rules and reduced community coverage requirements flies in the face of the agency’s previously-expressed interest in tying stations even more tightly to their communities.

This puts the Commission in a difficult position. On the one hand, it has – at least tentatively – embraced the concept of more intense regulation designed to insure greater localism. On the other, it has expressed concern about the paucity of minority/female-oriented stations. MMTC, an established representative of minority and female interests, appears to be suggesting to the Commission that the tension between localism and minority/female interests should be resolved in favor of the latter, even if that would benefit non-minority/female interests as well. 

It will be very interesting to monitor the Genachowski Commission’s response to that approach. It has been observed that the 2007 localism proposals were in many respects grossly unrealistic and likely to inflict extensive harm on a radio industry which was already suffering. The intervening economic meltdown of 2008 has exacerbated those problems. Will the Commission now back off some (or all) of its localism proposals in the face of MMTC’s petition?

Of course, not all of MMTC’s proposals run counter to localism. Some are not at all inconsistent with the Commission’s previously announced localism approach. But those proposals are still controversial. The Channel 5/6 suggestion would theoretically promote localism by assuring ample spectrum for new (and transplanted) LPFM stations. But re-purposing Channels 5/6 from video to audio would require the Commission to jump back into the potential quicksand of major league service migrations just months after the Commission had managed, at long last, to get itself out of similar quicksand on the TV side with the completion of the DTV transition. There is bound to be considerable resistance to that proposal, even though its proponents promise a far more efficient and equitable mechanism for distributing radio spectrum for the coming decades.

In any event, the Commission has invited public comment on the MMTC Petition and its various component proposals. Let the public debate begin.
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