Privacy Act notice requirement may inhibit FCC plans for 12/15 Ownership Report filing
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.
Interestingly, on November 19 the Commission published in the Federal Register a “System of Records Notice” (SORN) regarding the new form. We say that this is interesting because the timing of that publication may, under the Privacy Act, force the Commission to delay the filing deadline, at least briefly, or make some changes to its filing system.
Under the Privacy Act, any agency that intends to maintain and use any records containing personally identifiable information must publish a SORN in the Federal Register. The SORN provides details on how the records will be handled by the agency. Normally, the publication of a SORN starts a 40-day waiting period (a) during which it is to be reviewed by the OMB and Congress and (b) before the end of which the agency may not implement the system.
But 40 days from November 19 would be (let’s see, 30 days hath November, add five, carry the seven . . .) December 29 – and that would be two weeks after the December 15 deadline toward which the Commission has been driving us all! Presumably recognizing that inconvenient fact – and still obsessively committed to the December 15 deadline – the FCC requested a waiver of the 40-day filing deadline. The basis for its waiver request? Well, the December 15 filing deadline is approaching so fast. (Curiously, the Commission offered no explanation as to why it hadn’t bothered to publish the SORN more than 40 days before the filing deadline the Commission had chosen; it also failed to explain why the December 15 date is so overwhelmingly important that that date, rather than the SORN waiting period, cannot be changed.)
At this point it’s unclear whether that waiver has been, or will be, granted.
But wait, there’s more.
The Privacy Act includes another, separate, 30-day waiting period. Section 552a(e)(11) of the Act appears to prohibit any agency from publishing or disclosing any information in a newly-established or newly-revised system of records until the agency has provided a 30-day public notice period, commencing with Federal Register publication of the SORN. As all you CDBS aficionados know, once an ownership report is submitted and the fee paid, the information in that report is available for all (well, for anybody with Internet access, at least) to see in CDBS the next day. In Privacy Act parlance, that accessibility constitutes a “routine use” of the information filed on the ownership report.
The FCC did not request a waiver of this 30-day period, probably because no waiver is permitted. According to an OMB circular cited by the Commission in its request for waiver of the usual 40-day deadline:
OMB cannot waive time periods specifically established by the [Privacy] Act such as the 30 days notice and comment period required for the adoption of a routine use proposal pursuant to Section (b)(3) of the Act. [emphasis added]
Now we’re not Privacy Act experts, but it sure seems pretty clear from OMB’s language there that the Commission may be prohibited from making public any information filed on the new ownership reports until after the expiration of this 30-day waiting period. Based on the November 19 publication date of the FCC’s SORN, that period would expire on Monday, December 21.
So, even if the Commission persists in requiring the new ownership reports to be filed by December 15, it might need to figure out a way to prevent those reports from becoming public until at least December 22. Can this be done? We have our doubts, but stay tuned to www.commlawblog.com for updates.