Fletcher Heald seeks stay of Form 323 filing deadline

Fletcher, Heald & Hildreth has filed a Motion for Stay with the Commission, asking it to hold off on the implementation of its new Ownership Report (FCC Form 323) for commercial broadcast stations.  You can read the FHH motion here.  As we have reported previously on our blog, the revised Form 323 is currently due to be filed by December 15, even though the Commission has still (at least as of the morning of November 17) not formally unveiled that form.  (Want a sneak peek? Here’s a link to the version of the form that was apparently approved by OMB. Whether the final version that the FCC plans to post on CDBS will differ from the version taken from the OMB site remains to be seen.)  

If the Commission stays on its current schedule, reporting licensees will have, at most, only four weeks (including the intervening Thanksgiving holiday) to access, complete and file the form. Since the universe of reporting licensees has been expanded considerably – to include, for the first time ever, LPTV and Class A TV stations – that’s a pretty tall order in any event.

But the primary problem with the new form is that it requires all individuals and entities with an “attributable” interest in the licensee to identify themselves with their own unique FCC Registration Numbers (FRNs).

To get an FRN, an individual has to provide to the FCC his/her social security number, while entities like corporations have to cough up their equally sensitive taxpayer identification numbers. There is considerable, and understandable, reluctance to do that in this day and age of identity theft and Internet security issues – especially when the new requirement extends to each and every lowly officer (think Assistant Secretary, etc.) and pretty much anybody with as little as a 5% ownership interest.  (You don’t have to take our word about the dangers of the Internet – just ask Chairman Genachowski, who last month joined with the Chairman of the FTC to “encourage the public to take safeguards to protect themselves, their privacy , and their personal information online”.) 

What’s more, the inclusion of individual FRNs as part of the revised Ownership Report process was never disclosed to the public by the FCC in a way which allowed for public input. In fact, the FCC didn’t even acknowledge, much less address, any privacy concerns until they were raised by a number of parties before the OMB. Au contraire, when the FCC initially sent its draft form to OMB in August, it specifically – and incorrectly – said that the form did “not affect individuals or households” or create any “impacts under the Privacy Act”. 

And even when, in October, the Commission finally conceded that, gee, the form would contain personally identifiable information and that, gosh, privacy might be something to think about here, it still didn’t implement the full range of steps ordinarily mandated by privacy laws. Instead, the Commission said that it would get right on those steps for sure, even though it planned to require use of the new form before all the privacy hoops had been jumped through.  (Check it out at page 7 of the FCC’s October 6 letter to OMB.)

In view of all of these considerations, it seems to us at FHH that the appropriate thing for the Commission to do is to stop, take a deep breath, and work on developing an Ownership Report system that addresses all important issues in a procedurally proper manner. And in the meantime, it should hold off on requiring the filing of Form 323.

Check back to www.CommLawBlog.com for updates on continuing developments in the Form 323 situation.