Fletcher Heald seeks review of mandatory social security number/FRN aspect of revised Form 323

Following up on the Motion for Stay it filed a couple of weeks ago relative to the revised commercial broadcast Ownership Report Form 323 (which the FCC has still not formally taken the wraps off of), Fletcher Heald & Hildreth has filed a “Petition for Reconsideration or Such Alternative Relief As May Be Appropriate” on the same topic. You can read a copy of FHH’s Petition here.

Problems with the revised Form 323 have been addressed repeatedly on this blog– but apparently not at the FCC – for months. (If you’ve been living in a cave since last June, you can start catching up by reading our posts here, here and here.)

In its Petition FHH highlights a number of those problems, pointing out in particular that the Commission isn’t supposed to impose significant new regulatory burdens without first providing the opportunity for public comment through a rulemaking proceeding. Here, the FCC’s new form would require each and every individual with an “attributable interest” in a broadcast licensee to cough up his/her social security number to the Commission (in order to get themselves FCC Registration Numbers – or FRNs – which they would then have to include in the new Form 323). Forcing disclosure of such sensitive Identity-Theft-Prone information as SSNs is certainly a new and significant regulatory burden.

And just what “attributable interest” folks would be required to throw their SSNs into the FCC’s hopper? Um, that would be every officer and every director and everybody owning 5% or greater interests in both (a) corporate licensees and (b) corporations that in turn hold attributable interests in corporate licensees, as well as all non-insulated members of LLC’s, limited partnerships and the like which happen to be licensees or which happen to hold attributable interests in licensees.

That’s a lot of SSNs right there.

But the Commission never bothered to mention anything about that requirement before news of it popped up on the website of the Office of Management and Budget last August.  To the contrary, up to that point the Commission had repeatedly and expressly and very publicly (like, “in the Federal Register” publicly) assured everybody that its new form would not implicate any confidentiality or privacy interests. By October, of course, the cat was out of the bag, and the FCC ‘fessed up to OMB that the new form, what with its social security/FRN requirement and all, really did raise significant privacy concerns. But even today you’ll look long and hard for any public acknowledgement of those concerns, by the Commission, in any public notice, or decision, or even a posting on its own website. Nor has the Commission ever bothered to try to explain how it could have thought that demanding the submission of thousands upon thousands of social security numbers might not have implicated any privacy concerns.

So our sense is that it’s going to be very difficult for the Commission to implement that requirement without taking a couple of giant steps backward and going through the rulemaking process which it seems to have overlooked the first time around. We shall see if the FCC agrees.