Spreadsheet uploads apparently approved, SSN-based FRNs still required

You’ll never guess what snuck onto the OMB website a week or two ago – some more changes to the draft Ownership Report (FCC Form 323) for commercial broadcasters. Who knew? (The answer to that question appears to be as few people as possible, at least if the Commission had anything to say about it.)

 The FCC’s OMB filing presumably signals a renewed agency interest in implementing modified reporting requirements. Readers may recall that that interest first popped up in late 2008, in connection with the Commission’s efforts to encourage greater diversity of broadcast ownership. That led to a Dilbert-like series of developments as the Commission (in the role of the pointy-headed boss) gave the Media Bureau (in the role of Dilbert) a hopelessly vague set of directions and a totally unreasonable deadline by which to get the job done. 

Of course, things didn’t work out so well, as the Bureau encountered multiple practical problems and considerable resistance from various quarters. The November 1 deadline initially specified by the Commission slipped back into December, then into January, and then just before Christmas the whole project was put on indefinite hold. (Need a refresher on all this? Check out our collection of reports on the Form 323 fiasco here.)

Since December we have heard nary a word from anybody at the Commission about Ownership Reports, even though the Bureau was supposedly working to address numerous problems which had been identified by folks who tested the December version of the form. In view of the difficulties encountered by the Bureau last Fall, you might have thought that this time around the Bureau might ask for some additional public input on the changes to the form. You would, unfortunately, be mistaken. 

The Commission’s most recent changes to the form simplify things in one area but leave other previously-identified problems untreated.

On the upside, the latest iteration of Form 323 includes the ability to upload spreadsheet documents. This should eliminate, or at least dramatically reduce, much of the soul-killing input drudgery that the original version of the form required.

On the downside, it appears that the social security number (SSN) based FCC Registration Number (FRN) requirement is still with us. We know this because the draft form available on the OMB website continues to require SSN-based FRNs for all attributable principals. 

 Over and above that, one of the recently-submitted changes involves revised language in the explanatory “pop-up” box that provides information about “Special Use FRNs” (SUFRNs). The change is not especially helpful.

 As was the case last Fall, the revised form permits reliance on a SUFRNs when, after good faith efforts, a responding licensee is unable to ascertain the SSN-based FRN for one or more of its attributable principals. (Did we mention that the SUFRN option is available only in biennial reports, but no other Ownership Reports?) The “pop-up” box first alerts the reader to the SUFRN option, admonishing anybody who plans to rely on that option to read the FCC’s “Frequently Asked Questions” about Form 323 on the Commission’s website. 

 The changed language consists of a sentence in a “note” which appears in the “pop-up” box. According to what the FCC told OMB, the changed language “is necessary to clarify necessary information to the public. The new FRN pop up language is much clearer and easier to understand by the public.” 

You be the judge. 

Here’s the sentence as it originally appeared in the “pop-up” note:

Moreover, use of the ‘Special Use FRN’ does not relieve Respondent of its ultimate duty to obtain a fully compliant FRN.

Now here’s the sentence as revised in the “pop-up” note uploaded onto the OMB website on March 25, 2010:

Respondents who use a non-SSN based ‘Special Use FRN’ will be deemed fully compliant with the Form 323 filing obligation for purposes of this initial filing and the lack of SSN-based FRNs in response to Question 3(a) will not subject Respondents to enforcement action.

The newer formulation certainly seems less threatening than its predecessor, until you realize that the FAQ on the FCC website – the one that the “pop-up” instructs you to read – still includes precisely the same language as the earlier version of the sentence. That being the case, how does the new sentence change anything at all – other, possibly, than to confuse matters? (Interesting factoid: In its OMB submission, the FCC characterizes this and the other changes to the form as “non-substantive” – so presumably the Commission really didn’t mean for its new language to change anything.)

While the latest revisions to the Form 323 may address some of the mechanical problems with the Form (e.g., bulk uploading of spreadsheet data), they do nothing to address the substantive problems with the form which have been brought to the Bureau’s attention several times already. 

More importantly, the hush-hush manner in which the Commission continues to operate aggravates, rather than allays, the serious procedural flaws that FHH raised last fall. The Commission has consistently failed to provide the notice and comment opportunities mandated by the Administrative Procedure Act with respect to its proposed overhaul of Form 323. This is ironic, given the fact that the Commission routinely trumpets the supposed “transparency” of its operations. The fact of the matter is that the revision of Form 323 has been anything but transparent.

One more odd aspect of the Commission’s Form 323: it appears (from the materials currently on file at OMB) that the FCC is continuing to insist that the first biennial Ownership Report to be filed on the revised form must show ownership information as of November 1, 2009. But that means that the next biennial reports will be guaranteed to be more than eight months out of date from the get-go – even though the Bureau has repeatedly expressed its desire to ensure the accuracy of the data collected. As the Bureau left things last December, the initial biennial Ownership Report won’t be due until 90 days after the revised form is released by the Commission.  So even if the Commission were somehow to have made the new Form available by April 1 (which it didn’t), reports would not be due until July 1. Forcing licensees to report November 1 ownership data on the following July 1 (or later) doesn’t really seem like the best way to ensure accurate and reliable data. 

According to the Bureau’s last Form 323 public notice (from December, 2009), the new deadline for filing will be at least 90 days from the date that the new form is made available for biennial filings. So even though the OMB appears to have approved the most recent changes, the 90-day clock has not yet started to run. However, that could happen any day now – unless the Bureau has still more changes up its sleeve – so check back here for updates.

In any event, it appears that (a) the FCC is once again paying some attention to the Form 323, but (b) it has not learned anything from the failure of its previous attempts to revise the Form without any public input. The next couple of laps in this long-distance race should be interesting.