The FCC has announced that, as of October 1, commercial broadcasters will be able to file their 2013 biennial Ownership Reports (FCC Form 323). These reports are technically not due until December 2. Still, we should all bear in mind that
(a) ALL attributable interest holders in ALL commercial licensees must file biennial reports, which means that the load on CDBS will increase substantially (yes, you have to use CDBS; no paper filings will be accepted); (b) December 2 happens to fall shortly after the Thanksgiving holiday and shortly before the big and often distracting year end holidays (Christmas, Hanukkah, Kwanzaa, New Year’s); and (c) a number of licensees will also be having to file renewal applications on or before December 2. All of those are pretty good reasons to get ahead of the curve and file your 323’s sooner rather than later
The information to be reported must reflect things as of October 1, 2013. In other words, even if a station changes hands or new officers, directors, shareholders or other attributable interest holders are brought into the mix between October 1 and when you end up filing the Ownership Report, your biennial report must show the station’s ownership as it was as of October 1.
This year reporting parties will still be able to use Special Use FRNs (SUFRN). (If you’re fuzzy on the whole SUFRN thing, check out this earlier post on the topic.) While the instructions on current version of Form 323 are surprisingly silent about that option – in fact, the instructions say nothing at all about SUFRNs – the Commission has updated its online Form 323 FAQs to provide information on SUFRN use.
One quirk of the Form 323 which is not mentioned on the FAQ page does happen to pop up on a different FCC webpage titled “Most Common Form 323 Filing Errors”.
As has been the case in the past, the form is set up to recognize only whole numbers when it comes to voting interests. While the form itself does not appear to provide any instructions on this point, the FCC’s “Most Common Errors” webpage helpfully instructs that the “Biennial form will not accept decimal placements. Please round to the nearest whole number.” That page then refers the reader to the FAQ page for more information on how to report voting interests, but we were unable (at least as of September 28) to find any guidance there about how the rounding process is supposed to be done.
The issue of rounding is not inconsequential. Some licensees are structured so that one owner holds less – sometimes barely less – than 50% of the licensee precisely so that that owner does not wield “control” as it is conventionally measured (i.e., 50% or greater voting ownership). If that non-controlling owner happens to own a 49.9% interest, ordinary rounding would take that interest up to 50%, thereby ostensibly reflecting a controlling interest that she or he presumably does not in fact hold. Perhaps the Commission will update its FAQs (and the Form 323 itself) to clarify how it expects licensee to address this problem.