Can we all agree that responding to the invitation to comment on Form 2100, Schedule 381 would be easier if the form were available for review?

[Update: Form 2100, Schedule 381 has since been made available for review. See our follow-up post, which includes a link to the draft form.]

Like the first sparse snowflakes heralding a major blizzard long predicted but slow to arrive, an announcement in the Federal Register confirms that the spectrum auction is indeed approaching. The public notice invites comment on a new “information collection” – dubbed Form 2100, Schedule 381 – which all full-power and Class A television licensees will have to complete and submit prior to the incentive auction.

The form – formal name: “Certification of TV Broadcast Licensee Technical Information in Advance of Incentive Auction” – will require each licensee to certify that (a) it has reviewed the “technical data on file with the Commission related to its current license authorization” and (b) those data are “correct with respect to actual operations”. Basically, the Commission wants to be sure that the technical profile of the television industry as reflected in the FCC’s database is accurate, since that profile will be used both to identify the facilities to be sold in the reverse auction and to form the starting point for the spectrum repacking effort which is the ultimate goal of the auction. Licensees will also have to provide “basic data” concerning gear currently used by their stations; this information will be used to “facilitate the channel reassignment process following the completion of the incentive auction”.

The fact that the Commission is designing a form along these lines is not surprising – careful readers of the 400+ page behemoth incentive auction Report and Order will doubtless recall footnote 615 (nestled comfortably on page 86), which expressly flagged the FCC’s intent along these lines. But what is surprising is the fact that, while the Federal Register notice asks the public to comment on the proposed “information collection”, the form itself does not appear to be currently available. The Federal Register notice includes no copy of the proposed form, and a request emailed to the Commission has thus far elicited no response.

In other words, at this point it looks like Form 2100, Schedule 381 is the regulatory equivalent of vaporware.

We can understand why the Commission may be eager to get the ball rolling here. It wants to have a solid handle on existing TV spectrum usage in order to finalize the details of the spectrum auction and repack processes. Getting licensee certifications is a reasonable way to confirm the accuracy of the available data. And, because the hilariously-named Paperwork Reduction Act invariably requires at least three-four months from initial notice to OMB rubber-stamp of the form to be used to haul in those certifications, the Commission has got to plan accordingly: OMB approval must be sought early so that, as D-Day for the auction/repack processes approaches, the form can be deployed so as not to slow things down at the last minute. (Deployment of the form is itself likely to involve several months, since licensees will have to be given a reasonable opportunity to complete and file the forms.)

In other words, to get the new form approved by OMB, made available to licensees, completed and filed by licensees, the Commission is probably looking at a six-nine month lead time, maybe more. And the Commission also has to give itself some time to process the forms once they’re filed. All that has to be done before the auction can begin.

So we can all appreciate that the Commission has a legitimate interest in starting — now — to get the form ready to roll.

But what’s frustrating is that the FCC has invited the public to comment on something that appears not yet to exist. That makes no sense. When the Paperwork Reduction Act requires the agency to provide the public with a 60-day opportunity to comment, it must mean that, at the very start of that 60-day period, the public can actually review the item about which comment is sought. Otherwise, the public isn’t really getting the statutorily-mandated 60-day opportunity. (This isn’t the first time the Commission has solicited comments on a non-existent form. Most memorably, it tried the same gambit in 2009, with the Broadcast Ownership Report Form 323, a form whose eventual roll-out was plagued by multiple delays.)

Importantly, a failure to comply with the Paperwork Reduction Act could create the potential for distracting side litigation relative to the validity of the form. Since, presumably, the acquisition of the information to be submitted on the form is an essential element of the auction/repack planning process, it’s surprising that the Commission is taking a chance here.

That’s especially so because the form itself should be relatively simple to prepare. We understand that it’s going to be modeled after the now-retired Form 381 which was used in the run-up to the 2009 DTV transition. While some tweaking will obviously be necessary, at least the Commission has a tried-and-true form to use as a starting point.

In any event, comments on Form 2100, Schedule 381 – at least as it is described in the Federal Register notice – can be submitted to the Commission through February 2, 2015. After that, the Commission will bundle up any and all comments and ship the proposed form and the comments over to the Office of Management and Budget (OMB), as required by the Paperwork Reduction Act. OMB will then provide an additional 30-day comment period. Look for a Media Bureau public notice at some point – possibly before next summer – setting a due date for the submission of the form.

In the meantime, if the draft form itself surfaces, we’ll let you know. Check back here for updates.