New Form 323 to require multiple FRNs


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FCC Update, Oct 2009

Note: This online version has been updated from the Oct 2009 print version

In May the FCC ordered changes in the ownership reporting procedures for commercial radio and TV stations, expanded the reach of its reporting rules and ordered its Media Bureau to come up with a Form 323 for broadcasters to use beginning as soon as the new ownership reporting form is approved by the Office of Management and Budget (OMB). A copy of the Bureau's proposed form can be found on the on the Fletcher, Heald & Hildreth blog at www.commlawblog.com/2009/08/articles/broadcast/revised-form-323-revealed.

The most striking proposed change — a change not mentioned by the FCC in any of its notices — is that the new Form 323 requires every person or entity holding an attributable interest must have his/her/its own FRN which must in turn be reported in the new form. Those with attributable interests include officers, directors, LLC managers or members, general partners in limited partnerships, 5 percent or greater shareholders and individuals or entities whose interests exceed certain levels under the equity-debt-plus standards.

This means that as early as 30 days after the new form is approved by OMB, a whole new universe of people and entities will have to sign up for their own FRNs, which in turn means they will have to provide the FCC with their social security numbers, employer ID numbers or taxpayer ID numbers — which are required by the CORES system in assigning an FRN. Of course, this assumes that the OMB will approve the new form. It is possible that the new FRN requirement, or other new reporting requirements, could be rejected by the OMB. If this happens the FCC could postpone its universal biennial report filing date for many more months.

If and when the new form is approved, the number of FRNs applied for and issued by the Commission is likely to balloon beyond the agency's processing capabilities. At this point a Form 323 generally requires only a single FRN — the licensee's. If the proposed form is approved, the FCC will suddenly become a repository of a vast trove of sensitive information — SSNs, EINs, TINs for tens of thousands of individuals and other attributable owners. In view of the ever-present and increasing threat of identity theft, one would think that Federal agencies would be reluctant to collect such data. Additionally, reporting entities — licensees and their various officers, directors, stockholders and others — will have to keep track of the multiple FRNs they are required to include in their reports.

Plus, the new form requires all FRN information to be consistent among all reports, i.e., if an individual or entity listed in one report reports a particular FRN, then that same FRN should be used in all other reports in which that individual or entity happens to be listed. The unstated problem here is that, historically, the FCC has not limited FRNs on a one-to-a-customer basis. As a result, any individual or entity might have several different FRNs. In order to achieve the consistency mandated by the new form, respondents will have to take pains to use the correct FRNs, and will have to hope that all other respondents do likewise.

The Commission appears not to have recognized the likely impact of this change. In its defense of its new form, as presented to the OMB, nothing is said about the new requirement to report FRNs for every attributable interest holder. In fact, the FCC summarily concludes that “[t]here is no need for confidentiality with [the revised Form 323]” and the revised form “does not address any private matters of a sensitive nature.”


Dateline

The FCC has indefinitely suspended the previously-announced Nov. 1 deadline for submission of biennial ownership reports for commercial radio stations in all states and territories. Licensees will have a minimum of 30 days to prepare and file their reports once OMB approves the new Form 323.

For noncommercial radio stations in Alabama, Connecticut, Georgia, Massachusetts, Maine, New Hampshire, Vermont and Rhode Island, their biennial ownership report deadline is Dec. 1.

Dec. 1 is the deadline for radio stations in Connecticut, Massachusetts, Maine, New Hampshire, Vermont and Rhode Island to electronically file their Broadcast EEO Mid-Term Reports (Form 397) with the FCC.

Dec. 1 is the deadline for radio stations licensed in the following states to place their annual EEO Reports in their public files: Alabama, Connecticut, Georgia, Massachusetts, Maine, New Hampshire, Vermont and Rhode Island.


Martin is a member of Fletcher, Heald & Hildreth, PLC, Arlington, Virginia. E-mail: martin@fhhlaw.com




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