By Federal Communications Commission
FCC 12-166
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of)
)
Promoting Diversification of Ownership in the
)
MB Docket No. 07-294
Broadcasting Services
)
SIXTH FURTHER NOTICE OF PROPOSED RULEMAKING
Adopted: December 21, 2012
Released: January 3, 2013
Comment Date: [30 days after date of Publication in the Federal Register]
Reply Comment Date: [45 days after date of Publication in the Federal Register]
Clyburn issuing a separate statement; Commissioner Pai approving in part,
concurring in part and issuing a statement.
I.
INTRODUCTION
1. In this Sixth Further Notice of Proposed Rulemaking, we seek further comment on theCommission's requirement that licensees and other entities filing the FCC Form 323, Ownership Report
for Commercial Broadcast Station, provide an FCC Registration Number (FRN) generated by the
Commission's Registration System (CORES) (CORES FRN) for attributable individuals reported on
Form 323.1 Obtaining a CORES FRN requires users to identify themselves uniquely. This unique
identification is achieved by requiring users to submit their taxpayer identification number (TIN), which
for entities is generally their employer identification number (EIN) and for individuals is generally their
social security number (SSN). As discussed below, unique identification of entities and individuals filing
and being reported on Form 323 is crucial to ensuring the accuracy and reliability of Form 323 data and
the usefulness of those data to the Commission and other researchers.
2. We seek comment herein also on eliminating the interim, "Special Use" FRN alternative to
obtaining a CORES FRN for individuals reported on Form 323. The Commission has long required
licensees and other entities filing Form 323 to obtain and provide a CORES FRN. The revised Form 323,
adopted in 2009 pursuant to the 323 Order and the 323 MO&O in this proceeding, requires filers to obtain
and include a CORES FRN not only for themselves but also for entities and individuals whose
1 See Promoting Diversification of Ownership in the Broadcasting Services, Report and Order and Fourth Further
Notice of Proposed Rulemaking, MB Docket No. 07-294, 24 FCC Rcd 5896, 5908 ¶ 21 (2009) (323 Order and 323
Fourth Further Notice); Promoting Diversification of Ownership in the Broadcasting Services, Memorandum
Opinion & Order and Fifth Further Notice of Proposed Rulemaking, MB Docket No. 07-294, 24 FCC Rcd 13040,
13044 ¶ 8 (2009) (323 MO&O and 323 Fifth Further Notice). Form 323, Section II-B, Question 3(a) requires each
respondent to list the CORES FRNs of all persons and/or entities that hold a direct attributable interest in the
respondent that are also attributable in the licensee. A respondent is any person or entity that is required to file Form
323. Form 323, General Instructions, Definitions. The Form 323 is available on the Commission's Forms website:
http://www.fcc.gov/forms.
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FCC 12-166
attributable interests are reported on the form.2 Two parties sought reconsideration of the requirement toobtain CORES FRNs for individuals holding attributable interests, arguing that the CORES FRN
requirement for individuals is overly burdensome and raises privacy and data security issues and that the
Commission provided inadequate notice of this requirement.3 To address the concerns of the petitioners
and others who raised this issue in comments, the Media Bureau implemented a "Special Use" FRN as an
alternative, temporary measure to obtaining a CORES FRN for individuals holding attributable interests
reported on the form.4 The Special Use FRN allows Form 323 filers to obtain an FRN for use with Form
323 for such individuals without submitting a TIN through CORES.5 As a rule, all filers must provide an
FRN for all persons and entities reported on Form 323. If, after using diligent and good-faith efforts, a
filer is unable to obtain or does not have permission to use an SSN in order to generate an FRN for an
individual holding an attributable interest in the licensee, the filer may use the Special Use FRN. Filers
who use a non-SSN based Special Use FRN will be deemed fully compliant with the Form 323 filing
obligation for purposes of the 323 filing, and the lack of SSN-based FRNs in response to Section II,
Question 3(a) and will not subject Respondents to enforcement action.6 We now seek comment on
eliminating this temporary measure.7 We also seek comment on our proposal to permit filers to use a
Special Use FRN solely in instances where the filer is unable to obtain a CORES FRN from an individual
with reportable interests.8
2 323 MO&O, 24 FCC Rcd at 13044 ¶ 8. See also Promoting Diversification of Ownership in Broadcast Services,
Final Rule; Announcement of Effective Date, MB Docket No. 07-294, 74 Fed. Reg. 56135 & 56136 (Oct. 30, 2009).
3 Koerner & Olender, P.C., Petition for Partial Reconsideration, MB Docket No. 07-294 (Nov. 3, 2009) (Koerner &
Olender Petition); Fletcher, Heald & Hildreth, P.L.C., Petition for Reconsideration, MB Docket No. 07-294 (Nov.
30, 2009) (Fletcher Heald Petition). See also Office of Communication of the United Church of Christ, Inc.,
Opposition to the Petitions for Reconsideration, MB Docket No. 07-294 (Dec. 31, 2009). This Sixth Further Notice
addresses petitioners' concern for adequate notice, while the remaining issues they raise will be resolved in a
subsequent order in this proceeding. See also NAB Sept. 10, 2009 Comments at 3-4; Wiley Rein Sept. 10, 2009
Comments at 2-5.
4 Media Bureau Announces Online Availability of Revised Biennial Form 323, an Instructional Workshop on the
Revised Form, and the Possibility of Obtaining a Special Use FRN for the Form, MB Doc. No. 07-294, Public
Notice, 24 FCC Rcd 14329 (MB, 2009) (Dec. 4, 2009 PN). However, some of the information provided in the Dec.
4, 2009 PN is out of date and has been superseded. For current, up-to-date information on Special Use FRNs please
refer to the Form 323 Frequently Asked Questions, available at http://www.fcc.gov/guides/form-323-frequently-
asked-questions.
5 The Special Use FRN is generated during the filing of Form 323 in CDBS.
6 See http://www.fcc.gov/guides/form-323-frequently-asked-questions#3. We remind individuals who must be
reported on the form that they have the option of obtaining their own FRN directly from the CORES database,
obviating the need to disclose their SSNs to anyone other than the Commission. We encourage individuals to
provide FRNs to filers to alleviate any concerns they may have about disclosing their SSNs to filing entities. In
addition, we remind filers that Special Use FRNs may only be used for Form 323 and may not be used for any other
FCC purpose. Id.
7 The proposal to eliminate Special Use FRNs did not apply to the 2011 biennial filing. Because Special Use FRNs
were available to filers of the 2011 biennial filing to the full extent such FRNs were available to filers in the prior
biennial filing, the relief requested in the Emergency Petition for Immediate Revision of the Instructional
Informational Materials Relative to Form 323, MB Docket No. 07-294, (filed Sept. 14, 2011) is unnecessary and
that petition is therefore dismissed as moot.
8 See ¶ 17, infra.
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FCC 12-166
3. In addition, we seek comment on our proposal to amend the Form 323-E, Ownership Reportfor Noncommercial Educational Broadcast Station, to require filers to report a CORES FRN for
individuals with attributable interests in licensees reported on this form.9 Further, we seek comment on
whether we should extend the CORES FRN requirements, as they apply to entities and individuals, to any
non-attributable interest holders that we might ultimately conclude should be reported on Form 323, as
proposed in the 323 Fifth Further Notice.10 Finally, we seek comment on our proposal to extend the
biennial ownership report filing period11 and on the proposed revisions to Form 323 submitted in
comments in the Review of Media Bureau Data Practices proceeding.12
II.
BACKGROUND
4. It has been a longstanding goal of the Commission to promote diverse ownership of broadcaststations, including ownership by women and minorities. In order to gather accurate and usable data about
these and other ownership categories, the Commission substantially revised its biennial ownership
reporting form in 2009.13 As the Commission previously has stated, the changes to the filing
requirements and the modifications to the form are intended to facilitate long-term comparative studies of
broadcast station ownership.14 In addition, the changes address flaws in the data collection process
identified by the United States Government Accountability Office (GAO) 15 and by researchers who have
attempted to use the data submitted on previous versions of Form 323. In 2008, GAO cited several
shortcomings with the Commission's data collection process: (1) exemptions from the biennial filing
requirement for certain types of broadcast stations; (2) inadequate data quality procedures; and (3)
problems with data storage and retrieval.16 To address GAO's concerns and to improve the quality and
suitability of the data for the Commission's use, the Commission adopted several significant changes.
First, it set a uniform "as of" date of October 1 for the ownership data being reported in the biennial filing
and established a uniform filing deadline for the data of November 1. Thus, all filers must report their
ownership interests as they exist on the "as of" date of the filing year and submit their reports no later
than one month thereafter.17 These uniform dates make it possible to discern statistically valid trends in
9 In the 323 Fourth Further Notice, the Commission sought comment on several proposed changes to Form 323-E:
(1) whether Form 323-E should include data questions regarding gender, race, and ethnicity; (2) whether seeking
this information in the noncommercial educational context is too burdensome; and (3) assuming it is appropriate to
seek this information, whether to apply the revisions made to Form 323 to Form 323-E. 24 FCC Rcd at 5910-11 ¶¶
27-30.
10 323 Fifth Further Notice, 24 FCC Rcd at 13047 ¶ 16. See also ¶ 21, infra.
11 See ¶ 22, infra.
12 See ¶ 23, infra.
13 323 Order, 24 FCC Rcd at 5904 ¶ 13. In addition to the biennial filing of Form 323, licensees are required to file
Form 323 (1) within 30 days of a grant of an application for original construction permit, (2) on the date the
permittee applies for a station license, and (3) within 30 days of the consummation of authorized assignments or
transfers of control of permits and licenses. 47 C.F.R. § 73.3615(b)-(c).
14 323 Order, 24 FCC Rcd at 5902 ¶ 11; 323 MO&O, 24 FCC Rcd at 13044 ¶ 8.
15 "Media Ownership: Economic Factors Influence the Number of Media Outlets in Local Markets, While
Ownership by Minorities and Women Appears Limited and is Difficult to Assess," Report to the Chairman of the
Subcommittee on Telecommunications and the Internet, Energy and Commerce Committee, House of
Representatives, GAO-08-383 (Mar. 2008) (GAO Report).
16 Id. at 4; 323 Order, 24 FCC Rcd at 5901 ¶ 10.
17 47 C.F.R. § 73.3615(a).
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FCC 12-166
minority and female ownership over time, which was not possible using the previous rolling filingprocedures, and ensure timely collection of the data. Second, the Commission also expanded the class of
licensees that must file the report biennially to include sole proprietors and partnerships of natural persons
as well as low-power television and Class A licensees.18
5. Third, the Commission delegated to the Media Bureau authority to (1) revise Form 323's
electronic interface so that the ownership data incorporated into the database are searchable, and can be
aggregated and cross-referenced; (2) build additional checks into Form 323 to perform verification and
review functions; and (3) conduct audits to ensure the accuracy of the Form 323 reports.19 The
Commission also stated that "to further improve the ability of researchers and other users of the data to
cross-reference information and construct complete ownership structures, we will require each
attributable entity above the licensee in the ownership chain to list on Form 323, the [CORES] FRN of the
entity in which it holds an attributable interest."20 This requirement to reference the next layer down in an
ownership chain by using a unique identifier, the FRN, fulfills a need for unmistakable identity in the face
of often complex ownership structures involving numerous parties and multiple layers or links in the
ownership chain, a need which cannot be fulfilled by identification based entirely on names and
addresses.21 In other words, the Commission concluded that without a single, unique identifier,
researchers could not confirm the accuracy of aggregated records. While the Commission believed that
these measures would resolve concerns regarding the usefulness of the data, it nevertheless delegated
authority to the Media Bureau staff to revisit the CORES FRN issue if it determined that additional
changes were necessary.22 In response, the Media Bureau revised and improved the instructions and
questions in all sections of the form in order to (1) clarify the information sought in the form, (2) ensure
that the data are collected in machine-readable formats that can be incorporated in database programs
used to prepare economic and policy studies, and (3) simplify completion of the form by giving
respondents menu-style or checkbox-style options to enter data.23 The Bureau also included built-in edit
checks and pre-fill capabilities to assure greater accuracy and ease of completion.24
6. On August 11, 2009, the Commission submitted the revised Form 323 to the Office of
Management and Budget (OMB) for approval pursuant to the Paperwork Reduction Act (PRA)
requirements and published the Federal Register notice initiating a 60-day comment period.25 Among
other things, the revised form required each filer to include a CORES FRN of entities one step above and
one step below it in the ownership chain and to identify the CORES FRNs of its attributable officers,
18 323 Order, 24 FCC Rcd at 5904-05 ¶¶ 15, 16.
19 Id. at 5903 ¶ 12.
20 Id. The Commission provided the following example: "Licensee A is wholly owned by Corp. B, and Corp. B is
wholly owned by Corp. C. Corp. C is required to include on its Form 323, Corp. B's FRN. Corp. B is required to
include on its Form 323 the Licensee's FRN." Id. at n.60.
21 For instance, there is no way to determine with certainty whether a listing for "John Smith" on one report and a
listing for "J. Smith" on a different report are the same person, absent a unique identifier.
22 323 Order, 24 FCC Rcd at 5908 ¶ 21.
23 323 MO&O, 24 FCC Rcd at 13043-44 ¶ 8.
24 323 Order, 24 FCC Rcd at 5908 ¶ 21.
25 Public Information Collection Requirement Submitted to OMB for Review and Approval, Comments Requested,
MB Doc. No. 07-294, 74 Fed. Reg. 40188 (Aug. 11, 2009).
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FCC 12-166
directors, and shareholders reported on the form.26 Many of the commenters in their comments to OMBobjected to having to report CORES FRNs for individuals holding attributable interests, arguing that in
order to obtain a CORES FRN from these individuals, they would need to provide SSNs to the
Commission, a requirement that they claimed triggers privacy, data security, and identity theft concerns.27
Commenters also suggested that obtaining and reporting CORES FRNs for these individuals would be
onerous and would present a hardship to filers, and that in some cases, filers might be unable to obtain a
CORES FRN for all individual attributable interest holders because the individuals are unwilling to either
obtain the FRN themselves or provide their SSN to the filer for the purpose of obtaining an FRN.28
Additionally, commenters criticized the Commission for failing to seek comment on requiring these
individuals to obtain CORES FRNs prior to including this requirement on the revised form submitted for
OMB approval.29 They also claimed that the decision was inconsistent with the CORES FRN
requirement applicable to wireless licensees, who, they alleged, are not required to provide CORES FRNs
or other similar information for officers, directors, and board members.30 Two Petitions for Writs of
Mandamus were filed with the Court of Appeals for the D.C. Circuit to stay the FCC from implementing
revisions to the form.31 Both were denied.32
7. On October 6, 2009, the Commission submitted a letter to OMB in response to the
comments.33 The FCC's response explained that requiring CORES FRNs on Form 323 is an integral part
of the Commission's effort to "improve the quality, reliability, and usability of the collected data by
26 FCC Form 323 Section II, Item 3(a) requires Respondents to list "each of the officers, directors, stockholders,
non-insulated partners, members and other persons or entities with a direct attributable interest in the Respondent."
See also, 323 MO&O, 24 FCC Rcd at 13043 ¶ 8 (noting that the Media Bureau is requiring a licensee "to report the
FRNs of entities one step above and one step below it in the ownership chain" and to "identify the FRNs of its
attributable officers, directors, and shareholders").
27 Saga Sept. 10, 2009 Comments at 4; State Associations Sept. 10, 2009 Comments at 7-10; Letter from Joseph
DiScipio, Esq. et al. Counsel for Various Broadcaster Clients and Associations, to Marlene H. Dortch, Secretary,
FCC (Nov. 6, 2009) (ex parte notification of meeting with FCC staff to discuss FRN requirement) (DiScipio, et al.
Nov. 6 Ex Parte Letter); Fletcher Heald Petition at 17. Copies of comments filed with OMB are available on the
OMB website at http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=200908-3060-001.
28 State Associations Sept. 10, 2009 Comments at 9-12 (arguing, in part, that the FRN requirement will deter
investment in broadcasting); NAB Sept. 10, 2009 Comments at 7-11; Joint Comments of ABC, et al. (Sept. 10,
2009) at 13 nn. 30-31, 21 (expressing concern that some individuals with reportable interests may be unwilling to
obtain FRNs, or provide their SSN to Form 323 filers so that they can obtain an FRN for these individuals).
29 See NAB Sept. 10, 2009 Comments at 4; Wiley Rein Sept. 10, 2009 Comments at 2; Fletcher Heald Petition at 15.
30 Letter from Antoinette Cook Bush, Counsel for Fox Television Stations, Inc., to Marlene H. Dortch, Secretary,
FCC at 1 (Nov. 9, 2009) (ex parte notification of phone call with FCC staff to discuss FRN requirement). As
explained below, the CORES FRN requirements for Form 323 are consistent with Commission precedent in the
wireless services context. See infra ¶ 13 n.57.
31 The law firm of Fletcher, Heald & Hildreth, PLC, on behalf of itself and various state broadcaster association
clients, filed the first Petition on December 23, 2009 (Doc. No. 09-1321) and the second Petition on May 28, 2010
(Doc. No. 10-1117).
32 Fletcher, Heald & Hildreth, P.L.C., et al., Doc. No. 09-1321 (D.C. Cir. 2010) (per curiam) (denied Mar. 4, 2010);
Fletcher, Heald & Hildreth, P.L.C., et al., Doc. No. 10-1117 (D.C. Cir. 2010) (per curiam) (denied July 7, 2010).
33 Letter from Walter Boswell, Acting Assoc. Managing Director, PERM, OMD, FCC, to Nicholas A. Fraser, OMB
(Oct. 6, 2009) (Reply Letter).
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eliminating inconsistencies and inadequacies in the data submitted."34 The Reply Letter identified theCORES FRN as a key tool for ensuring that the ownership data is matched with specific owners.35 Also,
without the CORES FRNs, the Commission explained that it would be unable to accurately determine the
identity of a person when variations of a single name or other spelling irregularities appear from form to
form.36 The Reply Letter also noted that the FRN has been used as a unique identifier for reports that
collect data on individuals and entities that hold attributable interests in wireless services and concluded
that requiring filers to provide a CORES FRN for individual attributable interest holders on the Form 323
"will allow the Commission to harmonize its processes between different licensing divisions and directly
improve the quality and usefulness of the collected data . . . ."37 The Reply Letter rejected allegations that
the Commission failed to comply with the notice requirements of the PRA.38 After the Commission
submitted the revised form to OMB, the Commission issued a further order, the 323 MO&O, and
explained that each filer was required to identify the CORES FRNs of its attributable officers, directors,
and shareholders, explaining "[i]n the process of modifying Form 323 on delegated authority, the Bureau
determined that it was necessary to expand the class of [CORES] FRNs to be included to ensure the
usefulness of the data."39
8. On October 19, 2009, OMB approved the revised Form 323, including the requirement that
filers identify the CORES FRN for individuals holding an attributable interest in the licensee.40 After
several delayed filing deadlines,41 the Commission set July 8, 2010, as the first biennial filing deadline
using the revised form.42 Generally, the Bureau's experience during the filing process was that most filers
34 Id. at 3-4.
35 Id. at 5.
36 Id., see also n.21, supra.
37 Id. at 6-7, see also ¶13, n.57, infra.
38 Reply Letter at 2-3.
39 323 MO&O, 24 FCC Rcd at 13043 ¶ 8 n.20. The Commission also eliminated the requirements adopted in the
323 Order that two types of non-attributable interests be reported on the Form 323 and submitted a revised Form
323 to OMB reflecting this deletion. Letter from Walter Boswell, Acting Assoc. Managing Director, PERM, OMD,
FCC, to Nicholas A. Fraser, OMB, at 2 (Oct. 16, 2009) (explaining that the 323 MO&O deleted the requirements
that certain non-attributable interests, that is, voting stock interests that would be attributable but for the single
majority shareholder attribution exemption and equity and/or debt interests that would be attributable but for the
exemption for certain investments in eligible entities, be reported on Form 323). These requirements, however, are
the subject of the pending 323 Fifth Further Notice.
40 See Notice of Office of Management and Budget Action, Oct. 19, 2009,
http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=200908-3060-001#; see also Federal Register notices
announcing OMB approval and effective date of revised Form 323, 74 Fed. Reg. 56,135 (Oct. 30, 2009); 74 Fed.
Reg. 56,136 (Oct. 30, 2009).
41 Media Bureau Extends the Biennial Filing Deadline for the Commercial Broadcast Ownership Report (Form
323), MB Docket No. 07-294, Public Notice, 24 FCC Rcd 14055 (MB, 2009) (announcing the Media Bureau's
extension of the Form 323 filing until January 11, 2010 in order to allow for additional testing of the electronic
version of the form); Promoting Diversification in the Broadcast Services, MB Docket No. 07-294, Order, 24 FCC
Rcd 14628 (MB, 2009) (suspending the January 11, 2010 filing date to permit staff to investigate technical problems
with entering data electronically and announcing that the new filing date will be at least 90 days from the date that
the form is made available for biennial filings).
42 Media Bureau Announces Revised Form 323 will be Available Online on April 9, 2010, and Sets New Filing
Deadline of July 8, 2010, MB Docket No. 07-294, Public Notice, 25 FCC Rcd 3595 (MB, 2010).
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complied with the CORES FRN requirement. Nevertheless, in response to industry concerns about filers'ability to obtain FRNs from all individuals holding attributable interests due to individuals' concerns
about privacy, security, and identify theft, the Bureau allowed filers, as an interim measure, to obtain a
Special Use FRN for individuals reported on the form in lieu of obtaining a CORES FRN.43 Individuals
do not need to provide an SSN in order to generate the Special Use FRN.
9. In December 2010, the Commission initiated a rulemaking proceeding in which it proposes to
update CORES in an effort to enhance the Commission's data collection efforts and to improve customer
interface with CORES. In the Notice of Proposed Rulemaking, the Commission noted that, "[s]ince the
creation of CORES, entities have been able to obtain multiple FRNs in order to permit different members
of their corporate family to obtain their own individual FRNs, regardless of whether those entities have
different taxpayer identification numbers . . ."44 The Commission stated that it has had difficulty using
CORES to identify all FRNs held by the same entity when entities have not provided TINs or have
provided inconsistent TINs. It also observed that some filers erroneously invoked exceptions to the
general requirement to provide a TIN and that these entities or individuals also would be difficult to track.
The Commission has proposed several options to resolve these issues.45 In addition, the Commission has
asked whether it should expand the availability of "special use" FRNs for purposes other than the filing of
Form 323.46
10. In July 2011, the Court of Appeals for the Third Circuit, as part of its review of the
Commission's media ownership rules, vacated and remanded certain aspects of the Diversity Order.47
The court concluded that the Commission's decision to adopt a revenue-based eligible entity definition to
facilitate ownership diversity was arbitrary and capricious because the Commission did not show how
such a definition specifically would assist minorities and women, who were among the intended
beneficiaries of this action.48 The court also remanded each of the measures adopted in the Diversity
Order that relied on the revenue-based definition.49 The court found that the eligible entity definition was
not supported by "data attempting to show a connection between the definition chosen and the goal of the
measures adopted - increasing ownership of minorities and women,"50 stressing that regulations seeking
to increase female and minority ownership must be based upon reliable data. The court stated, "At a
minimum, in adopting or modifying its rules the FCC must 'examine the relevant data and articulate a
satisfactory explanation for its action[,] including a rational connection between the facts found and the
choice made.'"51 The court also made plain that "[i]f the Commission requires more and better data . . . it
43 Dec. 4, 2009 PN at 1-2; see also, DiScipio, et al. Nov. 6 Ex Parte Letter. Form 323 filers obtain Special Use
FRNs through the Commission's broadcast licensing database while filling out Form 323, and not through CORES.
Currently, Special Use FRNs are available for filers of both biennial and non-biennial ownership reports.
44 Amendment of Part 1 of the Commission's Rules, Concerning Practice and Procedure, Amendment of CORES
Registration System, MD Docket No. 10-234, 25 FCC Rcd 17407, 17411 ¶ 13 (2010) (CORES NPRM).
45 Id. at 17411-12 ¶¶ 13-15.
46 Id. at 17419-20 ¶¶ 38-39.
47 Promoting Diversification of Ownership in the Broadcasting Services, MB Docket No. 07-294, Report and Order
and Third Further Notice of Proposed Rulemaking, 23 FCC Rcd 5922 (2008) (Diversity Order).
48 See Prometheus Radio Project v. FCC, 652 F.3d 431, 469-72 (3d Cir. 2011) (Prometheus II).
49 Id. at 471-73.
50 Id. at 471.
51 Id. at 469.
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must get the data."52 The court stated that the actions taken in the Order and Fourth Further Notice toreliably analyze minority and female ownership "will, however, lay necessary groundwork for the
Commission's actions on remand."53
III.
DISCUSSION
11. By this Further Notice, we seek to supplement the record regarding the use of CORES FRNs.First, we tentatively affirm the Commission's prior determination that the use of CORES FRNs as unique
identifiers is necessary in order to improve the quality of the data collected on Form 323, and we propose
to discontinue the Special Use FRN for Form 323. We propose to require all individual attributable
interest holders to obtain a CORES FRN and to require all Form 323 filers to provide the CORES FRN
for these individuals. Second, we seek comment on whether we should require the individual and entities
holding non-attributable interests that would be reportable on the Form 323 under the proposal set forth in
the 323 Fifth Further Notice to obtain a CORES FRN and require all Form 323 filers to report these
CORES FRNs.54 Third, we seek comment on revising Form 323-E to include the same CORES FRN and
attributable interest reporting obligations as those applicable to Form 323. Finally, we seek comment on
proposed revisions to the Form 323 submitted in comments in the Review of Media Bureau Data
Practices proceeding.
12. Elimination of Special Use FRN for Form 323. Special Use FRNs do not afford the
Commission a reliable means of tracing a reported interest holder to a unique individual and their use
therefore undermines the purpose of our data collection effort, which seeks to accurately ascertain the
nature and extent of minority and female ownership of broadcast properties.55 Without the ability to track
an FRN to a unique individual, it may be difficult, if not impossible, to accurately cross-reference
broadcast ownership interests. The Third Circuit has highlighted the importance of collecting reliable
data to support the Commission's rulemaking initiatives. We seek comment on the use of the CORES
FRN as a means of associating non-unique information (names, addresses, race, gender, and ethnicity)
with a unique identifier for data quality, searchability, cross-referencing, and aggregation purposes solely
for use with FCC Form 323 as a means of identifying attributable interests. How effective, relatively
speaking, is the CORES FRN as a unique identifier for the Commission's purposes? If no unique
numeric or other identifier is associated with an ownership record, how can researchers and other
members of the public adequately verify and/or make use of the collected data? How can complete
ownership structures be compiled reliably? What alternatives are there to the use of the CORES FRN as a
unique identifier? We invite comment on other measures the Commission could use as a unique identifier
in lieu of the CORES FRN and its underlying TIN basis.
13. We tentatively affirm the Commission's prior determination that the use of CORES FRNs as
unique identifiers is necessary in order to improve the quality of the data collected on Form 323, and we
propose to eliminate the availability of Special Use FRNs and require the universal use of CORES FRNs
52 Id at n.42.
53 Id.at 471.
54 In the Fifth Further Notice, the Commission sought comment on whether to collect information from holders of
equity interests in a licensee that would be attributable but for the single majority shareholder exemption and from
holders of interests that would be attributable but for the higher EDP thresholds adopted in the Diversity Order for
purposes of determining attribution of certain interests in eligible entities. 24 FCC Rcd at 13047 ¶ 16.
55 While multiple CORES and Special Use FRNs can be obtained under our existing practice, CORES has the ability
to identify all the FRNs that are held by the same entity or individual when TINs are accurately provided and filers
do not circumvent the TIN requirement. See ¶ 15, infra.
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for all biennial and non-biennial Form 323s. We tentatively conclude that such unique identification isessential to providing the kind of searchable and manipulable database needed to support accurate and
reliable studies of ownership trends. We also tentatively conclude that the reporting of CORES FRNs on
Form 323 that are obtained after supplying the Commission with a TIN is superior to reporting the
Special Use FRNs now permitted for individuals. We seek comment on these tentative conclusions, and
particularly encourage those who may have used the dataset created from the first set of Form 323
biennial filings that were required to include FRNs for attributable entities and individuals to address
these issues.56 Furthermore, the use of CORES FRNs is consistent with Commission precedent in the
wireless services context, as applicable to attributable interest holders. 57 We seek comment on any
justifications to treat broadcasters differently with respect to CORES FRN requirements.
14. We note that other government agencies also use SSNs when necessary to ensure program
integrity and for statistical and research purposes. For example, the Census Bureau uses SSNs reported
on income tax returns in order to prepare annual population estimates for states and counties to determine
immigration rates between localities.58 The Department of Agriculture has statutory authority to collect
the SSNs of both food stamp recipients and officers and owners of retail and wholesale food concerns that
accept and redeem food stamps.59 The Small Business Administration (SBA) requires that applicants for
SBA-backed loans provide their past business and personal income tax returns, which contain their
56 Media Bureau Announces Availability of 2009 Biennial Ownership Data Set for Commercial Broadcast
Licensees, MB Doc. No. 07-294, Public Notice, 26 FCC Rcd 2024 (MB, 2011).
57 Specifically, the Commission uses CORES FRNs as unique identifiers in ownership reports collecting data about
persons (including individuals) and entities that hold attributable interests in wireless communications licenses (such
as cellular phones and other wireless services). See Biennial Regulatory Review - Amendment of Parts 0, 1, 13, 22,
24, 26, 27, 80, 87, 90, 95, 97, and 101 of the Commission's Rules to Facilitate the Development and Use of the
Universal Licensing System in the Wireless Telecommunications Services, Memorandum Opinion and Order on
Reconsideration, 14 FCC Rcd 11476 (1999) ("ULS Order"). We note that at the time the Commission adopted
CORES FRN reporting requirements on Form 602 for reporting wireless service ownership interests (including
interests held by individual persons), some commenters argued that the use of CORES FRNs in this manner
exceeded the scope of the definition of what constitutes "doing business" with the FCC. Commenters in the wireless
proceeding argued that owners who do not have actual control over the licensee are not "doing business" with the
Commission and therefore should not be subject to the CORES FRN reporting requirement. The Commission
disagreed, noting that "we do not consider the presence or absence of control to be the only consideration in whether
a person or entity is 'doing business' before the Commission." The Commission reasoned that CORES FRN
reporting was justified for all attributable interest holders on Form 602 because persons or entities with attributable
interests "have a significant stake in the venture and reap significant benefits from the award of the license," and
because "[the CORES FRN requirement] is directly relevant to the qualifications of the applicant for a wide variety
of purposes, including spectrum cap and cross-ownership rules, eligibility for small business status, and foreign
ownership." Id., 14 FCC Rcd at 11488 ¶ 29. In this proceeding, we are not revisiting this issue.
58 J. McNabb, D. Timmons, J. Song, & C. Puckett, Uses of Administrative Data at the Social Security
Administration, 69.1, Social Security Bulletin (2009) available at
http://www.ssa.gov/policy/docs/ssb/v69n1/v69n1p75.html. The Census Bureau does not collect SSNs from
individuals directly. The Census Bureau informs survey respondents that it will cross-reference information with
other federal databases and, unless a respondent opts out, it then combines SSN information with address records
from the Internal Revenue Service, Social Security Administration (SSA) and other sources to determine a
respondent's correct SSN. Linking survey responses to SSA data, including SSNs, yields more accurate underlying
data and improves the statistical estimates of the Bureau's Current Population Survey and the Survey of Income and
Program Participation. Id.
59 See 42 U.S.C. § 405 (c).
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SSNs.60 The Department of Housing and Urban Development (HUD) requires SSNs as a condition ofeligibility for participation in HUD programs involving loans, grants and other assistance.61 The Veterans
Administration requires individuals to provide their SSNs to be eligible for compensation or pension
benefits programs.62 The Treasury collects the SSNs of all savings bond purchasers.63 The Department of
Labor requires all workers compensation claimants to provide an SSN.64 The Department of Homeland
Security uses SSNs in its E-Verify database as the basis for its employment verification system.65 Health
and Human Services collects SSNs to verify citizenship status.66 Agencies also collect and share SSNs
for purposes of collecting debts owed to the government,67 as well as using employees' SSNs for
activities such as payroll, wage reporting, and providing employee benefits.68 We seek comment on the
use of SSNs as unique identifiers by other governmental agencies as it relates to the Commission's
proposed CORES FRN requirement for individuals.
15. Although we are seeking comment in our separate CORES proceeding on measures to
improve the CORES FRN system and the possible expansion of special use FRNs,69 we tentatively
conclude that it is not necessary to await the outcome of that proceeding to improve further the Form 323
data collection process by discontinuing the Special Use FRN for Form 323. Unlike many of our filing
obligations, the fundamental objective of the biennial Form 323 filing requirement is to track trends in
media ownership by individuals with particular racial, ethnic, and gender characteristics. In this context,
it is especially critical to ensure that we can identify uniquely each individual reported on the form. As
noted above, the Commission cannot ensure that each individual is assigned only one Special Use FRN
and that it is used consistently throughout the Form 323 reporting process because no unique identifier is
available to track the Special Use FRN back to a single individual. For instance, CDBS does not have
any mechanism to prevent a filer from obtaining multiple Special Use FRNs for the same individual. In
contrast, even though multiple CORES FRNs can be obtained by the same individual or entity, the SSN
or TIN underlying these FRNs generally permits the Commission to identify the specific person or entity
60 See Small Business Administration's Application for Business Loan form, available at
http://www.sba.gov/sites/default/files/SBA%20FORM%204_0.pdf (requiring applicants to provide their SSNs).
61 See 42 U.S.C. § 3543(a).
62 See 38 U.S.C. § 5101(c)
63 See http://www.treasurydirect.gov/indiv/research/faq/maskingfaqs.htm#SSAN.
64 See 42 U.S.C. § 405(c)(2)(C)(ix) (providing that "the Secretary of Labor may require by regulation that any
person filing a notice of injury or a claim for benefits under such provisions provide as part of such notice or claim
such person's social security account number, subject to the requirements of this clause").
65 Department of Homeland Security, Fact Sheet: DHS Launches E-Verify Self Check" (March 21, 2011) available
at http://www.dhs.gov/news/2011/03/21/fact-sheet-dhs-launches-e-verify-self-check
66 See 42 U.S.C. § 18081(b)(2).
67 See e.g. 31 U.S.C. § 7701(c) (the Debt Collection Improvement Act of 1996 requires each person doing business
with a federal agency to provide a taxpayer identification number).
68See 26 U.S.C. § 6109 (authorizing the Internal Revenue Service to require taxpayers to include SSNs on tax
returns).
69 See, e.g., CORES NPRM, 25 FCC Rcd at 17412, 17420 ¶¶ 15, 39. We note that no commenters in response to the
CORES NPRM specifically discussed the proposal to expand the use of Special Use FRNs. AARL, however, does
support allowing Amateur Radio clubs to continue to register for FRNs without providing a TIN when applying for
Amateur Service licenses only because such clubs do not have TINs. ARRL Comments, MD Docket No. 10-234 at
9-10.
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using any such FRNs in a Commission report or form. Because CORES FRNs are backed by a TINwhereas Special Use FRNs are not backed by any unique identifier, the CORES FRN offers a superior
means of sorting and aggregating Form 323 data. We seek comment on these views.
16. We also seek comment on the costs and benefits of eliminating the Special Use FRN for
Form 323. Commenters objecting to the CORES FRN requirement for individuals with attributable
interests that are reported on the form argue that the requirement would be burdensome.70 In the Reply
Letter, the Commission disagreed that the process is as onerous as commenters describe. Filers must only
register one time to obtain a CORES FRN, which can be used for current and all future Form 323 filings
and other Commission filings. The CORES database registration process takes only a few moments to
complete and users easily can obtain previously-registered CORES FRNs using the search tool in
CORES.71 Moreover, in addition to not being a burdensome requirement, the CORES FRN is an essential
part of the Commission's effort to improve the reliability, quality, and usability of the data collected, as
the Commission as noted in identifying the CORES FRN as a key tool for ensuring that ownership data
are matched with specific owners.72 Is the requirement to obtain a CORES FRN for individual
attributable interest holders onerous on small businesses? On large corporations? On individuals? A
small number of commercial broadcast licenses are held by governmental entities, tribal organizations,
and not-for-profit groups. Is compliance with the CORES FRN requirement more burdensome for these
entities? What factors contribute to any difficulties businesses may have in complying with the CORES
FRN requirement? On balance, we believe the benefits of the proposed revisions will outweigh any costs.
We seek comment on this analysis. Commenters should describe the benefits and any costs associated
with eliminating the Special Use FRN or with any alternative proposal, explain any underlying
assumptions, submit all relevant data and, if possible, quantify the potential effects.
17. We also seek comment on whether we should continue to allow filers to obtain a Special Use
FRN solely in instances where, after reasonable and good faith efforts, they are unable to obtain a CORES
FRN from an individual with reportable interests. We expect that filers will either obtain a CORES FRN
for such individuals after obtaining the individuals' SSNs in order to do so, or, if the individuals are
reluctant to disclose their SSNs to the filer, to instruct such individuals how to obtain a CORES FRN on
their own. As we have noted before, this latter approach would avoid the need for individuals to disclose
their SSNs to any party other than the Commission. In the event that an individual is unwilling to provide
the filer with sufficient information for it to obtain a CORES FRN and is unwilling to obtain and provide
a CORES FRN separately, we wish to ensure that a filer will still be able to timely file a Form 323 and to
report the recalcitrant attributable interest holder. To permit this and to identify individuals who have
failed to provide the required FRN, we seek comment on whether we should reserve the use of special use
FRNs solely for those cases in which an individual with a reportable interest has failed to provide a
responsible filer with a valid CORES FRN or to provide the filer with the means of obtaining one. We
note that in such instances, the Commission can use its enforcement authority to impose a forfeiture
70 Wiley Rein Sept. 10, 2009 Comments at 10-11 (noting that licensees must explain the CORES FRN requirement
and process to each attributable interest holder and ensure that the CORES FRN is properly shared with other
entities in which the interest holder has a reportable attributable interest); State Associations Sept. 10, 2009
Comments at 10-11 (arguing that broadcasters will have difficulty tracking CORES FRNs and associated
passwords); ABC Sept 10, 2009 Joint Comments at 21 (suggesting that not all individuals required to obtain a
CORES FRN will do so); Saga Sept. 10, 2009 Comments at 5 (stating that it is time consuming for licensees to
ensure that CORES FRN are consistently reported in all filings).
71 Reply Letter at 10-11.
72 Id. at 3-4, 5.
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against such individuals.73 In this connection, we also seek comment on whether we should require filersto notify individuals with reportable interests of the Commission's enforcement authority in such
instances.
18. We also invite comment on any privacy concerns the CORES FRN requirement may raise as
it relates to Form 323 and the identification of attributable interests.74 CORES FRNs are intended to
provide a unique identification system for entities and individuals that does not require the disclosure of a
TIN or SSN on Commission applications and forms.75 TIN data are needed only to obtain a CORES FRN
in the first instance and those data are secured by the Commission and not used publicly. Does this
requirement raise any potential adverse consequences? We invite comment in particular on the
applicability of the Privacy Act76 to the CORES FRN requirement. The Commission does not consider
sole proprietors and officers and directors to be persons who are subject to the Privacy Act of 1974, as
amended, since they are acting in an entrepreneurial capacity.77 In addition, the Commission already has
adopted Privacy Act Systems of Records for the CORES system and for the Form 323 requirement, which
apply to any personally identifiable information required by the Form 323 and by CORES in connection
with the FRN registration process.78 We tentatively conclude that the Privacy Act does not bar our
adoption of the CORES FRN proposals discussed in this Further Notice. To the extent commenters
believe the requirement presents a risk of any adverse consequences affecting individuals' privacy, what
is the degree of risk involved and is it outweighed by the benefits of obtaining more accurate and
verifiable ownership data?
19. We also invite comment as to whether it is necessary to clarify that any individual with
reportable interests must obtain an FRN. Currently, our rules do not explicitly require these individuals to
obtain an FRN. Rather, the Form 323 requires licensees and other respondents to report the FRN of
individuals holding attributable interests.79 A requirement for individuals with reportable interests to
obtain FRNs would address concerns that filers may be unable to obtain FRNs from unwilling individual
attributable interest holders. In this regard, we seek comment on Petitioner Koerner & Olender's request
to "redefine or reinterpret" section 1.8002 of our rules, which establishes the Commission's generic FRN
73 47 U.S.C. § 503(b).
74 See Fletcher Heald Petition at 17; Koerner & Olender Petition at 3.
75 See Office of the Managing Director Implements the FCC Registration Number (FRN) and Commission
Registration System (CORES) Registration Process Effective March 27, 2000, DA 00-407, Public Notice, 15 FCC
Rcd 16427 (2000)., DA 00-407, Public Notice, 15 FCC Rcd 16427 (2000). As previously discussed, an FRN, which
is a unique identifier used in lieu of a TIN, is generated when a user submits a TIN to CORES. The Commission has
expanded the use of FRNs for many of its public filings. Form 323 does not collect TINs. The expanded use of
FRNs, instead of TINs, comport with a government-wide effort to safeguard personally identifiable information by
reducing the unnecessary use of SSNs and exploring alternatives to serve as personal identifiers for Federal
programs. CORES NPRM, 25 FCC Rcd at 17410 ¶ 9 (citing, e.g. Safeguarding Against and Responding to the
Breach of Personally Identifiable Information, OMB Memorandum M-07-16 (May 22, 2007)).
76 5 U.S.C. § 552(a).
77 Reply Letter at 7.
78 See FCC/MB-1, Privacy Act System of Records, 74 Fed. Reg. 59978 (Nov. 18, 2009); FCC/OMB-9, Privacy Act
System of Records, 77 Fed. Reg. 17234 (Apr. 5, 2006) , available at http://transition.fcc.gov/omd/privacyact/records-
systems.html.
79 Form 323, Instructions for Question 3(a).
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requirement, to include within the scope of the rule the holders of interests reportable on Form 323.80Section 1.8002 states that persons "doing business" with the Commission must obtain an FRN and lists
examples of the types of activities or interests that trigger the requirement. It does not state that the listed
categories are the only circumstances under which an entity or individual must obtain an FRN. In the
wireless context, the Commission has determined that individuals holding attributable interests in wireless
licensees are "doing business with" the Commission and that wireless licensees must provide the FRNs
for such individuals on the Form 602, FCC Ownership Disclosure Information for the Wireless
Telecommunications Services.81 Should we amend section 1.8002 to explicitly include any interests of
individuals or entities that are reportable on Form 323, either because the holders of these interests are
deemed to be "doing business" with the Commission or because the Commission has, for other reasons,
determined that these interest-holders should obtain an FRN? We seek comment on these matters,
including comments on the costs and benefits of any rule amendment. 82
20. Requiring CORES FRNs for additional reportable interests. In the 323 Fifth Further Notice,
we are concurrently seeking comment on whether to expand the biennial ownership reporting requirement
to include interests, entities and individuals that are not attributable because of (a) the single majority
shareholder exemption and (b) the exemption for interests held in eligible entities pursuant to the higher
EDP threshold.83 We propose herein that if the Commission requires these interest holders to be reported
on the biennial ownership form, they should be required to obtain and provide CORES FRNs. We seek
comment on what impact such a requirement would have on these interest holders and whether the
benefits of unique identification described above are equally applicable to individuals subject to such a
requirement. Would a CORES FRN requirement for these interest holders present different burdens for
small businesses, other types of firms, or individuals?84 Would this requirement present privacy
concerns?85 As requested above, commenters should address in detail the costs and benefits of expanding
the existing FRN requirements to the additional interests at issue in the 323 Fifth Further Notice.
21. Reporting FRNs on Form 323-E. We also seek comment on our proposal to require that
CORES FRNs be provided for all entities and individuals reported on Form 323-E, Ownership Report for
Noncommercial Broadcast Stations. In the 323 Fourth Further Notice, the Commission sought comment
on whether to modify the Form 323-E to include gender, race, or ethnicity data questions, similar to the
revisions adopted in the 323 Order in order to further the Commission's goal of advancing diversity of
ownership in the broadcast industry.86 NPR objects to extending the CORES FRN requirement to Form
323-E, contending that it raises "unique privacy issues and administrative burdens" for the
80 Koerner & Olender Petition for Reconsideration at 2, 5; 47 C.F.R. §1.8002 (requesting the Commission to
reconsider the requirement for individuals to obtain and report FRNs or, alternatively to issue a notice of proposed
rulemaking to "redefine or reinterpret" section 1.8002).
81 See ULS Order, supra, 14 FCC Rcd at 11488 ¶ 29.
82 Commenters should address costs and benefits in detail, as requested above. See¶ 16, supra.
83 323 Fifth Further Notice, 24 FCC Rcd at 13047 ¶ 16; see also n.54, supra. The comment cycles for the 323 Fifth
and Sixth Further Notices will run concurrently. We encourage parties to combine their comments in the event they
address issues raised in both Notices.
84 See ¶ 16, supra.
85 See ¶ 18, supra.
86 323 Fourth Further Notice, 24 FCC Rcd at 5910-11 ¶¶ 27-30.
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noncommercial sector. 87 In comments submitted in response to the 323 Fourth Further Notice, NPRstates that in many instances the governing board members are elected officials, or political appointees,
who are volunteers that are not compensated for their services. Therefore, NPR argues that none of these
board members would hold any equity interest in the station and would not provide meaningful
"ownership" information to the Commission.88 We seek comment on this view. Are there unique
attributes of noncommercial broadcasters, or of the ownership structure of noncommercial entities, that
would make the application of an FRN requirement for their officers and directors particularly
burdensome? Generally, we seek comment on the benefits, potential costs or other effects, and possible
alternatives to imposing the same CORES FRN requirements on Form 323-E filers and holders of
reportable interests as those applicable to Form 323 filers and attributable interest holders. Are there
other advantages or drawbacks to applying these requirements to the Form 323-E? If the Commission
elects not to include a CORES FRN requirement for individuals with attributable interests reported on
Form 323-E, how can it ensure the accuracy of the data submitted? What alternatives to the CORES
FRN, if any, are available that could provide sufficient data verification? We invite comment on these
issues. Commenters should describe the benefits and costs of applying the existing FRN requirements to
the Form 323-E or any alternative proposal, explain any underlying assumptions, submit all relevant data
and, if possible, quantify the potential effects.
22. Due date for Biennial Ownership Reports. Currently, 47 C.F.R. Section 73.3615(a) requires
biennial reports to be filed by November 1 of odd-numbered years and states that each report must be
accurate as of October 1 of the year in which it is filed.89 In order to provide parties with additional time
to complete and submit their reports, we propose to move the due date from November 1 to December 1,
with the October 1 "as of" date unchanged. We believe that providing filers with an additional 30 days to
produce the Form 323 report will lead to more accurate reporting, and will not significantly delay the
collection of data. We seek comment on this proposal.
23. Proposals submitted in the Review of Media Bureau Data Practices proceeding. We also are
seeking comment on proposals regarding the Form 323 that were submitted in the Review of Media
Bureau Data Practices proceeding, which was initiated "to improve the way the Commission collects,
uses and disseminates data."90 In that proceeding, the Bureau encouraged commenters to provide
recommendations regarding: (1) the use and rationale of its existing data collections, (2) additional data
that should be collected, (3) how it can improve the collection and analysis process for its existing
collections, and (4) how it may improve the dissemination of its reports and analyses.91 Based on its
experiences completing the revised Form 323, NAB suggests that the Commission modify the electronic
version of Form 323 to allow for cross-referencing to information on other reports.92 Second, NAB
suggests that an entity with several wholly-owned licensee subsidiaries should be able to list all of the
licensees (and their respective stations) in Section I, Item 7. 93 We seek comment on this proposal and ask
87 Letter from Julie M. Kearney, Esq. Counsel for National Public Radio, et al., to Marlene H. Dortch, Secretary,
FCC at 1 (Nov. 19, 2009).
88 NPR Reply Comments at 3-4.
89 47 C.F.R. § 73.3615(a).
90 Pleading Cycle Established for Comments on Review of Media Bureau Data Practices, Public Notice, MB Doc.
No. 10-103, 25 FCC Rcd 8236, at 1 (MB, 2010).
91 Id. at 1-2. The comment period closed on September 13, 2010.
92 NAB Reply Comments, MB Doc. No. 10-103 at 6-7.
93 Id. at 6.
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whether it should be limited to wholly-owned subsidiary licensees or whether a parent entity insteadshould be able to list all the licensees in which it has an attributable interest (and their respective stations)
in Section I, Item 7. We believe that such a change will significantly reduce the filing burdens on some
entities, without compromising the data collected. NAB also proposes that the Bureau consider
eliminating Section II-B, Item 3(c) as duplicative.94 NAB further suggests that the Commission modify
the instructions to Form 323 to eliminate inconsistent information, such as the instructions for Section II-
B, Items 1, 3(a), and 3(c).95 MMTC recommends simplifying the public display of Form 323 filings;
requiring only one Form 323 filing per station with all the racial/ethnic/gender ownership of the
attributable interest holders; creating a separate filing category for transfers to bankruptcy trustees,
debtors-in-possession or trusts; and changing from a biennial filing to an annual filing requirement.96
Accordingly, we seek comment on these proposals regarding Form 323, including the costs and benefits
of these proposals.
IV.
PROCEDURAL MATTERS
A.
Filing Requirements
24. Ex Parte Rules. The proceeding this Notice initiates shall be treated as a "permit-but-disclose" proceeding in accordance with the Commission's ex parte rules.97 Persons making ex parte
presentations must file a copy of any written presentation or a memorandum summarizing any oral
presentation within two business days after the presentation (unless a different deadline applicable to the
Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda
summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting
at which the ex parte presentation was made, and (2) summarize all data presented and arguments made
during the presentation. If the presentation consisted in whole or in part of the presentation of data or
arguments already reflected in the presenter's written comments, memoranda or other filings in the
proceeding, the presenter may provide citations to such data or arguments in his or her prior comments,
memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or
94 Id. at 7. Section II-B, Question 3(c) asks whether the "[r]espondent or any other person/entity with an
attributable interest in the Respondent also hold an attributable interest in any other broadcast station, or in any
newspaper entities in the same market, as defined in 47 C.F.R. § 73.3555."
95 Id. at 7-8. Specifically, NAB states that language in the last paragraph of the form instructions for Section II-B,
Question 1 is contradictory when applied to non-licensee respondents that have majority interest in or de facto
control of a licensee. The paragraph at issue provides that "[o]nly Licensees and entities with a majority interest in
or that otherwise exercise de facto control over a Licensee must respond to this question. All non-Licensee
Respondents should select "Not Applicable" in response to this question." Furthermore, NAB suggests that the
instructions to Section II-B, Question 3(a) be modified to clarify whether EDP calculations are required when the
EDP rule is not triggered. Finally, NAB suggests that the instructions to Section II-B, Question 3(c) be modified to
clarify whether indirect or direct interests in broadcast stations be disclosed in response to this question. The
instructions direct Respondents to "[l]ist any broadcast stations . . . in which the Respondent has an attributable
interest," but the form asks whether "Respondent or any other person/entity with an attributable interest in the
Respondent also hold an attributable interest in any other broadcast station."
96 MMTC Comments, MB Doc. No 10-103 at 8-11. See also Donald McGannon Communication Research Center
and the Social Science Research Council Comments, Attach., Philip M. Napoli and Joe Karaganis, "Toward a
Federal Data Agenda for Communications Policymaking," at 61-63, 87 (suggesting generally that the Commission
devote more resources to improve the gathering and integrity of data collected through the Form 323).
97 47 C.F.R. §§ 1.1200 et seq.
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arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or givento Commission staff during ex parte meetings are deemed to be written ex parte presentations and must
be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the
Commission has made available a method of electronic filing, written ex parte presentations and
memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through
the electronic comment filing system available for that proceeding, and must be filed in their native
format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize
themselves with the Commission's ex parte rules.
25. Comments and Reply Comments. Pursuant to sections 1.415 and 1.419 of the Commission's
rules, 47 C.F.R. §§ 1.415, 1.419, interested parties may file comments and reply comments on or before
the dates indicated on the first page of this document. Comments may be filed using the Commission's
Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking
Proceedings, 63 FR 24121 (1998).
