Update: Effective Date of Ownership Report Revisions Set, Sort of

Commission’s Order makes it into the Federal Register, establishing deadlines petitions for reconsideration and/or judicial review as well as effective date of the underlying order – but what exactly will take effect on that date?

Back in January we reported on the FCC’s latest attempt to craft the Perfect Broadcast Ownership Report for both the commercial and noncommercial industries. As a result, the RUFRN replaced the SUFRN; NCE licensees will be required to provide a “unique identifier” – that would be a RUFRN or full-fledged FRN – for each attributable principal; NCE licensees will, like their commercial counterparts, all have to file their biennial Ownership Reports on December 1 of each odd-numbered year; and various other revisions to the ownership-reporting process were made. Now the Commission’s action – technical name: “Report and Order, Second Report and Order, and Order on Reconsideration” – has made it into the Federal Register. As a result, some of the changes wrought by the Commission will become effective as of May 4, 2016 … or not.

Which changes exactly? We’ll get to that in a minute, because in our view the most immediate concern here is that this Federal Register publication establishes the deadlines for seeking reconsideration and/or judicial review of the FCC’s order (regardless of when any of the rule changes eventually become effective). So if you’re thinking about filing a petition for reconsideration (with the Commission) or a petition for review (with the U.S. Court of Appeals of your choice), heads up and get your calendars out: petitions for reconsideration must be filed by May 4, 2016. And petitions for judicial review must be filed not later than June 3, 2016.

Appellate aficionados will also recall that, if you’re planning on getting into court and you have your heart set on having your appeal heard in a particular Circuit, you’ll have to jump through the “judicial lottery” hoops. Those hoops require (among other things) that you file your petition for review in your Circuit au choix by May 16, 2016 and then get a copy of your petition, stamped “received” by the court, hand-delivered to the FCC’s General Counsel by that same deadline. (Ordinarily, you’ve got 10 days from Federal Register publication to get your lottery ticket stamped, but since this year the 10th day (May 14) falls on a Saturday, the deadline rolls over to the next business day.) Read all about the judicial lottery here.

Meanwhile, back to the practical question: Exactly which (if any) of the changes will take effect on May 4? That’s not clear.

In the “Dates” section at the beginning of the notice, the Federal Register publication says that the order is “[e]ffective May 4, 2016”. But then it goes on to say, somewhat unhelpfully, that “[t]he amendments to §§ 73.3615 and 74.797 contain new or revised information collection requirements that are not effective until approved by the Office of Management and Budget (OMB).” That’s not especially surprising, since the changes involve, among other things, overhaul of Form 323-E (the noncommercial broadcasting Ownership Report form). Most form revisions have to be run past OMB, thanks to the Paperwork Reduction Act. And – and we’re guessing here – the “unique identifier” requirement will impose new “information collection” chores on many if not most NCE attributable principals, so presumably that, too, will have to go through the PRA grinder.

But what about the end of rolling filing deadlines for NCE stations? That does technically involve the submission of information collections, i.e., the report forms themselves, but arguably the date on which such collections are to be required is not itself technically an information collection subject to the PRA. So will NCE stations have to file their next Form 323-Es on December 1, 2017 (at the earliest), or will they still be having to file on the biennial anniversary of their renewal applications until some further date-to-be-announced?

Here it appears that you have to look way down in Paragraph 139 of the Federal Register notice (Paragraph 94 in the version of the order released by the FCC last January), where it says “the rule amendments attached hereto as Appendix B and the revised filing procedures and changes to FCC Form 323 and FCC Form 323–E adopted in this Report and Order will become effective upon publication of a notice in the Federal Register announcing approval by [OMB]”. (Those are our emphases.) So it looks like NCE stations will remain on their current rolling schedule for the time being. In fact, it looks like nothing will be changing on the Ownership Report front until further notice, notwithstanding the fact that the order has supposedly become “effective” as of May 4. Ideally, the Commission will be clarifying this in the short term.

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