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After nine months of rumors and uncertainty as to where the FCC is headed after last summer’s indecency decision by the Supreme Court in FCC v. Fox Television Stations, Inc. (which we discussed in this post), the FCC today released a very brief public notice that:

  1. Announces the FCC staff has disposed of over one million indecency complaints (which it states is over 70% of those that were pending at the FCC), “principally by closing pending complaints that were beyond the statute of limitations or too stale to pursue, that involved cases outside FCC jurisdiction, that contained insufficient information, or that were foreclosed by settled precedent.”
  2. Announces that the FCC will continue to actively investigate “egregious indecency cases.”
  3. Announces that it is opening up a new docket (GN Docket No. 13-86), and is seeking comments from the public in that docket as to whether the FCC should change its broadcast indecency policies, and if so, how. While not limiting the breadth of potential changes, the FCC specifically asks whether it is time to go back to the old policy of prosecuting on-air expletives only where there is “deliberate and repetitive use in a patently offensive manner,” or stick with the more recent policy of pouncing on a single fleeting expletive, the policy that led to the Supreme Court’s 2012 decision. The Public Notice also asks if the FCC should treat “isolated (non-sexual) nudity the same or different than isolated expletives?”
  4. Finally, emphasizing again the broad nature of the FCC’s proposed review, the Public Notice asks commenters “to address these issues as well as any other aspect of the Commission’s substantive indecency policies.”

The Public Notice indicates that comments will be due 30 days after the request for comments is published in the Federal Register, with reply comments being due 30 days after that.

While the timing of the Public Notice, just ahead of Chairman Genachowski’s (and Commissioner McDowell’s) announced departure from the FCC, is interesting, more interesting is the “spontaneous” look of the document. In an agency that can readily produce requests for comments that are hundreds of pages long, and on a subject that has produced reams of pleadings and precedent over several decades, the substantive portion of the Public Notice is but a few paragraphs long–a few paragraphs that open the door to a fundamental rethinking of the FCC’s approach to indecency.

The Public Notice therefore has the look of a document that was not long in the making, and which may have emerged as result of a departing Chairman beginning to move the ball forward for his successor. The process forward will likely be complex and arduous, and the ultimate result is anyone’s guess, but by at least launching the proceeding before his departure, Chairman Genachowski will absorb some of the political heat that could have otherwise fallen on his successor, while also challenging that successor to address an issue that has become a significant distraction and consumer of increasingly scarce FCC resources.

While also a result of its brevity, the lack of any “initial” or “tentative” conclusions by the FCC in the document gives the impression that the FCC may indeed be ready to commence a fundamental reexamination of indecency policy, and is not just going through the motions of collecting comments before proceeding on a largely predetermined route. It is not asking so much how it should proceed in light of the Supreme Court’s decision, but how it should proceed in general. For those who loudly proclaim that the FCC has failed in its duties as a “content cop”, as well as broadcasters struggling to figure out on a minute by minute basis what program content might cross the FCC’s invisible indecency line, a fresh look at the issue will be welcome. Whether this “reset” can resolve the many tough questions surrounding indecency enforcement is, however, another question entirely.

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March 2013

Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • Delay in Providing Access to Public Inspection File Leads to Fine
  • FCC Fines Broadcaster for Antenna Tower Fencing, EAS and Public Inspection File Violations

Radio Station Fined $10,000 for Not Providing Immediate Access to Public File

This month, the Enforcement Bureau of the FCC issued a Notice of Apparent Liability for Forfeiture and Order (“NAL”) in the amount of $10,000 against a Texas noncommercial broadcaster for failing to promptly make its public inspection file available. For the delay of a few hours, the Commission proposed a fine of $10,000 and reminded the licensee that stations must make their public inspection file available for inspection at any time during regular business hours and that a simple request to review the public file is all it takes to mandate access.

According to the NAL, an individual from a competitor arrived at the station at approximately 10:45 a.m. and asked to review the station public inspection file. Station personnel informed the individual that the General Manager could give him access to the public files, but that the General Manager would not arrive at the station until “after noon.” The individual returned to the studio at 12:30 p.m.; however, the General Manager had still not arrived at the studio. According to the visiting individual, the receptionist repeatedly asked him if he “was with the FCC.” Ultimately, the receptionist was able to reach the General Manager by phone, and the parties do not dispute that at that time, the individual asked to see the public file. During that call, the General Manager told the receptionist to give the visitor access to the file. According to the visitor, when the General Manager finally arrived, he too asked if the individual was from the FCC, and then proceeded to monitor the individual’s review of the public file.

After the station visit, the competitor filed a Complaint with the FCC alleging that the station public files were incomplete and that the station improperly denied access to the public inspection files. The FCC then issued a Letter of Inquiry to the station, requesting that the station respond to the allegations and to provide additional information. The station denied that any items were missing from the public file and also denied that it failed to provide access to the files.

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At the end of every quarter, TV stations across the land must electronically file with the FCC a Form 398–The Children’s Television Programming Report. However, stations attempting to do that filing for the first quarter of 2013 are discovering that the FCC’s online filing system for those forms ends with the fourth quarter of 2012. As a result, it is preventing many TV stations from preparing their electronic report for the first quarter of 2013, rejecting all efforts to select “First Quarter 2013” as the report to be filed.

At first, it appeared that the FCC had bought into the “Mayan Prophecy” that the world was ending in December 2012, marking the end of the Mayan (and perhaps the FCC’s) calendar. And, had the world actually ended in 2012, filing a Form 398 covering the first quarter of 2013 would have indeed ranked low on most broadcasters’ “to do” lists. However, with 2013 well under way, TV stations are now flummoxed as to how to get the FCC’s electronic filing system to allow the preparation and filing of a first quarter 2013 kidvid report.

Fortunately, there is an answer, but it requires a little background. We reported in a 2010 KidVid Advisory that the FCC had suddenly begun requiring stations to enter their FCC Registration Number and password as the final step before permitting a Form 398 to be filed. As it turned out, this was apparently the first step in creating a new FCC Form 398 filing system.

In July 2012, the FCC released what it termed an “alternate” link for accessing the Form 398 filing system and updated its user manual to indicate that the web address for filing the form is the alternate link. However, the FCC’s main Children’s Television Programming page on the Internet continues to show that the original link is the one to use for filing a Form 398, and until this quarter, that original link has continued to work correctly. Of course, most TV stations just have the original link bookmarked, and have no reason to visit the FCC’s website/user manual to see if the filing procedures have been changed. Adding to the confusion is the fact that following the original link does not generate a warning or error message, but takes you to the same filing page stations have been using for years. It is only when a station tries to create a report for first quarter 2013 that a problem arises.

As a result, the “alternate” link is not just an alternate any more, and must be used to file all post-2012 kidvid reports. So, from here on out, use this link for filing your kidvid reports: http://licensing.fcc.gov/KidVidNew/public/filing/submit_login.faces

Note also that, at the new link, you will have to provide your call sign, Facility ID, FCC Registration Number and Password to even be able to log into the system. This is all information you previously needed to file a Form 398, but you supplied it at the end of the filing process. Now, you can’t even get started without it. For TV stations that have been banging their heads against the wall trying to figure out why they can’t prepare, much less file, their Form 398, using the alternate link should solve that problem. It may be a small problem compared to the end of the world, but then the Mayans never had to deal with online filing.

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While in the works for a while, today’s formal announcement by FCC Commissioner McDowell that he will be departing the FCC leaves a hole in the FCC’s ranks that will be difficult to fill. In many regards, Commissioner McDowell was a throwback to an earlier time, both at the FCC and in Washington, in that his tenure was distinguished not just by his congenial nature, but by an abiding adherence to his regulatory principles, rather than to reaching a particular result. While I suspect he might bristle at being described as a “rational regulator”, preferring instead to be known as a “devoted deregulator”, Commissioner McDowell represented a common-sense approach to the communications industry and the business of regulating it.

Since the job of a lawyer is to obtain for a client the best result legally possible, you would think that lawyers would be big fans of the “predictable vote”–the commissioner whose policy positions are so embedded that there is little doubt as to where they will stand on any particular issue. And of course, if three of the five commissioners are on your side of an issue, that’s a pretty warm and fuzzy place to be. The problem, however, is that for every time three of the five commissioners support your position, there will be a time when three of the five do not.

For that reason, an experienced lawyer will always prefer an inquisitive and open-minded regulator over an ideologue, even when it is an ideologue that agrees with you (today). While the independent-minded regulator will make you work to persuade them each and every time, the opportunity to persuade them is never foreclosed. If you fail to persuade them that your cause is just, then the failure is yours, and not just the result of an agency formalizing a preordained result.

Over the years, the FCC has been blessed with a number of commissioners that have been particularly good at compartmentalizing natural biases, and giving the parties before them a full and fair opportunity to make their case. Probably not coincidentally, many of these same commissioners have had both a healthy sense of humor and humility, putting those around them at ease and creating an environment conducive to an open and lively discussion of the issues. A final characteristic found among this select group–and helpful to anyone in Washington–is the ability to separate the advocate from the issue, recognizing that just because you disagree with the argument that the advocate must make today on behalf of a client doesn’t diminish the advocate who, like the commissioner, is just trying to do their job to the best of their ability, and will have to make a different argument on behalf of a different client tomorrow.

Unfortunately, these characteristics are rarely those that will get you nominated by a President, or see you through a partisan confirmation process, so commissioners with all of these characteristics will inevitably tend to be the exception rather than the rule. Because of this, Commissioner McDowell will be missed by many who work at, and with, the FCC. In a town where some individuals have countdown calendars marking the number of days remaining in a particular government official’s tenure, it is perhaps the ultimate backhanded Washington compliment that the most arresting part of Commissioner McDowell’s departure announcement was where it noted he had been at the FCC for “nearly seven years.” It’s hard to believe it has been that long.

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February 2013

Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • FCC Takes Action Against Interference and Unlicensed Operations
  • FCC Assesses $25,000 Fine for Unresponsiveness

Licensee Cannot Escape Fine for Intentional Jamming and Unlicensed Operations
In a rather odd chain of events, the FCC recently issued a Memorandum Opinion and Order (“Order”) against an individual in Thousand Oaks, California stemming from a 2009 investigation and a 2011 Forfeiture Order. The Order rejected a petition for reconsideration of the earlier Forfeiture Order and affirmed the FCC’s decision to fine the individual for unlicensed radio operations, intentional interference with radio operations, and refusal to allow an inspection of radio equipment.

In March 2009, an agent from the FCC’s Enforcement Bureau investigated radio interference at a shopping center. The agent located an unlicensed repeater transmitter operating from a secure radio communications facility on Oat Mountain with a beam antenna pointed in the direction of the shopping center. The repeater was transmitting pulsating signals on 461.375 and 466.375 MHz, the land mobile frequencies licensed to the shopping center for its own operations. These transmissions were jamming the shopping center’s licensed land mobile operations.

During the investigation, an unidentified individual communicated with shopping center personnel on a different set of frequencies, telling them they had “plenty of warning”, that he was jamming their licensed frequencies to force them to cease use of those frequencies, and that they needed to apply to the FCC to cancel their current land mobile license and apply for a new license to operate on different frequencies. He then began transmitting NOAA weather radio on the licensed frequencies to block any use of those frequencies by the shopping center.

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At this stage in the media cycle, few could have missed the news of several Michigan and Montana TV stations airing an EAS alert warning the public of a zombie attack. As I noted earlier this week, while the facts surrounding these alerts are still developing, it appears they were the result of someone outside the U.S. triggering the stations’ EAS equipment via that equipment’s Internet connection. While the resulting burst of media stories quickly devolved into a flurry of zombie jokes, the movie that came to mind as the story developed was not Night of the Living Dead, but the Terminator films, which feature an interconnected national defense network called Skynet. In the films, Skynet becomes so sophisticated as to turn on its creators, causing a nuclear launch that brings destruction to the human race and, after the movie, Arnold Schwarzenegger to the California Governor’s Office.

For many years, the EAS system, as well as its predecessor, the Emergency Broadcast System, operated by having a number of primary broadcast stations connected to governmental agencies through a closed network (typically over telephone lines). When an alert was sent to these primary stations, they would broadcast the alert, which would then be picked up and aired by stations monitoring the signal of the primary station, and in turn, by other stations monitoring those secondary stations. This created a daisy chain in which an announcement over one station quickly spread to stations throughout the alert area.

One of the perceived flaws of the Emergency Broadcast System was the amount of human interaction it required. For example, when a national alert was accidentally triggered in 1971, it caused little disruption, since many station managers intercepted it and did not air it because they heard no corroboration of the emergency over their newswires. While it turned out that those station managers were correct in concluding it was an accidental alert, critics of the Emergency Broadcast System counted this event as a failure of the system, since the delay inherent in station managers deciding whether an alert should be aired (and the risk that they may reach the wrong conclusion) puts more lives in danger.

The shift to EAS from the Emergency Broadcast System was done largely to increase the automation, and therefore the reliability, of the system. That digital squeal you hear accompanying an EAS warning is a digital code instructing other equipment, including the public’s radios (if properly equipped), to activate, lessening the chance that emergency alerts go unheard, either because a link in the daisy chain failed to relay the message, or because the public was not listening to radio or watching TV at the time.

The downside to this level of automation soon became apparent. As I wrote in September of 2010, a radio ad for gas stations sought to satirize emergency alert announcements, right down to including the EAS digital tone. Because EAS equipment has a poor sense of humor and is no judge of context, any station airing the ad would trigger EAS alerts on the stations “downstream” from it in the EAS daisy chain. For this reason, Section §11.45 of the FCC’s Rules provides that “No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS.” Just a few months later, the problem repeated itself when TV ads for the disaster movie Skyline included an EAS tone among the many sound effects in the ad.

The highly automated nature of EAS was demonstrated yet again this week, when a Wisconsin radio station’s morning show disc jockeys played a tape of the zombie EAS alert, including the digital tone. The result was–you guessed it–the alert being automatically rebroadcast over at least one local television station whose EAS equipment was activated by the digital EAS tone.

While the automatic nature of EAS creates the risk of false alerts propagating rapidly, at least the false alerts up until now were somewhat self-inflicted wounds, caused by either the system being erroneously activated by a governmental mistake, or by an EAS Participant accidentally airing an activation code contained in third-party content. Because of the closed nature of the system, false activations necessarily required a mistake from a participant in the EAS system, even if that mistake was airing third party content that had not been screened for EAS tones.

This week’s episode, however, appears to have been something entirely different. In an effort to expand the types of consumer devices capable of relaying an alert, the backbone of the EAS system was moved not long ago from the closed network model to an Internet-based system. The benefit is that mobile and other devices connected to the Internet will be able to relay alerts to the public automatically, ensuring the broadest possible distribution of the alert. The bad news, however, is that by shifting to an Internet backbone, we have opened the public alert system to the same outside forces that plague every other aspect of the Internet. In this week’s case, it appears that someone outside the U.S. spent a number of days trying to use those Internet connections to access station EAS equipment. In at least a few cases, they succeeded, generating the now-infamous zombie alerts.

So the good news is that we are well along in the development of an automated emergency alert system that can spread emergency information to most Americans in a matter of minutes. The bad news is that by putting the system almost entirely under the control of “the machines” (a Terminator term), the moderating effect of human involvement is greatly limited. In addition, by connecting this equipment through the Internet, we have expanded the ubiquity of the system, but at the cost of making every EAS Participant’s equipment, whether in Michigan, Montana, or elsewhere, readily accessible to every miscreant in the world with an Internet connection.

Thus, we are perfecting an automated response system that operates most efficiently without human involvement, while creating opportunities for control of that system (or at least portions of it) to fall into the hands of those who do not have our best interests at heart. In other words, Skynet is now a reality. This Skynet does not, thankfully, have the power to initiate nuclear launches, but it certainly does have the capability to launch public panic. A more realistic alert than a zombie attack could cause immense confusion and harm, particularly where the false message is being reinforced by identical EAS alerts on every source of information available, whether it be broadcast, cable, satellite, or smartphone.

I have worked with many of the individuals who created and have dedicated themselves to improving and expanding the current EAS system, and I have no doubt that they are moving quickly to seal off any vulnerabilities discovered in the zombie attacks. Still, I can’t help but wonder if EAS is now subject to the same Internet arms race that bedevils online security everywhere, with ever-evolving measures and countermeasures being deployed in an effort to stay one step ahead of those wishing to commandeer the alert system for their own benefit or amusement. If so, the questions becomes: which is worse, false alerts that panic the populace, or a populace that becomes so used to false alerts that they ignore a real one?

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With the State of the Union Address occurring tonight, the FCC wasted no time in advising broadcast stations and other EAS Participants to take immediate steps to prevent unauthorized uses of the Emergency Alert System like the fake zombie attack alerts that went out over a few stations in Michigan and Montana yesterday. While federal and state authorities are investigating the source of those hoax alerts, which appear to have come from outside the U.S., the FCC has just released instructions for EAS Participants in hopes of heading off any more false alerts.

The haste with which these instructions have been generated is demonstrated by the fact that they are not even on FCC letterhead, nor formatted for such a release. It is also worth noting that they are not described as “recommendations” or “guidelines”, but as actions EAS Participants “must” or “are required” to take. A copy of the FCC release can be found here, but the full text is below:

Urgent Advisory: Immediate actions to be taken regarding CAP EAS device security.

All EAS Participants are required to take immediate action to secure their CAP EAS equipment, including resetting passwords, and ensuring CAP EAS equipment is secured behind properly configured firewalls and other defensive measures. All CAP EAS equipment manufacturer models are included in this advisory.

All Broadcast and Cable EAS Participants are urged to take the following actions immediately

  1. EAS Participants must change all passwords on their CAP EAS equipment from default factory settings, including administrator and user accounts.
  2. EAS Participants are also urged to ensure that their firewalls and other solutions are properly configured and up-to-date.
  3. EAS Participants are further advised to examine their CAP EAS equipment to ensure that no unauthorized alerts or messages have been set (queued) for future transmission.
  4. If you are unable to reset the default passwords on your equipment, you may consider disconnecting your device’s Ethernet connection until those settings have been updated.
  5. EAS Participants that have questions about securing their equipment should consult their equipment manufacturer.

I’ll have more to say about the zombie apocalypse in the next few days, as I was already writing a post on the subject when the FCC release arrived. However, I wanted to get the FCC’s message out to broadcasters, cable operators, and other EAS Participants quickly, so that they can take action to prevent further hoax alerts, as well as be aware of the seriousness with which the FCC is taking these false alerts. Management should make sure that their staff is on alert for unusual EAS activity, particularly during major events coverage.

While the farcical nature of the initial hoax caused more amusement than panic, it is easy to see how a more realistic message could have caused far more damage. Yesterday’s events will hopefully be isolated incidents, but we will be seeing a lot more attention focused on the security, as opposed to the reliability, of the EAS system.

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January 2013

Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • FCC Assesses $8,000 Fine for EAS Equipment Installation Problems
  • Notice of Violation Issued against FM Station for a Variety of Reasons

FCC Proposes Fine for Operational, But Not Fully Functional, EAS Equipment

The FCC has often noted the importance of the national Emergency Alert System (“EAS”) while taking enforcement action against broadcast stations whose EAS equipment is not functioning or who otherwise fail to transmit required EAS messages. In a slightly atypical case, the FCC this month issued a Notice of Apparent Liability for Forfeiture and Order (“NAL”) for $8,000 against the licensee of an FM radio station in Puerto Rico because, even though the station’s EAS equipment was fully operational, the manner of installation made it incapable of broadcasting the required EAS tests automatically.

In April 2012, agents from the FCC’s Enforcement Bureau inspected the station’s main studio and discovered that the EAS equipment was installed in such a way that it was not able to automatically interrupt programming to transmit an EAS message. Section 11.35 of the FCC’s Rules requires that all broadcast stations have EAS equipment that is fully operational so that the monitoring and transmitting functions are available when the station is in operation. The Rules further require that broadcast stations be able to receive EAS messages, interrupt on-air programming, and transmit required EAS messages. When a facility is unattended, automatic systems must be in place to perform these functions. During the inspection, the station’s director admitted that the EAS equipment was not capable of transmitting an EAS message without someone manually reducing the on-air programming volume. He further admitted that the equipment had been in this condition since at least September 2011, if not earlier.

The station broadcast programming 24 hours a day, but was only staffed from 6:00 am to 7:00 pm. As a result, when the station was unattended, it could not interrupt programming to transmit EAS messages. The base forfeiture for failing to maintain operational EAS equipment is $8,000, which the FCC thought was appropriate in this case. The FCC also directed the licensee to submit a written statement indicating that the EAS equipment is now fully operational at all times, particularly when unattended, and otherwise in full compliance with the FCC’s rules.

FM Station Receives Notice of Violation for an Assortment of Violations

At the end of last month, the FCC issued a Notice of Violation (“NOV”) against the licensee of an FM radio station in Texas based upon an October 2012 inspection by an agent from the Enforcement Bureau. The agent concluded that the licensee was violating a number of FCC rules.

Section 73.1350 of the FCC’s Rules requires that licensees establish monitoring procedures to ensure that the equipment used by a station complies with FCC rules. Upon inspection, the FCC agents found no records indicating that the licensee had established or implemented such monitoring procedures, and the station’s chief engineer had difficulty monitoring the equipment’s output when asked to do so by the agent. Sections 73.1870 and 73.3526 also require that a chief operator be designated, that designation be posted with the station’s license at the main studio, and a copy of the station’s current authorization be kept in the station’s public inspection file. At the time of the inspection, the NOV indicated there was no written designation of the chief operator and the station’s license renewal authorization was not at the station’s main studio.

During the inspection, the agent also found that the FM station’s EAS equipment was unable to send and receive tests and was not properly installed to transmit the required weekly and monthly tests. The licensee also did not have any EAS logs documenting the tests sent and received and, if tests were not sent or received, the reasons why those tests were not sent or received, all in violation of Section 11.35 of the FCC’s Rules.

Finally, pursuant to Section 73.1560 of the FCC’s Rules, if a station operates at reduced power for 10 consecutive days, it must notify the FCC of that fact. Operation at reduced power for more than 30 days requires the licensee to obtain a grant of Special Temporary Authority from the FCC for such operation. In this instance, the FM station had been operating at reduced power for 14 consecutive days, and the FCC found no indication that it had been notified by the licensee of the station’s reduced power operations.

As a result of the NOV, the licensee must submit a written response, explaining each alleged violation and providing a description and timeline of any corrective actions the licensee will take to bring its operations into compliance with the FCC’s rules. The FCC may elect to assess a fine or take other enforcement action against the station in the future if it ultimately determines the facts call for such a response.

A PDF version of this article can be found at FCC Enforcement Monitor.

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Being businesses built upon the value of information, and working constantly to create new business models aimed at monetizing that information, the communications industry tends to be very careful about letting any form of information leave the building. That, along with the highly competitive nature of the industry, means many industry players keep a very tight grip on all business-related information. As a result, the communications industry often ranks up there with defense contractors in imposing broad confidentiality restrictions on their employees, either by contract or through general corporate policy.

There are times, however, when the government has determined that public policy considerations outweigh the need of a business for secrecy. The most obvious exceptions come in the form of subpoenas and search warrants. However, there are also more subtle exceptions, one of which is addressed today in a Pillsbury Client Alert from our employment and litigation practices. The Client Alert addresses a number of decisions that have been coming out of the National Labor Relations Board, several of which found that the respective employer’s confidentiality policies violated the National Labor Relations Act because the policies could be read to prohibit employees from discussing wages, benefits, or other terms and conditions of employment with anyone else.

Under the National Labor Relations Act, such confidentiality restrictions are illegal, largely because they impede employees from engaging in collective bargaining or other employee protection activities. For those who are about to breath a sigh of relief after thinking to themselves “this doesn’t affect me since my business isn’t unionized,” hold that breath for a moment. As the Client Alert points out, while it is true that the National Labor Relations Act, and the National Labor Relations Board, are known mostly for their union-related jurisdiction, the National Labor Relations Act applies to all private employers that affect interstate commerce, not just union shops.

As the federal government’s regulation of much of the communications industry, particularly broadcasting, is based upon the interstate nature of those businesses (even where a station’s service area is entirely within a single state), it is safe to say there are few in the communications industry that are not subject to these recent rulings. In fact, while I won’t attempt to summarize the Client Alert here, as it is brief and well worth taking the time to read, I will note that one of the decisions discussed involves a player in the communications industry whose confidentiality policy was actually found to be acceptable.

In light of these recent decisions, all businesses should take a look at their confidentiality policies to determine whether they can be read to prohibit, for example, employees from discussing their salaries, raises and bonuses with each other. If the confidentiality policy is written so broadly as to unintentionally prohibit such activities, a rewrite of that policy is in order. In contrast, if the very notion of employees discussing their salaries with each other gives you heartburn, and your confidentiality policy is specifically targeted at preventing such conversations, then you have a more extensive policy rewrite ahead of you, and a lot more heartburn coming.

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Earlier today, the FCC released a Sixth Further Notice of Proposed Rulemaking relating to its biennial broadcast ownership report filing requirements, reigniting a controversy over privacy, broadcast investment, and indeed, the very purpose of the reports.

In 2009, the FCC revamped its Form 323, the Commercial Broadcast Station Ownership Report, somewhat to address data collection shortcomings identified by the U.S. Government Accounting Office, but mostly to try to make the information more standardized and transparent for academic researchers wishing to generate industry-wide ownership statistics, particularly with regard to minority and female ownership. Unfortunately, the FCC’s initial effort to revise the form seemed to have focused on trying to create a form that researchers would applaud, rather than on the “user experience” of those required to fill it out. The result was an awkward effort at forcing complex ownership information into highly redundant machine-readable spreadsheet formats.

Causing particular consternation, however, was a new requirement that every officer, director and shareholder mentioned in those reports have a unique FCC-issued Federal Registration Number (FRN). Because the FCC wants researchers to be able to track the race, ethnicity and gender of each individual connected with a broadcast station, it requires that those registering to obtain an FRN provide either a Taxpayer Identification Number (TIN), or a Social Security Number (SSN). This, according to the FCC, is necessary to allow it to differentiate between individuals that may have similar names and addresses.

Not surprisingly, this requirement met with fierce opposition from numerous groups, including: (1) those who have heard the admonition of government and others to never reveal your SSN to anyone or risk identity theft; (2) broadcasters, who found less than thrilling the experience of badgering their shareholders to either hand over their SSN or take the time to apply for and deliver the FRN themselves; (iii) broadcast lawyers, trying to get ownership reports on file by the deadline despite never hearing back from a significant percentage of those asked to cooperate to provide individual FRNs; and (iv) the investor community, which is not fond of the idea of having to hand over personal information because an individual chose to buy shares of a broadcast company rather than a movie studio.

After fierce opposition and various failed efforts to get the FCC to eliminate the requirement or at least create an alternate method of obtaining an FRN that didn’t require an SSN or TIN, the FCC had a change of heart when required by the U.S. Court of Appeals for the DC Circuit to explain itself (you can read Paul Cicelski’s discussion of that response here). The FCC defended the new ownership report filing requirements by telling the court that no one would be forced to hand over their SSN or TIN, as it was going to permit broadcasters to apply for a Special Use FRN (SUFRN, one of the most descriptive acronyms you will find) in cases where a party refuses to allow use of its SSN/TIN. In light of this representation, the court declined to intervene, and the FCC proceeded with implementation of the new ownership report form and requirements.

With the availability of SUFRNs and various other changes to the ownership report form and filing system, the FCC was finally able to make the oft-extended filing deadline stick, with commercial broadcasters filing their November 1, 2009 ownership reports by a July 8, 2010 deadline. However, the effort at making the data more accessible for researchers ended up making the form very burdensome for broadcasters required to complete and submit the reports. The biggest issue is structural–requiring the submission of the exact same information over and over in a filing system never lauded for its user-friendliness. During the numerous extensions of the filing deadline, the FCC did incorporate some features like copy and paste to lessen the burden of creating duplicative reports, but no tech feature can overcome the burden created by requiring the filing of the exact same ownership information over and over again for each station in a group rather than just reporting the ownership of that group (once) and the stations that are in it. Because of this, even a relatively small broadcast group can find itself filing well over a hundred ownership report forms.

The irony is that even media researchers–the very group for which this unwieldy reporting system was created–have begun to complain that the sheer volume of filings makes it difficult to sort through the mass of repetitive data. Many communications lawyers seem to agree, finding the “old” ownership reports far more useful in understanding a station’s ownership than the current edition.

Still, broadcasters and the FCC seemed to have reached a detente over the reports, with broadcasters quietly grumbling to themselves about the mind-numbing repetitiveness of drafting and filing the reports, but (having seen in the earlier iterations of the “new” report) knowing how much worse it could be. That detente may have ended today when the FCC released the Sixth Further Notice of Proposed Rulemaking, which tentatively concludes that the need to uniquely identify each person connected with a broadcast station is so strong that it must end the availability of SUFRNs and require that all reported individuals get an FRN based upon their SSN or TIN.

While the FCC’s conclusions are “tentative”, and it requests comment on these and many other questions relating to the ownership report, you can feel the collective chill go down broadcasters’ spines as the FCC proceeds to suggest that it could fine individuals who fail to provides an SSN/TIN-based FRN, and queries whether broadcasters should be required to warn their shareholders of that. Telling shareholders or potential shareholders that they face fines for electing to invest their money in broadcasting is not exactly the best way to attract investment to broadcasting, including investment by the minority and female investors the FCC so clearly wants.

But it is that last issue that raises the most curious point of all: to get minority and female ownership information, the FCC seeks to implement an awkward, intrusive, burdensome, privacy-insensitive ownership reporting regime premised on the need for both massive ownership filings and the tracking of individuals by their SSN to determine minority and female ownership trends in the industry. Wouldn’t it be far simpler, less intrusive, and less burdensome to just ask broadcasters to provide in their ownership reports (or elsewhere) aggregate data on their minority and female officers, directors, and shareholders? Researchers could then just utilize that data to create industry totals rather than having to wade through mountains of unrelated ownership data to derive it themselves.

Instead of this simplified approach, the FCC seems intent upon using the clumsy mechanism of ownership reports to assess minority and female representation in the industry, stating in the Sixth Further Notice of Proposed Rulemaking that “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.” For those of us who have been in the industry for quite some time, that claim is surprising, as the very first sentence of Section 73.3615, the FCC rule that governs the filing of ownership reports, states: “The Ownership Report for Commercial Broadcast Stations (FCC Form 323) must be electronically filed every two years by each licensee of a commercial AM, FM, or TV broadcast station (a “Licensee”); and each entity that holds an interest in the licensee that is attributable for purposes of determining compliance with the Commission’s multiple ownership rules.”

In attempting to convert a reporting obligation designed to ensure multiple ownership rule compliance into an academic research tool on minority and female broadcast ownership, the FCC undermines both goals. Broadcasters have routinely provided the minority and female ownership data the FCC seeks without fuss, and can hardly be faulted for wishing to do so in a straightforward manner that: (a) doesn’t require unnecessarily complex and redundant filings; and (b) doesn’t require them to badger their shareholders for private information while threatening their shareholders with federal fines for failing to comply. Rather than “doubling down” on a flawed approach, perhaps it is time for the FCC to step back and reassess the most efficient way of obtaining the desired information–more efficient for broadcasters, more efficient for the FCC, and more efficient for media researchers.