FCC’s Media Bureau Reaffirms NCE Ownership Reporting Requirements, Angers GOP Commissioners

The (seemingly never-ending) saga of the FCC's attempts to revise its biennial ownership reporting requirements for broadcasters has taken an interesting, and somewhat unexpected turn. As we have previously reported, the Media Bureau early last year adopted new requirements related to the FCC Registration Numbers (FRNs) and "Restricted Use FRNs" (RUFRNs) that interest holders would be required to obtain and list in those reports.

In May, a number of interested parties filed Petitions for Reconsideration of the requirements as they would apply to non-commercial licensees. Primarily, those parties raised concerns about the need for, propriety of, and practical difficulty of, obtaining and filing FRNs or RUFRNs for the members of non-commercial licensees' boards of directors (or boards of trustees). The Petitions raised questions about whether those members, who are often elected officials or other ex officio members, should be required to provide the Commission with the personally-identifiable information required to obtain an FRN or RUFRN. They also questioned whether the FRN requirements, as applied to such board members, would actually serve the Commission's goals.

The Media Bureau has released an Order denying those Petitions for Reconsideration, and upholding the new FRN requirements. While this normally might not be too surprising, the current political climate, as well as the procedural route the Bureau used to adopt the Order, make this a more interesting case.

The January 2016 decision for which reconsideration was requested had been adopted by the full Commission (rather than the Media Bureau), and, as a result, the full Commission would in the normal course be required to rule on the Petitions. In denying the Petitions at the Bureau level, however, the Media Bureau utilized a provision of the agency's rules that allows the Bureau to dismiss or deny petitions for reconsideration of full Commission actions if those petitions either rely on arguments the Commission already rejected in the proceeding, or fail to identify any "material error, omission, or reason warranting reconsideration."

Concluding that the Petitions in question did not satisfy these requirements, the Bureau denied them on delegated authority, rather than referring the matter for a vote by the full Commission. In doing so, the Bureau raised the ire of Republican Commissioners Pai and O'Rielly, who promptly issued a Joint Statement taking the Bureau to task for both the merits of its denial as well as the procedure by which it was adopted. As Pai and O'Rielly pointed out in their statement, due to the ongoing change in administrations, including the departure of Commissioner Rosenworcel and imminent departure of Chairman Wheeler, neither the Bureau's decision nor the underlying January 2016 Commission Order, are supported by a majority of the Commissioners. In addition, Commissioners Pai and O'Rielly criticized the Bureau for apparently failing to alert them in any way to their intent to issue the Order denying the petitions, a failure they find particularly troubling during a change in administration, and where Congress has requested that the Commission delay action on any "controversial" items.

In light of their substantive and procedural disagreements with the Order, Commissioners Pai and O'Rielly take the rather unusual step of asking that the decision be challenged, noting that the parties who petitioned for reconsideration may now file an Application for Review. Under Commission rules, essentially any Bureau decision taken under delegated authority may be challenged through an Application for Review, which requests review of the decision by the full Commission. Any Application for Review in this case would be due 30 days after the Order is published in the Federal Register, meaning the review would be considered by a Republican-majority Commission, and quite possibly one chaired by Commissioner Pai. It seems likely that such a Commission would come to a different conclusion than the Bureau. As a result, the Bureau's recent Order would hardly seem to be the final word on this matter.