Should Low Power Stations Fill Out An Ownership Form With The Race and Gender of Their Board?

By Jade Meshesha

On April 8, 2009, the Federal Communications Commission announced that they have adopted several new measures to more accurately assess minority and female broadcasting ownership, and are currently seeking comments regarding Low Power FM and Non Commercial broadcaster ownership filing regulations. The Commission adopted changes to form 323, which must be filed by full power stations, requiring information on race, gender, and ethnicity, and is considering adopting similar rules for form 323-E, which is currently filed by non-commercial stations. It is also considering requiring Low Power FM stations to file an Ownership Report in order to accurately assess, and hence promote media diversity.

Historically, levels of female and ethnic minority broadcasting ownership have been extremely low. In fact, recent independent studies reveal that such dismally low levels of ownership have left over two-thirds of the population underrepresented on the radio- while women make up over half of the population, they own just 6 percent of full power stations, and while minorities make up over a third of the population, they own only 7.7 percent of full power stations. The FCC has repeatedly pledged to address this problem and has a stated policy goal to increase both localism and diversity, but because of inadequate data-gathering measures, lacks the basis to do so. They cannot even account for the current state of affairs-the FCC has no clear data about female and minority ownership. Without reliable data, the Commission has been unable to assess the effectiveness of past policies or formulate new ones.

In its Order, the Commission has adopted several rule changes to address these deficiencies. It added race, gender, and ethnicity information to the Ownership Report (form 323), so that the organizational and ownership structures are correctly identified for full power commercial stations. It has also removed certain filing exemptions (in order to have more complete data), set a biennial filing date of November 1, and has improved its electronic database by making information more easily searchable.

In its Fourth Further Notice of Proposed Rulemaking, the FCC is now requesting comment on possible changes to non commercial and low power station requirements. Noncommercial stations are currently required to file form 323-E while low power fm stations are completely exempt. The Commission is considering making the filing of ownership information, including racial and gender identifying information, mandatory for non commercial and low power fm stations. It is also seeking comment on the specifics, such as whether it should require a uniform filing date every two years and how to minimize any burdens on these smaller stations.

Because LPFMs are also important points of entry for women and minorities, these changes will paint a more accurate overall picture of broadcasting ownership in the United States. Prometheus generally supports promotion of women and minority ownership and supports collection of data to obtain that goal. It is important, though, that the Commission takes appropriate steps to minimize filing burdens- LPFMs generally operate on a much lower budget and staff than power than full power commercial stations. If the FCC decides to extend this requirement to LPFMs, LPFMs would be required to file every two years, and would be fined at a set rate as a result of filing late or missing a filing completely. Though the full text of these reports with more specific information has not yet been released, we have some ideas about how the FCC can get the information it needs without creating too much burden on LPFMs:

-LPFMs should not be required to file every two years- Rather, they should only file once and then again only on the occasions when there is a change in their board of directors.

-Noncompliance fines should be calculated proportionally – Currently, fines for missing a filing are designed for commercial stations, and are quite high. The FCC needs to create a standardized way to fine smaller, noncommercial stations; for instance, as a percentage of budget- rather than at a level designed to be a painful deterrent for full power commercial operations.

-Make navigating required forms more simple- rework the form for an amendment to low power license (form 318) to automatically lead to the electronic ownership form (323-E). There is no sense in having people fill out the same information over and over again on different forms- you should enter it once and then change it when it changes.

In the past, policymakers in Washington may have forgotten the importance of diversity in media. Diversity in ownership opens the airwaves for more choice to listeners, more variety of programming, and more responsiveness to local communities, while providing historically excluded communities access to media outlets. In the landmark Prometheus vs. FCC case, the courts castigated the FCC for ignoring the issue of female and minority broadcasting ownership. By revising form 323 and 323-E to add gender and racial identifying information and by including LPFMs, we think this will help to at least get a reliable set of facts on ownership. That would be taking a preliminary step in formulating effective policy to combat the underlying structural problems that have led to this sorry situation. The rate of minority ownership is appalling, and from what we've seen so far we think a bit more paperwork for LPFMs is worth the trouble in order for the FCC to get the real facts on minority ownership. While collecting this information is important when trying to promote diversity, the FCC must ensure ease of filing and not just create busywork for all of us.

One concern should be laid to rest. The FCC will collect these numbers to see how well they are doing in their overall policy goals of fair media ownership. The information would not, and could not, be used to decide outcomes for individual stations applications. So for anyone that fears discrimination as the result of giving data like this, that would not be possible. The accumulated case law on this is pretty clear- the first amendment and various equal protection provisions means that the FCC can use data like this to look for evidence of systemic inequality, but absolutely could not use data like this to discriminate and decide license applications or take it into account when evaluating the fitness of particular individuals to operate broadcast stations.

Tell us what you think as we formulate our response to the request for comment...more news when official documents come out. You can have a look at the Form 323e that you may need to file at www.fcc.gov click on the right hand column, where it says : “Forms” scroll down till you see the Form 323e.