Form FCC Form 323 FCC Form 323 Ownership Report for Commercial Broadcast Stations
Ownership Report for Commercial Broadcast Station, FCC Form 323
FCC Form 323 Post-Reconsideration Version (Final)
Ownership Report for Commercial Broadcast Station
OMB: 3060-0010
Federal Communications Commission Not Approved by OMB
Washington, D. C. 20554 3060-0010
FCC 323
INSTRUCTIONS FOR OWNERSHIP REPORT
GENERAL INSTRUCTIONS
1. Definitions. For the purposes of completing this form:
A Licensee is a natural person or an entity that holds a Commission license for a commercial broadcast station.
A Permittee is a natural person or an entity that holds a Commission construction permit for a commercial broadcast station.
A Respondent is any person or entity that is required to file Form 323.
2. Filing Requirements: Non-Biennial Ownership Reports. Licensees and Permittees of commercial AM, FM, or full power television stations must file Form 323 to report all attributable interests in the Licensee or Permittee as follows.
Transfers of Control/Assignment of License. Licensees and Permittees must file Form 323 following the consummation of a transfer of control or an assignment of a commercial AM, FM, or full power television station license or construction permit. Note: FCC consent is required prior to consummation of transfers of control / assignments of broadcast authorizations.
Post-grant of Construction Permit. A Permittee of a new commercial AM, FM or full power television broadcast station must file Form 323 within 30 days after the grant of the construction permit.
Application for Station License. A Permittee of a new commercial AM, FM, or full power television broadcast station must file Form 323 to update the initial report or to certify the continuing accuracy and completeness of the previously filed report (see item (B), above) on the date that the Permittee applies for a license to cover the construction permit.
In the case of organizational structures that include holding companies or other forms of indirect ownership, a separate FCC Form 323 must be filed for each entity in the organizational structure that has an attributable interest in the Licensee.
3. This form is not to be used to request a transfer of control or assignment of license or construction permit. The appropriate forms for use in connection with such transfers or assignments are FCC Forms 314, 315 and 316. See 47 C.F.R. Sections 73.3540 and 73.3541. It is the responsibility of the Licensee or Permittee to determine if a given transaction constitutes a transfer of control or an assignment. However, for purposes of example only, and for the convenience of interested persons, there are listed below some of the more common types of transfers. A transfer of control takes place when:
(a) An individual stockholder gains or loses affirmative or negative (50%) control. (Affirmative control consists of control of more than 50% of voting stock; negative control consists of control of exactly 50% of voting stock.)
(b) Any family group or any individual in a family group gains or loses affirmative or negative (50%) control.
(c) Any group in privity gains or loses affirmative or negative (50%) control.
The following are examples of transfers of control or assignments requiring prior Commission consent:
(a) A, who owns 51% of the Licensee’s or Permittee’s stock, sells 1% or more thereof. A transfer has been effected.
(b) X corporation, wholly owned by Y family, retires outstanding stock which results in family member A’s individual holdings being increased to 50% or more. A transfer has been effected.
(c) A and B, husband and wife, each owns 50% of the Licensee’s or Permittee’s stock. A sells some of his stock to B. A transfer has been effected.
(d) A is one of the partners in the Licensee. A sells any part of his interest to newcomer B or existing partner C. An assignment has been effected.
(e) X partnership incorporates. An assignment has been effected.
(f) Minority stockholders form a voting trust to vote their 50% or more combined stockholdings. A transfer has been effected.
(g) A, B, C, D, and E each own 20% of the stock of X corporation. A, B, and C sell their stock to F, G, and H at different times. A transfer is effected at such time as 50% or more of the stock passes out of the hands of the stockholders who held stock at the time the original authorization for the Licensee or Permittee corporation was issued.
4. Filing Requirements: Biennial Reports. Licensees of commercial AM, FM, and full power television broadcast stations, as well as Licensees of Class A and Low Power Television stations must file FCC Form 323 every two years. The initial filing deadline shall be set by Public Notice issued by the Media Bureau. Thereafter, the Form shall be filed biennially by November 1, 2011, and every two years thereafter. Ownership Reports shall provide information accurate as of October 1 of the year in which the Report is filed, except that the Form filed by the initial filing date shall provide the information as of November 1, 2009. See 47 C.F.R. Section 73.3615(a); In re Promoting Diversification of Ownership in the Broadcasting Services, Report and Order and Fourth Further Notice of Proposed Rulemaking, FCC 09-33, 24 FCC Rcd 5896 (2009) and In re Promoting Diversification of Ownership in the Broadcasting Services, Memorandum Opinion and Order and Fifth Further Notice of Proposed Rulemaking, FCC 09-92 (rel. Oct. 16, 2009).
Licensees must include all attributable interests on FCC Form 323. For a description of attributable interests see the instructions below and 47 C.F.R Section 73.3555 Notes. File a separate Form 323 for each entity that holds an attributable interest in a Licensee of a station for which the Form 323 must be filed biennially. In the case of organizational structures that include holding companies or other forms of indirect ownership, a separate Form 323 must be filed for each entity in the organizational structure that has an attributable interest in the Licensee.
In the case of a Licensee of multiple stations or other Respondent with attributable interests in a Licensee of multiple stations, where the ownership structure of each station is identical and the information submitted is equally applicable to each station, a single Form 323 may be filed for the Licensee or Respondent listing all such stations. After the initial biennial filing in 2009, if there has been no change in the information submitted since the filing of the last biennial report, a Licensee or other Respondent may electronically validate and resubmit its previously filed Form 323.
5. Electronic Filing of FCC Form 323. All Form 323 filings must be submitted electronically. Use the Media Bureau Electronic Filing system (http://www.fcc.gov/mb/elecfile.html)
SECTION I – General Information (All Respondents Must Complete)
Questions 1 and 2: Names/Addresses. Enter the legal name, address, contact information and FCC Registration Number of the Respondent. If the Report is filed on behalf of more than one station, enter the call sign and Facility ID Number of one of the stations in the relevant group. Enter the contact information for the Respondent’s representative, as appropriate, in Question 2.
Licensees/Permittees: The name of the Licensee or Permittee should be stated exactly as it appears on the station’s existing license or construction permit. The current street address or post office box used by the Licensee or Permittee for receipt of Commission correspondence should be set forth. Any change in the name of the Licensee or Permittee, which does not involve a change in ownership requiring prior Commission approval, can be communicated to the Commission by letter. Changes in the mailing address previously used by the Licensee or Permittee should be promptly transmitted to the Commission. See 47 C.F.R. Section 1.5. To report any changes in the mailing address, use the Media Bureau Electronic Filing system (http://www.fcc.gov/mb/elecfile.html). Licensees or Permittees can also mail in the form entitled “Change in Official Mailing Address for Broadcast Station” (Form 5072).
FCC Registration Number (FRN). To comply with the Debt Collection Improvement Act of 1996, the Respondent must enter its FRN number, a ten-digit unique entity identifier for anyone doing business with the Commission. The FRN can be obtained through the FCC Registration System, CORES, which is listed among the FCC E-Filing systems (http://www.fcc.gov/e-file/).
Questions concerning the FCC Registration Number can be directed to the Commission’s Registration System help desk via email at [email protected] or by calling 1-877-480-3201 (Mon.-Fri. 8 a.m.-6 p.m. ET).
Facility ID Number. Facility ID numbers can be located by using the “Station Search” at the Media Bureau Electronic Filing system (http://www.fcc.gov/mb/elecfile.html). In addition, the Facility ID Number is included on all broadcast authorizations and postcards.
Question 3: Select the appropriate button to indicate the nature of the Respondent, e.g., a Licensee, Permittee, or an entity required to file a Form 323 because it holds an attributable interest in the Licensee or Permittee.
Question 4: Fees. By law, the Commission is required to collect charges for certain of the regulatory services it provides to the public. A fee is required to be paid and submitted with the filing of a Licensee’s biennial ownership report only. All other Form 323 Reports are fee-exempt Reports. Amendments to filed Reports do not require payment of additional fees.
In cases where there has been no change in information since the last filing of a station’s biennial ownership report, and a Respondent electronically validates and resubmits its previously filed Form 323, such resubmission constitutes the station’s biennial ownership report for that year and the required fee must also be submitted. The fee for the biennial ownership report (whether on a new Form 323 or as a resubmission) is payable by the Licensee and is calculated on an individual station basis. It is the number of stations for which a report is filed that determines the total fee due; not the number of Form 323’s filed to provide a complete set of ownership information.
Fee Exemption: Entities With Attributable Interests. Respondents that are not Licensees but that are required to File Form 323 because they have an attributable interest in a Licensee are not required to pay the Biennial Report fee. Such filers should select the option marked “Fee-exempt Report” in response to Question 4.
Fee Exemption: Governmental Entities. Governmental entities, which include any possession, state, city, county, town, village, municipal corporation or similar political organization or subpart thereof controlled by publicly elected and/or duly appointed public officials exercising sovereign direction and control over their respective communities or programs, are exempt from payment of a fee in connection with the filing of any Form 323. Such filers should select the option marked “Governmental Entity” in response to Question 4.
Question 5: Enter the “accurate as of” date in this field. The date entered must (1) be no earlier than Oct. 1 of the filing year when filing a Biennial Ownership Report (and no earlier than Nov. 1, 2009 in the case of the initial filing); or (2) be no more than 60 days prior to the date of filing when filing a non-biennial Ownership Report.
Question 6: Purpose. Indicate in the checkboxes provided whether the Report is (a) filed to satisfy the Biennial filing requirement; (b) a validation and resubmission of a previously filed Biennial Report (certifying no change from the previously filed Biennial Report), (c) filed in connection with a transfer of control or assignment, (d) a Report by a Permittee within 30 days after the grant of a construction permit; (e) an update or certification of accuracy of an initial Report filed by a Permittee; or (f) for the purposes of amending a previously filed Report.
Question 7: Licensee and Station Information. All Respondents must enter the name and FCC Registration Number (FRN) of the Licensee for all stations listed on the Report. Also enter the call sign, Facility ID Number, community of license location, and class of service for each station.
Question 8: Indicate the nature of the Respondent by selecting one of the checkboxes.
SECTION II-A—Non-Biennial Ownership Report
Question 1: Contract Information. Licensees and Permittees are required to file with the Commission any contract or modification of contract relating to the ownership, control, or management of the Licensee or Permittee or to its stock. See 47 C.F.R. Section 73.3613. Section 73.3613 requires the filing of all contracts of the types specified and is not limited to executed contracts, but includes options, pledges, and other executory agreements and contracts relating to ownership, control, or management.
Licensees or Permittees of commercial AM, FM, and full power television stations should enter a listing for each contract and other instrument required to be filed by 47 C.F.R. Section 73.3613 in the fields provided, including a brief description of the contract/instrument, the name of the person or organization with whom the contract/instrument is made, the date the contract/instrument was executed, and the date the contract/instrument expires. If the agreement is a local marketing agreement (LMA) or a radio joint sales agreement (JSA), or if the agreement is a network affiliation agreement, check the appropriate box; otherwise, select “Other” for other types of agreements. Each contract/instrument must be identified and listed directly in the fields provided. Enter the month and year of the date of execution, and the month and year of the date of expiration. If the agreement is perpetual or does not have a fixed expiration date, select “No Expiration Date.” For the purposes of completing Question 1, only the listings of each contract/instrument are required. Do not attach copies of the contracts/instruments to the form.
Only Licensees, Permittees, and entities with a majority interest in or that otherwise exercise de facto control over a Licensee or Permittee must respond to this question. All non-Licensee/Permittee Respondents should select “Not Applicable” in response to this question.
Question 2: Capitalization. Only Licensees, Permittees and Respondent entities with a majority interest in (or that otherwise exercise de facto control over) a Licensee of a commercial AM, FM, or full power television station must enter the capitalization information in Question 2. For each type of stock, enter the class of stock, indicate whether the class is voting or non-voting, and enter in the number of authorized shares in the applicable category field(s) (Authorized, Issued & Outstanding, Treasury and Unissued).
Question 3: Ownership Interests. As used in Question 3, an attributable interest is an ownership interest in or relationship to a Licensee or Permittee which will confer on its holder that degree of influence or control over the Licensee or Permittee sufficient to implicate the Commission’s ownership rules. In responding to Question 3, Respondents should review the Commission’s multiple ownership attribution policies and standards which are set forth in the Notes to 47 C.F.R. Section 73.3555, as revised and explained in Review of the Commission’s Regulations Governing Attribution of Broadcast and Cable/MDS Interests, 14 FCC Rcd 12559 (1999), recon. granted in part, 16 FCC Rcd 1097 (2000). See also Report and Order in MM Docket No. 83-46, 97 FCC 2d 997 (1984), recon. Granted in part, 58 RR 2d 604 (1985), further modified on recon., 61 RR 2d 739 (1986); In re Promoting Diversification of Ownership in the Broadcasting Services, Report and Order and Third Further Notice of Proposed Rulemaking, 23 FCC Rcd 5922, FCC 07-217 (2008).
Part (a): This Question requires Respondents to enter detailed information about ownership interests by generating a series of subforms. Answer each question on each subform. The first subform listing should be for the Respondent itself. If the Respondent is not a natural person, also list each of the officers, directors, stockholders, non-insulated partners, members and other persons or entities with a direct attributable interest in the Respondent. (A “direct” interest is one that is not held through any intervening companies or entities.) In the case of vertical or indirect ownership structures, report only those interests in the Respondent that also represent an attributable interest in the Licensee or Permittee for which the Report is being submitted.
List each person or entity with a direct attributable interest in the Respondent separately. Entities that are part of an organizational structure that includes holding companies or other forms of indirect ownership must file separate ownership reports. In such a structure, do not report or file separate reports for persons or entities that do not have an attributable interest in the Licensee or Permittee for which the report is being submitted.
The following interests are attributable and the holder of such interest should be reported in response to Question 3(a):
If a Corporation: Each officer, director, and owner of stock accounting for 5% or more of the issued and outstanding voting stock of the Respondent is considered the holder of an attributable interest and must be reported. Where the 5% stock owner is itself a corporation, each of its stockholders, directors and executive officers (president, vice-president, secretary, treasurer or their equivalents) is considered a holder of an attributable interest, UNLESS the Respondent submits as an exhibit a statement establishing that an individual director or officer will not exercise authority or influence in areas that will affect the corporate Respondent or the station. In this statement, the Respondent should identify the individual by name and title, describe the individual’s duties and responsibilities, and explain the manner in which such individual is insulated from the corporate Respondent and should not be attributed an interest. Such statements should be attached as Exhibit 4 on Form 323.
A person or entity holding an ownership interest in the corporate stockholder of a corporate Respondent is considered to have an attributable interest in the Respondent ONLY IF that interest, when multiplied by the corporate stockholder’s interest in the Respondent, would account for 5% or more of the issued and outstanding voting stock of the Respondent. For example, where Corporation X owns stock accounting for 25% of the Respondent’s votes, only Corporation X shareholders holding 20 percent or more of the issued and outstanding voting stock of Corporation X have a 5% or more indirect interest in the Respondent (.25 x .20 = .05) and, therefore, are considered to have an attributable interest in the Respondent. In applying the multiplier, any entity holding more than 50% of its subsidiary will be considered a 100% owner. For such ownership structures, report on Form 323 only interests that amount to 5% or more of the issued and outstanding voting stock of the Licensee after the multiplier is applied. Where the 5% stock owner is a partnership, each general partner and any limited partner that is not insulated, regardless of the partnership interest, is considered to have an attributable interest that must be reported.
Stock subject to stockholder cooperative voting agreements accounting for 5% or more of the votes in a corporate respondent will be treated as if held by a single entity and any stockholder holding 5% or more of the stock in that block is considered a holder of an attributable interest.
If a single entity holds more than 50% of the voting stock, and a simple majority is all that is required to control corporate affairs, no other stockholder need be reported for purposes of non-biennial filings of the Ownership Report, unless that entity’s interest is attributable under the Commission’s Equity/Debt Plus attribution standard described below.
An investment company, insurance company or trust department of a bank is not considered a holder of an attributable interest, and a Respondent may properly certify that such entity’s interest is non-attributable (see Question 3(b), below), IF its aggregated holding accounts for less than 20% of the outstanding votes in the Respondent AND IF such entity exercises no influence or control over the corporation, directly or indirectly; and such entity has no representatives among the officers and directors of the corporation.
If a PARTNERSHIP: All partners, including all limited partners, are considered attributable interest holders. However, a limited partner in a limited partnership is not considered an attributable interest holder IF the limited partner is not materially involved, directly or indirectly, in the management or operation of the media-related activities of the partnership and the Respondent so certifies (see Question 3(b), below). Sufficient insulation of a limited partner for purposes of this certification would be assured if the limited partnership arrangement:
(1) specifies that any exempt limited partner (if not a natural person, its directors, officers, partners, etc.) cannot act as an employee of the limited partnership if his or her functions, directly or indirectly, relate to the media enterprises of the company;
(2) bars any exempt limited partner from serving, in any material capacity, as an independent contractor or agent with respect to the partnership’s media enterprises;
(3) restricts any exempted limited partner from communicating with the Licensee or the general partner on matters pertaining to the day-to-day operations of its business;
(4) empowers the general partner to veto any admissions of additional general partners admitted by vote of the exempt limited partners;
(5) prohibits any exempt limited partner from voting on the removal of a general partner or limits this right to situations where the general partner is subject to bankruptcy proceedings, as described in Sections 402 (4)-(5) of the Revised Uniform Limited Partnership Act, is adjudicated incompetent by a court of competent jurisdiction, or is removed for cause, as determined by an independent party;
(6) bars any exempt limited partner from performing any services to the limited partnership materially relating to its media activities, with the exception of making loans to, or acting as a surety for, the business; and
(7) states, in express terms, that any exempt limited partner is prohibited from becoming actively involved in the management or operation of the media businesses of the partnership.
Notwithstanding conformance of the partnership agreement to these criteria, the requisite certification cannot be made IF the limited partner’s interest is attributable under the Commission’s Equity/Debt Plus attribution standard described below; or IF the Respondent has actual knowledge of a material involvement of a limited partner in the management or operation of the media-related businesses of the partnership. In the event that the Respondent cannot certify as to the noninvolvement of a limited partner, the limited partner will be considered as an attributable interest holder and the interest must be reported.
If a LIMITED LIABILITY COMPANY: The Commission treats an LLC as a limited partnership, each of whose members is considered to be an attributable interest holder. However, where an LLC member is insulated in the manner specified above with respect to a limited partnership and where the relevant state statute authorizing the LLC permits an LLC member to insulate itself in accordance with the Commission’s criteria, that LLC member is not considered an attributable interest holder. In such a case, the Respondent should certify “Yes” in response to Question 3(b).
Equity/Debt Plus Attribution Standard. Certain interests held by substantial investors in, or creditors of, the Respondent may also be attributable, and the investor must be reported, if the interest falls within the Commission’s equity/debt plus (“EDP”) attribution standard. Under the EDP standard, the interest held is attributable if, aggregating both equity and debt, it exceeds 33 percent of the total asset value (all equity plus all debt) of the Respondent – a broadcast station licensee, cable television system, daily newspaper or other media outlet subject to the Commission’s broadcast multiple ownership or cross-ownership rules – AND the interest holder also holds (1) an attributable interest in a media outlet in the same market, or (2) supplies over 15 percent of the total weekly broadcast programming hours of the station in which the interest is held. For example, the equity interest of an insulated limited partner in a limited partnership Respondent would normally not be considered attributable, but, under the EDP standard, that interest would be attributable if the limited partner’s interest exceeded 33 percent of the Respondent’s total asset value AND the limited partner also held a 5 percent voting interest in another radio or television station licensee in the same market.
In some cases an interest holder may exceed the 33 percent EDP threshold without triggering attribution where the investment would enable an Eligible Entity (as that term is defined by the Commission) to acquire a broadcast station provided that: (1) the combined equity and debt of the interest holder in the Eligible Entity is less than 50 percent, or (2) the total debt of the interest holder in the Eligible Entity does not exceed 80 percent of the asset value of the station being acquired by the Eligible Entity and the interest holder does not hold any equity interest, option, or promise to acquire an equity interest in the Eligible Entity or any related entity. See In re Promoting Diversification of Ownership in the Broadcasting Services, Report and Order and Third Further Notice of Proposed Rule Making, 23 FCC Rcd 5922 (Mar. 5, 2008).
FRN Numbers. For non-biennial Ownership Reports, each Respondent must list in Question 3(a) the FRN of all persons and/or entities, which hold a direct attributable interest in the Respondent that is also attributable in the Licensee. FRN information may be located from the FCC Registration System, CORES, which is listed among the FCC E-Filing systems ((http://www.fcc.gov/e-file/).
Part (b): Respondents must indicate that the information provided in part (a) of Question 3 is complete by certifying that all equity and financial interests not reported in response to Question 3(a) are non-attributable.
Part (c): List any broadcast stations, other than those for which this Report is filed, in which the Respondent has an attributable interest. Also list any daily newspapers in which the Respondent has an attributable interest and that are located within the pertinent in-market signal contours of any broadcast stations for which this Report is filed. See 47 C.F.R. Section 73.3555. Enter the identifying information for the applicable ownership interest:
(1) For broadcast interests, enter the call sign, community of license, and Facility ID number of each station, the nature and size of the ownership interest, and the positions held into the applicable fields.
(2) For newspaper interests, enter the name of the newspaper publication and location, the nature and size of the ownership interest, and the positions held into the applicable fields.
Part (d): Indicate whether any individuals listed in Question 3(a) are related as parent-child, spouse, or siblings. If the answer is “Yes,” enter the names of the related individuals and select the applicable checkbox indicating the familial relationship.
Part (e): If the Respondent seeks an attribution exemption for any officer or director with duties unrelated to the Licensee or Permittee, select “Yes” and enter the name and title of the officer or director in the applicable fields. If the answer selected is “Yes,” attach an exhibit describing that individual’s duties and responsibilities, and explaining why that individual’s interest should not be attributed. Attach any such explanation as Exhibit 4.
SECTION II-B—Biennial Ownership Report
Question 1: Contract Information. Licensees are required to file with the Commission any contract or modification of contract relating to the ownership, control, or management of the Licensee or to its stock. See 47 C.F.R. Section 73.3613. Section 73.3613 requires the filing of all contracts of the types specified and is not limited to executed contracts, but includes options, pledges, and other executory agreements and contracts relating to ownership, control, or management.
Licensees of commercial AM, FM, full power television stations, Class A and LPTV stations should enter a listing for each contract and other instrument required to be filed under the FCC’s rules in the fields provided, including a brief description of the contract/instrument, the name of the person or organization with whom the contract/instrument is made, the date the contract/instrument was executed, and the date the contract/instrument expires. If the agreement is a local marketing agreement (LMA) or a radio joint sales agreement (JSA), or if the agreement is a network affiliation agreement, check the appropriate box; otherwise, select “Other” for other types of agreements. Each contract/instrument must be identified and listed directly in the fields provided. Enter the month and year of the date of execution, and the month and year of the date of expiration. If the agreement is perpetual or does not have a fixed expiration date, select “No Expiration Date.” For the purposes of completing Question 1, only the listings of each contract/instrument are required. Do not attach copies of the contracts/instruments to the form.
Only 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.
Question 2: Capitalization. Only Licensees and Respondents with a majority interest in (or that otherwise exercise de facto control over) a Licensee of a commercial AM, FM, full power television, Class A, or LPTV station must enter the capitalization information in Question 2. For each type of stock, enter the class of stock, indicate whether the class is voting or non-voting, and enter in the number of authorized shares in the applicable category field(s) (Authorized, Issued & Outstanding, Treasury and Unissued).
Question 3: Ownership Interests. This Question applies to Licensees of LPTV and Class A TV stations, as well as Licensees of commercial AM, FM and full power television stations. All attributable interests are reportable. As used in Question 3, an attributable interest is an ownership interest in or relationship to a Licensee which will confer on its holder that degree of influence or control over the Licensee sufficient to implicate the Commission’s ownership rules. In responding to Question 3, Respondents should review the Commission’s multiple ownership attribution policies and standards which are set forth in the Notes to 47 C.F.R. Section 73.3555, as revised and explained in Review of the Commission’s Regulations Governing Attribution of Broadcast and Cable/MDS Interests, 14 FCC Rcd 12559 (1999), recon. granted in part, 16 FCC Rcd 1097 (2000). See also Report and Order in MM Docket No. 83-46, 97 FCC 2d 997 (1984), recon. granted in part, 58 RR 2d 604 (1985), further modified on recon., 61 RR 2d 739 (1986); In re Promoting Diversification of Ownership in the Broadcasting Services, Report and Order and Third Further Notice of Proposed Rulemaking, 23 FCC Rcd 5922, FCC 07-217 (2008).
Part (a): This Question requires Respondents to enter detailed information about ownership interests by generating a series of subforms. Answer each question on each subform. The first subform listing should be for the Respondent itself. If the Respondent is not a natural person, also list each of the officers, directors, stockholders, non-insulated partners, members and other persons or entities with a direct attributable interest in the Respondent. (A “direct” interest is one that is not held through any intervening companies or entities.) In the case of vertical or indirect ownership structures, report only those interests in the Respondent that also represent an attributable interest in the Licensee for which the Report is being submitted.
List each person or entity with a direct attributable interest in the Respondent separately. Entities that are part of an organizational structure that includes holding companies or other forms of indirect ownership must file separate ownership reports. In such a structure, do not report or file separate reports for persons or entities that do not have an attributable interest in the Licensee for which the report is being submitted.
The following attributable interests are attributable and the holder of such interest should be reported in response to Question 3(a):
If a Corporation: Each officer, director, and owner of stock accounting for 5% or more of the issued and outstanding voting stock of the Licensee is considered the holder of an attributable interest and must be reported. Where the 5% stock owner is itself a corporation, each of its stockholders, directors and executive officers (president, vice-president, secretary, treasurer or their equivalents) is considered a holder of an attributable interest, UNLESS the Respondent submits as an exhibit a statement establishing that an individual director or officer will not exercise authority or influence in areas that will affect the corporate respondent or the station. In this statement, the Respondent should identify the individual by name and title, describe the individual’s duties and responsibilities, and explain the manner in which such individual is insulated from the corporate Respondent and should not be attributed an interest. Such statements should be attached as Exhibit 5 on Form 323.
A person or entity holding an ownership interest in the corporate stockholder of a corporate Respondent is considered to have an attributable interest in the Respondent ONLY IF that interest, when multiplied by the corporate stockholder’s interest in the Respondent, would account for 5% or more of the issued and outstanding voting stock of the Respondent. For example, where Corporation X owns stock accounting for 25% of the Respondent’s votes, only Corporation X shareholders holding 20 percent or more of the issued and outstanding voting stock of Corporation X have a 5% or more indirect interest in the Respondent (.25 x .20 = .05) and, therefore, are considered to have an attributable interest in the Respondent. In applying the multiplier, any entity holding more than 50% of its subsidiary will be considered a 100% owner. For such ownership structures, report on Form 323 only interests that amount to 5% or more of the issued and outstanding voting stock of the Licensee after the multiplier is applied. Where the 5% stock owner is a partnership, each general partner and any limited partner that is not insulated, regardless of the partnership interest, is considered to have an attributable interest that must be reported.
Stock subject to stockholder cooperative voting agreements accounting for 5% or more of the votes in a corporate respondent will be treated as if held by a single entity and any stockholder holding 5% or more of the stock in that block is considered a holder of an attributable interest.
If a single entity holds more than 50% of the voting stock, and a simple majority is all that is required to control corporate affairs, no other stockholder need be reported for purposes of biennial filings of the Ownership Report, unless that entity’s interest is attributable under the Commission’s Equity/Debt Plus attribution standard described below.
An investment company, insurance company or trust department of a bank is not considered a holder of an attributable interest, and a Respondent may properly certify that such entity’s interest is non-attributable (see Question 3(b), below), IF its aggregated holding accounts for less than 20% of the outstanding votes in the Respondent AND IF such entity exercises no influence or control over the corporation, directly or indirectly; and such entity has no representatives among the officers and directors of the corporation.
If a PARTNERSHIP: All partners, including all limited partners, are considered attributable interest holders. However, a limited partner in a limited partnership is not considered an attributable interest holder IF the limited partner is not materially involved, directly or indirectly, in the management or operation of the media-related activities of the partnership and the Respondent so certifies (see Question 3(b), below). Sufficient insulation of a limited partner for purposes of this certification would be assured if the limited partnership arrangement:
(1) specifies that any exempt limited partner (if not a natural person, its directors, officers, partners, etc.) cannot act as an employee of the limited partnership if his or her functions, directly or indirectly, relate to the media enterprises of the company;
(2) bars any exempt limited partner from serving, in any material capacity, as an independent contractor or agent with respect to the partnership’s media enterprises;
(3) restricts any exempted limited partner from communicating with the Licensee or the general partner on matters pertaining to the day-to-day operations of its business;
(4) empowers the general partner to veto any admissions of additional general partners admitted by vote of the exempt limited partners;
(5) prohibits any exempt limited partner from voting on the removal of a general partner or limits this right to situations where the general partner is subject to bankruptcy proceedings, as described in Sections 402 (4)-(5) of the Revised Uniform Limited Partnership Act, is adjudicated incompetent by a court of competent jurisdiction, or is removed for cause, as determined by an independent party;
(6) bars any exempt limited partner from performing any services to the limited partnership materially relating to its media activities, with the exception of making loans to, or acting as a surety for, the business; and
(7) states, in express terms, that any exempt limited partner is prohibited from becoming actively involved in the management or operation of the media businesses of the partnership.
Notwithstanding conformance of the partnership agreement to these criteria, the requisite certification cannot be made IF the limited partner’s interest is attributable under the Commission’s Equity/Debt Plus attribution standard described below; or IF the Respondent has actual knowledge of a material involvement of a limited partner in the management or operation of the media-related businesses of the partnership. In the event that the Respondent cannot certify as to the noninvolvement of a limited partner, the limited partner will be considered as an attributable interest holder and the interest must be reported.
If a LIMITED LIABILITY COMPANY: The Commission treats an LLC as a limited partnership, each of whose members is considered to be an attributable interest holder. However, where an LLC member is insulated in the manner specified above with respect to a limited partnership and where the relevant state statute authorizing the LLC permits an LLC member to insulate itself in accordance with the Commission’s criteria, that LLC member is not considered an attributable interest holder. In such a case, the Respondent should certify “Yes” in response to Question 3(b).
Equity/Debt Plus Attribution Standard. Certain interests held by substantial investors in, or creditors of, the Respondent may also be attributable, and the investor must be reported, if the interest falls within the Commission’s equity/debt plus (“EDP”) attribution standard. Under the EDP standard, the interest held is attributable if, aggregating both equity and debt, it exceeds 33 percent of the total asset value (all equity plus all debt) of the Respondent – a broadcast station licensee, cable television system, daily newspaper or other media outlet subject to the Commission’s broadcast multiple ownership or cross-ownership rules – AND the interest holder also holds (1) an attributable interest in a media outlet in the same market, or (2) supplies over 15 percent of the total weekly broadcast programming hours of the station in which the interest is held. For example, the equity interest of an insulated limited partner in a limited partnership Respondent would normally not be considered attributable, but, under the EDP standard, that interest would be attributable if the limited partner’s interest exceeded 33 percent of the Respondent’s total asset value AND the limited partner also held a 5 percent voting interest in another radio or television station licensee in the same market.
In some cases an interest holder may exceed the 33 percent EDP threshold without triggering attribution where the investment would enable an Eligible Entity (as that term is defined by the Commission) to acquire a broadcast station provided that: (1) the combined equity and debt of the interest holder in the Eligible Entity is less than 50 percent, or (2) the total debt of the interest holder in the Eligible Entity does not exceed 80 percent of the asset value of the station being acquired by the Eligible Entity and the interest holder does not hold any equity interest, option, or promise to acquire an equity interest in the Eligible Entity or any related entity. See In re Promoting Diversification of Ownership in the Broadcasting Services, Report and Order and Third Further Notice of Proposed Rule Making, 23 FCC Rcd 5922 (Mar. 5, 2008).
FRN Numbers—Biennial Reports. For Biennial Ownership Reports, each Respondent that holds an attributable interest in the Licensee must list in Question 3(a) the FCC FRN of any person or entity which holds a direct attributable interest in the Respondent that is also attributable in the Licensee. Respondents may locate FRN information from the FCC Registration System, CORES, which is listed among the FCC E-Filing systems ((http://www.fcc.gov/e-file/). For any listing that includes the name of a person or entity reported on multiple Ownership Reports, Respondents must ensure that the FRN information is consistent among all such Ownership Reports. Respondents should coordinate with each other to ensure such consistency.
Race/Ethnicity Information. Among other things, Question 3(a) seeks information as to those persons to which the Commission’s minority and female ownership policies have historically applied. In addition to gender information, the race/ethnic categories are:
a. American Indian or Alaska Native. A person having origins in any of the original peoples of North and South America (including Central America), and who maintains tribal affiliation or community attachment.
b. Asian. A person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian Subcontinent including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.
c. Black or African American. A person having origins in any of the black racial groups of Africa.
d. Hispanic or Latino. A person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish Culture or origin, regardless of race.
e. Native Hawaiian or Other Pacific Islander. A person having origins in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands.
f. White. A person having origins in any of the original peoples of Europe, the Middle East, or North Africa.
g. Two or More Races. Select if applicable.
Part (b): Respondents must indicate that the information provided in part (a) of Question 3 is complete by certifying that all equity and financial interests not reported in response to Question 3(a) are non-attributable.
Part (c): List any broadcast stations, other than those for which this Report is filed, in which the Respondent has an attributable interest. Also list any daily newspapers in which the Respondent has an attributable interest and that are located within the pertinent in-market signal contours of any broadcast stations for which this Report is filed. See 47 C.F.R. Section 73.3555. Enter the identifying information for the applicable ownership interest:
(1) For broadcast interests, enter the call sign, community of license, and Facility ID number of each station, the nature and size of the ownership interest, and the positions held into the applicable fields.
(2) For newspaper interests, enter the name of the newspaper publication and location, the nature and size of the ownership interest, and the positions held into the applicable fields.
Part (d): Indicate whether any individuals listed in Question 3(a) are related as parent-child, spouse, or siblings. If the answer is “Yes,” enter the names of the related individuals and select the applicable checkbox indicating the familial relationship.
Part (e): If the Respondent seeks an attribution exemption for any officer or director with duties unrelated to the Licensee, select “Yes” and enter the name and title of the officer or director in the applicable fields. If the answer selected is “Yes,” attach an exhibit describing that individual’s duties and responsibilities, and explaining why that individual should not be attributed an interest.
Question 4: Respondent’s Interests Held. Each Respondent other than a Licensee should list the name and FRN of all entities in which the Respondent holds a direct attributable ownership interest, where that listed entity has an attributable ownership interest in the Licensee of the stations associated with the Report. Respondents may locate FRN information from the FCC Registration System, CORES, which is listed among the FCC E-Filing systems ((http://www.fcc.gov/e-file/). For any listing that includes the name of an entity reported on multiple Ownership Reports, Respondents must ensure that the FRN information is consistent among all such Ownership Reports. Respondents should coordinate with each other to ensure such consistency. Licensees should select “N/A” in response to this question.
Question 5: Licensee Ownership Structure Chart. Licensees must include as an attachment a chart or similar document showing the Licensee’s vertical or other ownership structure including the Licensee and all persons/entities that have attributable interests in the Licensee. Any chart format is acceptable provided that it (a) meets the technical requirements for the submission of attachments via the Commission’s online filing system; and (b) accurately depicts the Licensee’s complete ownership structure, as described above. Non-Licensee Respondents filing separate Form 323 Biennial Reports should select “N/A” in response to this question. If the ownership structure of the Licensee does not include holding companies or other forms of indirect ownership, the Licensee should select “N/A” in response to this question.
SECTION III—Certification (All Respondents Must Complete)
The person certifying the accuracy of the information in this report must be the individual Licensee or Permittee, a general partner in the Licensee or Permittee partnership, or an appropriate officer in the Licensee or Permittee corporation or association. If this report is filed for a Respondent other than the Licensee or Permittee, the person certifying the accuracy of the information must be a general partner in the Respondent partnership or an appropriate officer in the Respondent corporation or association. The date of the signature must (1) be no earlier than Oct. 1 of the filing year when filing a Biennial Ownership Report (and no earlier than Nov. 1, 2009 in the case of the initial filing); or (2) be no more than 60 days prior to the date of filing when filing a non-biennial Ownership Report..
FCC NOTICE REQUIRED BY THE PAPERWORK REDUCTION ACT AND THE PRIVACY ACT
We have estimated that each response to this collection of information will take 2.5 to 4.5 hours. Our estimate includes the time to read the instructions, look through existing records, gather and maintain the required data, and actually complete and review the form or response. If you have any comments on this estimate, or on how we can improve the collection and reduce the burden it causes you, please write the Federal Communications Commission, AMD-PERM, Paperwork Reduction Project (3060-0010), Washington, DC 20554. We will also accept your comments via the Internet if your send them to [email protected]. Please DO NOT SEND COMPLETED APPLICATIONS TO THIS ADDRESS. Remember - you are not required to respond to a collection of information sponsored by the Federal government, and the government may not conduct or sponsor this collection, unless it displays a currently valid OMB control number or if we fail to provide you with this notice. This collection has been assigned an OMB control number of 3060-0010.
The FCC is authorized under the Communications Act of 1934, as amended, to collect the personal information we request in this form.
[Privacy Act Statement – To Be Determined]
THE FOREGOING NOTICE IS REQUIRED BY THE PAPERWORK REDUCTION ACT OF 1995, P.L. 104-13, OCTOBER 1, 1995, 44 U.S.C. 3507 AND the Privacy Act of 1974, Public Law 93-579, December 31, 1974, 5 U.S.C. Section 552a(e)(3).
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Section I - General Information
1. |
Legal Name of the
Respondent |
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Street Address (1) |
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Street Address (2)
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City |
State or Country (if
foreign address) |
ZIP Code |
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Telephone Number (include
area code) |
E-Mail Address (if
available) |
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FCC Registration Number: |
Call Sign |
Facility ID Number
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2. |
Contact Representative |
Firm or Company Name |
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Street Address (1)
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Street Address (2)
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City
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State or Country (if foreign address) |
ZIP Code |
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Telephone Number (include
area code) |
E-Mail Address (if
available) |
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3. |
Nature of Respondent (See Instructions for definitions)
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4. |
If this application has
been submitted without a fee, indicate reason for fee exemption
(see 47 C.F.R. Section 1.1114): |
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5. |
All of the information
furnished in this Report is accurate as of
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6. |
Purpose. This Report is filed for: (choose one) |
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a.
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b.
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c.
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d.
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e.
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f.
File
No.:
If an Amendment, submit as an Exhibit a listing by Section and Question Number the portions of the previous Report that are being revised. EXHIBIT:
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7. |
Licensee and Station Information. The stations listed below are all licensed to the following person or entity:
This Report is filed for the following stations:
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8. |
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Licensee
(Date
entered must (1) be no earlier than Oct. 1 of the filing year when
filing a Biennial Ownership Report (and no earlier than Nov. 1,
2009 in the case of the initial filing); or (2) be no more than 60
days prior to the date of filing when filing a non-biennial
Ownership Report.)
Validation and Resubmission of a previously filed Biennial Report
(certifying no change from previous Report)
Section II-A – Non-Biennial Ownership Information
1. |
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2. |
Capitalization (Only Licensees, Permittees, or entities with a majority interest in or that otherwise exercises de facto control over the subject Licensee shall respond.)
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3. |
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Section II-B – Biennial Ownership Information
1. |
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2. |
Capitalization (Only Licensees or entities with a majority interest in or that otherwise exercise de facto control over the subject Licensee shall respond.)
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3. |
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4. |
Respondent’s Interests Held. Each Respondent other than a Licensee should list the name and FCC Registration Number of all entities in which the Respondent holds a direct attributable ownership interest, where that listed entity has an attributable ownership interest in the Licensee of the stations associated with the Report. Licensees should select “N/A” in response to this question.
For any listing that includes the name of a person or entity reported on multiple Ownership Reports, ensure that the FRN information is consistent among all such Ownership Reports. Respondents should coordinate with each other to ensure such consistency.
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5. |
Organizational Chart. LICENSEES ONLY: Attach a flowchart or similar document showing the Licensee’s vertical ownership structure including the Licensee and all persons/entities that have attributable interests in the Licensee.
Non-Licensee Respondents should select “N/A” in response to this question. |
EXHIBIT:
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SECTION III - CERTIFICATION
I certify that I am
(Official Title)
of
(Exact legal title or name of Respondent)
and that I have
examined this Report and that to the best of my knowledge and belief,
all statements in this Report are true, correct and complete.
(Date
of the signature below must (1) be no earlier than Oct. 1 of the
filing year when filing a Biennial Ownership Report (and no earlier
than Nov. 1, 2009 in the case of the initial filing); or (2) be no
more than 60 days prior to the date of filing when filing a
non-biennial Ownership Report.)
Signature |
Date |
Telephone Number of
Respondent (Include area code)
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WILLFUL FALSE STATEMENTS ON THIS FORM ARE PUNISHABLE BY FINE AND/OR IMPRISONMENT (U.S. CODE, TITLE 18, SECTION 1001), AND/OR REVOCATION OF ANY STATION LICENSE OR CONSTRUCTION PERMIT (U.S. CODE, TITLE 47, SECTION 312(a)(1)), AND/OR FORFEITURE (U.S. CODE, TITLE 47, SECTION 503).
FCC 323 Instructions
| File Type | application/msword |
| File Modified | 2009-10-16 |
| File Created | 2009-10-16 |
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