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FCC clarifies non-discrimination certification requirements


The FCC has released a Public Notice clarifying its broadcast station advertising agreement non-discrimination certification requirements.

Most importantly, the FCC states that the time period to which the certification will apply is from March 14, 2011 going forward.

Texas stations should note that if advertising sales agreements for broadcast time do not now contain non-discrimination clauses, it is essential that such clauses be added to all future sales agreements.

John Garziglia, attorney with TAB Associate Member law firm Womble Carlyle Sandridge & Rice, offers the following language to cover stations with respect to the FCC?s requirements:

?The parties to this advertising agreement affirm that nothing in this agreement, or any of the actions, benefits and obligations relating to it, discriminate in any way on the basis of race or ethnicity.?

Garziglia said in the license renewal application itself, this is the certification that each licensee will be required to state:

Non-Discriminatory Advertising Sales Agreements: Licensee certifies that its advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the licensee contain nondiscrimination clauses.

The instructions to the License Renewal Application (Form 303-S) state the following:Item 7:

Non-Discriminatory Advertising Sales Agreements: Applicants for renewal of commercial stations are required to complete the certification that their advertising agreements do not discriminate on the basis of race or ethnicity and that all such agreements contain nondiscrimination clauses. See Promoting Diversification of Ownership in the Broadcasting Services, Report and Order and Third Further Notice of Proposed Rulemaking, 23 FCC Rcd 5922, 5941-42 (2008); see also Third Erratum, 75 FR 27199 (May 14, 2010). Prohibited discriminatory practices include ?no urban/no Spanish? dictates. Broadcasters must have a reasonable basis for making this certification. If the response to Item 7 is ?no,? please attach an exhibit explaining the persons and matters involved and why the matter is not an impediment to a grant of this application.

Even though the FCC?s prior pronouncements had been unclear about when the requirement for this type of language in advertising agreements commenced, the Public Notice makes it clear that it is required as of March 14, 2011.
The FCC?s requirement applies to all advertising sales agreements whether local or agency buys.
Stations should be certain that language similar to above is somehow a part of any agreement or other understanding for the purchase of broadcast advertising time.
If orders are place via an exchange of e-mail, then stations should insure that a non-discrimination clause is contained somewhere in the e-mail exchange.
If orders are placed over the phone or orally, then stations should be certain that in some written exchange between the station and the advertiser there is a non-discrimination clause.

Question? Contact TAB's legal hotline or call (512) 322-9944.

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