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Broadcasters Catch a Break on License Renewal Advertising Certification

Pity the post office. Even its federal brethren have abandoned it. Today the FCC announced that, with the beginning of the broadcast license renewal cycle fast approaching, it will not be sending its traditional postcard reminders to broadcast licensees. It did say, however, that it would email reminders to broadcasters for which it has email addresses in an effort to minimize the number of enforcement actions it will need to take against those failing to file on time. The base fine for a late-filed renewal is $3,000, but because most stations that miss the filing deadline have their license expire before they realize their mistake, an additional $4,000 fine for unauthorized operation (for a total of $7,000 per station) is nearly automatic.

While those of us following the FCC’s enforcement actions have noticed a fairly dramatic upward trend in the size of FCC fines (noted in an earlier post), the Media Bureau is to be commended for taking steps to assist broadcasters in meeting their filing obligations rather than just fining those that don’t.

To accomplish this, the FCC today released a Public Notice announcing the availability of its new license renewal form, discussing the changes found in it, and providing a link to the state-by-state schedule of license renewal deadlines. The idea is to make the information readily available to broadcasters, though not by way of their mailboxes. Make no mistake, however, as the Public Notice reminds us, that broadcasters are responsible for meeting their own filing deadlines, and cannot defend a failure to timely file by claiming that the FCC didn’t remind them.

More importantly, the Public Notice is not just a procedural announcement. The FCC took the opportunity to address a critical question regarding its new requirement that license renewal applicants certify that their “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.” This new certification was adopted as a way of preventing advertisers and ad agencies from engaging in “no urban/no Spanish” ad placement practices. In creating the certification requirement, the FCC once again used its authority over broadcasters to force a change in the conduct of those for which the FCC lacks jurisdiction (in this case, advertisers).

In an early February post, our own Dick Zaragoza raised a number of issues that broadcast license renewal applicants need to consider before making this new certification. An additional source of concern is that the FCC had not made clear how far back the certification must reach. The FCC adopted the requirement in 2008, but didn’t provide a specific date by which nondiscrimination clauses had to be incorporated into broadcasters’ advertising contracts. Many communications lawyers told their clients that the requirement had gone into effect in mid-2008, while others, including myself, noted that it could not go into effect until the FCC had taken some additional procedural steps to effectuate it, but when those steps would be completed was impossible to predict.

Thankfully, today’s Public Notice answers that three year old question, stating that the certifications must cover a period starting today, March 14, 2011, to the date a station files its license renewal application. Stations that successfully implemented this change anytime between 2008 and now will be able to make the necessary certification, and stations that were frozen by uncertainty need to implement it immediately or face the consequences at renewal time. While the license renewal process can be a stressful one, particularly for those who barely remember filing their last renewal application eight years ago, the Media Bureau today helped broadcasters by eliminating at least some of the uncertainty that can make it so stressful.