New Renewal form

[TomT]

A number of us have license renewals due next year--ours is in June. The new renewal form is out, see article and a link to the form here:

http://www.commlawblog.com/

One of the new requirements is that you must certify that the station's "advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the station include nondiscrimination clauses."

Of course, if you want to keep your license the only safe answer is "Yes."

All kinds of questions arise:

1. Typical small station "advertising agreement" is a hand shake deal. Where do you put the nondiscrimination clause?

2. The Agencies (who started this mess because some Black station owners whined they were shut out of buys) mostly communicate by phone or e-mail. They ask for rates and avails, we send them the info, they send back an order with a schedule and a link to an FTP site for spot download. Where do you put the boilerplate?

3. What is an "advertising sales agreement?" We run barter programming, with embedded spots.
Is the agreement to carry this program an "advertising sales agreement?" Same thing with network affiliation agreements,where there is an agreement to carry commercials. Typically both agreements are generated by the syndicator, not the station.

4. Are there not First Amendment issues here? (Yes, advertising is covered by the first amendment, although not as broadly as other forms of speech). What if a cluster owns a Spanish language station--and offers commercial packages for ROS spots on one or all of the stations in the cluster (i.e., the infamous "one day sales"). Jason Gonsalves buys a package, but wants all the spots to run on the Spanish language station (in Spanish) for his "Restaurante Mexicana." Ding Ding Ding!!! Discrimination!

5. What about the right to reject advertising? Mr. Chen owns the pussycat lounge--he wants to buy spots in the "family friendly" AC morning show for his "Girls Night Out Wet T Night." Are we discriminating against him or his business when we reject the spot?

(We had a call recently from a fellow wanting rates, he rep'ped Ashley Madison.Com. Never got back to him on that. Yes, I know what that site is about--read about in the Wall Street Journal.
Office staff still doesn't believe me, though.)

Comments on the form are due December 13. Not that anyone at the Commission really cares.
Bow down and kiss our ring, peasants.

 

[TVradioguru]

For specifics, you should consult your legal counsel for guidance rather than a Internet discussion board.

In general, the certification that you don't discriminate against advertisers because of any racial bias is the idea. Sure you can probably come up with small examples where the letter of the certification could be questioned, but that's what lawyers are for. To be honest in reading your post, I found myself questioning whether your points were indeed rolled around legitimate concerns of compliance within the certification, or some sort of personal political agenda. Your particular reference to a "Black station", caused me to question your motivation.

As to your comment about certification when running barter programming, I believe the certification is based on YOUR selling of advertising within that programming, not those of the syndicator or network. You do sell within the local avails don't you?

 

[TomT]

And you are neither in sales nor management. My point is to bring up awareness of this before somebody gets stung. Easy to be smug about it when you don't understand the mechanics of the day to day operation of a station.

Just today we had a computer crash & had to call Katz to print off an order. Katz e-mail us that a grocery chain sent an order. We log into the Katz secured site using our assigned password, checked the new orders, and tried to print--then the computer crashed. Logging in again we couldn't print the schedule because their system thought it had already been printed. So we called Katz, and they were able to reset and get the order printed.

We receive orders every week from Katz off their secured site, (usually without the accompanying computer glitches). Now--tell me where in this whole process we are to place this "certification" in order to alert the agency and advertiser that we are not allowed to accept a "discriminatory" order? (Katz, in case you don't know, represents our station, not the advertiser. They contact the agency.)

2nd point. Barter programming. First year contracts law(which I remember as being heavy on UCC, but anyway>>): The essence of a bartered programming agreement is that the station exchanges air time for the airing of commercial announcements supplied by the syndicator, in return for the right to air the syndicated programming. Put another way, this is a sale of advertising time, with the compensation being the right to air the syndicated programming. Had we sold 3/ :30 second spots in the show for $30, and the syndicator charged us $30 for the right to air the program, there would be no real difference--it's still a "sale" of advertising time. However, since the complete agreement is encompassed in that syndication agreement (not in two separate contracts), we get into the question of the boilerplate non-discrimination clause. We don't draw up the contract, the syndicator does.

The same problem exists in all matter of routine contracts for both non-wired and wired network programs where the agreement includes carriage of the network spots. Think professional sports nets, for example. You have a Class A in Podunk--you are going to get the NY Yankee Baseball net to re-write their contract? Yeah, right.