Broadcasters take note: the Federal Communications Commission has revised the license renewal application (Form 303-S) that you must file with the FCC during the upcoming license renewal cycle, which begins on June 1, 2011 for radio stations.  Among other things, these revisions will require broadcasters to disclose more detailed information about ownership, nondiscrimination policies and operating schedules during the license term.  Given the legal risks associated with making inadequate or improper disclosures to the FCC, it is important to become familiar with these new requirements so that the broadcaster can submit an accurate renewal form. 

One key revision is in the ownership disclosure.  The broadcast licensee now must disclose all parties with an “attributable” interest in the licensee in light of the FCC’s Equity Debt Plus standard (“EDP”).  Under this standard a party is deemed to have an attributable interest in a licensee if that party has a combined debt and equity interest in the licensee of more than 33 1/3% and that party holds an attributable interest in another station in the same market.  Licensees should be familiar with the EDP standard because it has been a requirement on assignment and transfer applications for several years.

In addition, the revised renewal application includes some new certifications that licensees should give careful consideration:

• Licensees must certify that their advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements contain nondiscrimination clauses.  It is unclear what the FCC considers acceptable language for inclusion in such agreements (or why the certification appears to exclude discrimination based on sex).
• Licensees must certify that the broadcast station has not been silent or operating for less than its permitted operating hours for more than 30 consecutive days.  If the licensee cannot make this certification, it must submit an exhibit specifying the exact dates during the license term when the station was silent or operating for less than the minimum hours.  What is unclear is whether a station operating with reduced power but still on the air would need to submit an exhibit.

Broadcasters should review their station operations to make sure they can check “yes” to the two new certification requirements.  Expect the FCC to review carefully any application where the applicant cannot make these certifications -- and to impose forfeitures or other penalties, where appropriate.

The revised renewal application eliminates the requirement that broadcasters include an exhibit to demonstrate compliance with the FCC’s maximum permissible radio frequency (“RF”) exposure limits.  Licensees must still certify that their broadcast facilities comply with the FCC’s maximum permissible RF limits.

The new Form 303-S reflects developments since the FCC last updated the renewal application in September 2009.  The new form will become effective on March 14, 2011.  Licensees must use the revised form when filing their renewal applications between June 1, 2011 and April 1, 2014