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John Garziglia

What About tribal Preference?


I appreciate your article, and interpretation of the new rule, but it raises an interesting dilemma for us.  Some of our stations broadcast on the Flathead Indian Reservation in western Montana, where classified employment ads regularly appear in the newspapers that boldly state the job opening is "TRIBAL PREFERENCE", which clearly represents a racially motivated advantage to applicants.  We do not air these on the radio, and have not been asked to, but we also cannot broadcast "gaming" or legal "lottery" ads since it is only allowed on the reservation in tribally owned gaming facilities.  Anywhere else in the state, these ads are fine.  Is there legal clarification for these discrimination issues on tribal lands where discrimination is clearly authorized and apparently legal?

Dennis L. Anderson
Anderson Radio Broadcasting, Inc.

John Garziglia:  Dennis, as you have no doubt been reading, the FCC's new foray into advertising nondiscrimination has provoked many questions and much angst with radio broadcasters.  First, I would like to review what the FCCs policy on advertising nondiscrimination is not.

First, I would like to review what the FCCs policy on advertising nondiscrimination is not. The FCC's advertising nondiscrimination requirements, adopted in 2007 and now being enforced through a license renewal application certification, are to attack one issue and one issue only -- that of the "no urban" and the "no Hispanic" dictates issued by some advertisers.  To the extent that the FCC believes that prevalence of these dictates is diminished as a result of its new policy, the FCC will likely consider its efforts a success.

The FCC's attempt to eliminate NUDs and NHDs should not be confused with any of the FCC's other nondiscrimination rules, nor with the FCC's somewhat schizophrenic policies on Native Americans, tribal lands and certain tribal lands being regarded as foreign nations.  The FCC's rules and policies with respect to the advertising of gambling activities by Native Americans on tribal lands and the variances of what can, and cannot, be advertised, bear no relation to NUDs and NHDs.  Further, discrimination in employment and hiring, while peripherally resembling NUDs and NHDs in its malevolent effects, is a different issue than NUDs and NHDs, particularly if the radio station is the bad actor in hiring.

So, getting back to NUDs, NHDs and nondiscrimination, yes, radio stations have to be very careful of not honoring NUDs and NHDs as the FCC has made it clear that it regards such dictates as pernicious advertising practices it intends to eliminate. 

The challenge for station owners is educating its sales and management staff to recognize an NUD or NHD when presented with one.  An NUD can be as simple as an email from an advertiser or ad agency stating please send rates on your AC, CHR and Country but not your Urban.  What should a sales manager or sales person do when receiving such an email or call?  The email or call should immediately be brought to the attention of corporate or ownership, so that corporate or ownership can deal with it, probably with a phone call to legal counsel. 

As time goes by, it will become clearer as to how the FCC intends to enforce its advertising nondiscrimination policies.  For now, a radio station licensee must, in addition to including nondiscrimination clauses on all advertising contracts, educate its sales force to be absolutely sensitive to any request for rates, or for any buy, that attempts to exclude an urban or Hispanic formatted station from an advertising buy.  Otherwise, letting an NUD or NHD email or call be responded to in the normal course of business could subject the station to a significant challenge at license renewal time. 

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