Updated: REC Advisory Letter #1: LPFM stations carrying network programming from "Relevant Radio"

Disclaimer: The following advisory did not originate from an attorney nor was reviewed by an attorney.  This advisory is based on REC’s interpretation of the rules and regulations of the Federal Communications Commission and the Communications Act of 1934 as amended. Those entities that may feel that they would be impacted by this advisory should contact a bona-fide FCC attorney for legal advice.  This advisory should not be construed as legal advice. By following this advice, you release REC Networks and its principals of any liability.

“Relevant Radio” is the brand name of a radio service operated by Immaculate Heart Radio (IHR).  Relevant Radio is a 24-hour Catholic programming service that provides a noncommercial programming source to affiliated stations across the country as well as through digital delivery.  IHR, operating as Relevant Radio, Inc. owns several dozen full-service AM and FM broadcast stations and has been commended in the past by REC for preserving the legacy call letters of the stations that they acquire, including the infamous KHJ, Los Angeles.  A couple of years ago, IHR had converted their stations from noncommercial educational to commercial and in their markets have been selling time.  This, while maintaining a noncommercial stream for affiliated stations not owned by IHR. 

For noncommercial stations, IHR/Relevant Radio offers three “commitment” plans:

• Option 1 allows for stations that carry Relevant Radio during all hours of broadcasting (24/7 for FM stations) with a 50% commission on all donations collected by pledges during pledge drives.
• Option 2 is for stations that carry 6 hours per day of programming including some drive time programming.  Option 2 also calls for a 50% commission on donations collected by pledges during pledge drives.
• Option 3 allows for stations take programming “a la carte” and does not provide for any compensation of collected pledges.

REC is concerned that Options 1 and 2 may cause LPFM stations to violate §73.860(e).

§73.860(e) of the Commissions Rules specifically states that no LPFM licensee may enter into an operating agreement of any time, including time brokerage or management agreements, with either a full power broadcast station or another LPFM station.

As IHR holds several full-service broadcast licenses, we are concerned that any LPFM stations that carry IHR/Relevant Radio programming, especially those operating under commitment options 1 and 2 may be in violation of §73.860(e).  The remuneration offered to stations could be seen as a prohibited operating agreement.  As option 3 does not involve any remuneration to the station (other than free programming), we don’t see this to be as much of an issue.  Again, we would advise any LPFM stations to contact their attorney for additional guidance.  Attorneys with questions can consult with REC at no fees.

We note that these types of agreements are permitted between IHR and full-service noncommercial educational broadcast stations as they do not have this unique rule, which was intended to preserve an exclusive amount of ownership diversity and localism in the LPFM service.

What about EWTN?

Eternal Word Television Network (EWTN) founded by Mother Angelica is a worldwide Catholic radio and television programming service.  Unlike IHR, we are not aware of any attributable full-service broadcast ownership, either commercial nor noncommercial, by EWTN.  EWTN is the licensee of international broadcast (shortwave) station WEWN, Vaindiver, AL.  As determined in the application for Strategic International Ministries, licensee of international broadcast station KVOH, Rancho Simi, CA, an international broadcast station is not a domestic media service within the realm of the Media Bureau but instead is an International Bureau service.  Therefore, it can be concluded that WEWN is not considered a full-service broadcast station in the eyes of §73.860(e). 

REC is not aware of the specifics of the affiliation agreements that EWTN holds with LPFM stations. Even if those agreements involve remuneration from the program provider to an LPFM station, we don’t see any issues with §73.860(e) as there would not be a time brokerage or operating agreement with a full-service broadcast station.

While REC is concerned about the proliferation of EWTN programming on a radio service that was intended to foster additional localism and diversity, there are no known issues from a regulatory standpoint for most stations to carry EWTN programming.  One exception is a small number of stations that are subject to their pledges under §73.872 of the rules (8 hours a day of local programming). Those specific stations may carry up to 16 hours a day of EWTN programming but must maintain 8 hours of programming per day that originate from within 10 or 20 miles of the transmitting antenna.

What about Pacifica?  They are a licensee.

LPFM stations may enter into affilliation agreements.  In the case of Pacifica, they are not paying the stations to carry the programming.  Instead, the stations pay Pacifica Network on an annual basis to be affiliates and to have access to programming.  This is why we do not have an issue with Relevant's "option 3". Where Relevant crosses the line is where they promise remuneration (payment) to LPFM stations in exchange for the carriage of their programs.

Reminder about underwriting/ads from political campaigns

Recently, Relevant Radio had advised their affiliates that their owned and operated stations (which are commercial) will be playing paid political advertisements as required by Commission policies.  It is our understanding that these commercials will not be carried over the programming stream intended for noncommercial educational station affiliates.

LPFM and full-service NCE stations are reminded that paid political advertising (including those sounding like underwriting announcements) are prohibited under Section 399b of the Communications Act and any station endorsement for or against a candidate for public office is a violation of Section 399 of the Communications Act and endorsements may also be considered a violation of IRS tax codes and state nonprofit law.  We do also suggest that LPFM and NCE stations consult their attorneys if they are concerned if the 24-hour networks they carry provide endorsements for candidates.

Stations should log any attempts by political campaigns to obtain airtime to note it in their political file.

REC has reached out to Relevant's staff member who handles affiliate relations to address these concerns.  If we get any response, we will update this advisory.

Updated 10/14/2020 10:55AM EDT:

REC has received word that Relevant has notified their affiliates that they will be filing applications to modify their licenses to change from commercial to noncommercial educational broadcast stations and therefore will no longer carry commercial advertising on their owned and operated stations. We feel that some of this may be backlash from the stations being required to carry paid political ads under federal regulations. This only means that their owned and operated stations will no longer carry commercials, like their noncommercial affiliates.  As long as Relevant continues to offer incentives to LPFM stations such as Commitment Options 1 and 2, our concerns regarding §73.860(e) compliance still exists and that part of our advisory still stands.  As previously mentioned, please consult your attorney for legal advice on this issue. 

This was an advisory from REC Networks based on our interpretation of federal regulations.  Prior to making any decisions based on the receipt of this advisory, REC strongly suggests that you consult an attorney as this advisory document does not constitute legal advice.