For legal purposes, any person who is not a United States citizen, whether through birth or naturalization is considered an "alien". This includes foreign nationals who have obtained legal status to remain in the country such as being a permanent resident (green card), a valid visa or through some form of temporary protected status. The term "alien" in this context is not limited to those who either entered the country illegally (including DREAMers) or overstayed their visas.
Section 310(b)(3) of the Communications Act states in part that no broadcast licensee shall be granted to or held by any corporation with more than one-fifth (20%) of the capital stock is owned of record or voted by aliens or their representatives.
Further, in an unpublished decision, the Media Bureau had determined that in many cases, each member of a nonprofit license board has one vote, which means that the voting would be split equally among the individual board members. Such equal distribution of the voting power among the individual board members is consistent with the lack of stock or equity ownership of the nonprofit by the individual governing board members. We have seen cases in the past where the alien ownership rules have been circumvented by claiming that for a 3 member board, the two US citizens on the board would each have 40% of the vote and the one non-citzen would have 20% of the vote. REC has historically filed objections against these arrangements. No case has ever made it far enough for the Commission to make a decision (either the application is dismissed for other reasons or the applicant withdraws).
Based on these past findings, any NCE/LPFM nonprofit organization with 4 board members or less may not have a non-US citizen (alien) on their board as a party to the application.
Boards with 5 or more members may have one or more non-US citizens (aliens) on their board based on the size of the board:
- If there are 5, 6, 7, 8 or 9 total members on the board, only one can be a non-US citizen.
- For boards with 10 through 15 total members, two can be non-US citizens.
- No matter what, the percentage of the board members (based on physical persons) who are non-US citizens cannot exceed 20.0% of the overall board's physical persons.
There are methods in law to be able to exceed the 20% threshold. However, this is an extensive process that includes consent from the Executive Branch (Department of Homeland Security gets involved). REC provides no information on that process and would refer you to a qualified attorney to address that.
