NOTARIZATION OF BROADCAST INVOICES
BCCA has conducted an investigation into the State Laws concerning notarization and the industry practice of notarizing broadcast invoices. It is now apparent that what most of the industry considers to be notarization of an invoice, is not! The method commonly used to notarize broadcast invoices is deficient since the legal requirements are not being met. Most importantly, since the industry practice is NOT proper notarization, it adds no validity or legality to broadcast invoices.
BCCA, therefore, for all the following reasons, strongly recommends that "notarization" of broadcast invoices be discontinued.
The custom of notarizing broadcasting invoices began when most stations were small. A station manager had personal knowledge of the amount, time and nature of the various broadcast spots. Invoices often were manually created. The person who created the invoice, (usually, the station manager) was able to attest to the facts surrounding the actual broadcast of specific advertisements. That person would then sign the invoice in the presence of a notary public who would confirm the authenticity of the signature.
In todays world of growth and computerization, the process of preparing invoices has become more complex. It has become virtually impossible for a station manager or any other individual to personally monitor or validate every spot that has been run. Most invoicing is automated and the person generating the invoice has no personal knowledge of the contents of the invoice.
Yet, the practice of having a station manager or other executive sign the invoice continued. A notary public still confirmed the authenticity of the signature, but the person signing usually had no personal knowledge of the invoice contents.
As the number of invoices grew, a pre-printed statement was placed on the invoices that warranted the accuracy of the information contained in the invoice. A facsimile signature replaced the real thing. That facsimile signature was then "notarized".
This type of "notarization" violates state laws, and adds nothing to the legality of the invoice.
THE CURRENT EFFORT
BCCA beganto call for an end to the practice of notarizing broadcast invoices in 1988. It was becoming more and more evident that the procedures used were meaningless.
Even in those rare cases when an original signature is placed on an invoice, the notary never sees the person signing the invoice. The use of a facsimile signature is the rule rather than the exception. The routine exercised by many notaries in this industry is merely to impress a notary stamp on an invoice with no adherence to the legal requirements for notarization, little regard for any statements contained therein and less knowledge as to the signer of the statement.
More often than not, invoices are saved in batches of up to several hundred and given to a notary to stamp and sign.
Since each state has its own rules governing notarization, BCCA contacted the office of the Secretary of State for each state, the National Notary Association and various counsel to find out those rules. BCCA received responses from the Secretaries of State of twenty-nine (29) states as well as the National Notary Association.
The consensusamong the state officials who responded to BCCAs inquiries is that a notary stamp or seal merely verifies the signature and identity of the signer. Each one emphasized that the appending of a notary seal to a document does not attest to the accuracy of the data contained in that document.
The conclusion is that incorrectly performed or incomplete acts by a notary are improper.
Some of the specific replies received are quoted below:
California: "If the involvement of the notary is limited to completing a certificate of acknowledgment or a jurat, there should not be a problem. However, if the notary is purporting to certify to the accuracy of the information contained in the invoice, it is contrary to California law."
Colorado: " a notary who continues stamping, signing, clomping risks commission revocation proceedings This office would therefore endorse any measures by the Broadcast Credit Association to eliminate the industry requirements and practices that lead to questionable notarizations."
Illinois: "If notarization is required on the broadcasting invoice, it should be first signed by an officer of the company and then the notary merely attests to the validity of that signature."
Kansas: "You have asked about merely placing a notary seal and signature on a document without any notarial certificate such an act is not specifically prohibited, but neither does it constitute any of the expressly authorized duties What you have asked about is not notarization and not required by law."
Louisiana: "If, as you say, the advertisers are interested in only the accuracy of the invoices, and not the genuineness of signatures then I would agree that there is little point in having such invoices notarized."
Michigan: "The only assurance given by notarization of such a document, would appear to be to certify as to the signature, not as to the contents of the document."
Mississippi: "Based on statutes and the absence of any law pertaining to notarization of Broadcast invoices, it is the opinion of this office that the Notary Public law of Mississippi only requires the Notary to positively identify the person acknowledging a document. The act of the notary public does not validate any document or make it legal."
Nebraska: "You will note that the person attesting to the invoice must personally appear and sign in the presence of the notary."
New Jersey: " be advised that a notary stamp does nothing to authenticate a document, nor does it do anything to authenticate any prices which may be included in a document."
New York: "Since the notarization of broadcasting certificates is not expressly authorized by statute, the notary notarizing invoices without special knowledge of the truth of such certificate may be performing a disservice and perhaps exceeding his/her authority."
Oregon: " notarization does not guarantee the truth or accuracy of statements in a document Notarization does not legalize or validate a document."
Pennsylvania: " since the purpose of placing a notarial seal on a broadcast invoice is to guarantee the authenticity of an individuals signature and not to certify the accuracy of commercials aired, I would suggest that you contact your attorney concerning the continuation of this practice."
Tennessee: "Attestation by a notary public is simply the witnessing of the signature the notarization of an invoice or bill, would stand for no more than the witnessing of the signature."
Texas: "If the procedures are too cumbersome considering the volume of work, then the purpose of the notarization needs to be examined and a decision on whether to continue requiring the document to be notarized is required."
Vermont: "Notarization does not guarantee accuracy or even truthfulness."
W. Virginia: "The only purpose for a notary is to certify that the signature of the person signing the document is a true signature and not a forgery."
Additionally, the National Notary Association, Commenting on the broadcast industry procedure has stated:
IT IS IMPROPER TO NOTARIZE A FACSIMILE SIGNATURE. IT IS IMPROPER TO USE A NOTARY SEAL TO CERTIFY THE FACTS IN A DOCUMENT. IT IS IMPROPER FOR A NOTARY MERELY TO STAMP, SIGN AND DATE A DOCUMENT. AND IT IS HIGHLY IMPROPER FOR A NOTARY TO NOTARIZE WITHOUT THE PRESENCE OF THE PURPORTED SIGNER.
WHAT IS NOTARIZATION?
There arelegal criteria for proper notarization that have been overlooked. A notary public is defined as an officer whose duty is to attest to the genuineness of any deeds or writings in order to render them available as evidence of the facts therein contained. A notary public is authorized by state law to administer oaths and affirmations; to take affidavits and depositions and to receive and certify acknowledgments. A duty is imposed upon a notary public making a certificate to ascertain the truth of the matters in relation to which he certifies.
There are three (3) primary types of documents which must be notarized in most states:
An Affidavit is any voluntary statement (reduced to writing), by a person having personal knowledge of the facts, given under oath before some person authorized to administer an oath a notary. As a result of the administration of that oath, the affidavit becomes a sworn recital of facts and events which, standing alone, constitutes legal evidence of those facts and events.
An Acknowledgment differs from an Affidavit in that it only identifies the party to an instrument so that the document can speak for itself. It is an authentication of the signature attached to the document and not of the facts stated in the document.
A Verification differs from an Affidavit and an Acknowledgment in that it is a separate statement which alleges that statements made on a companion text are true. It is an affidavit attached to a statement as to the truth of the matters set forth in that statement.
None of these documents is an invoice! None of these documents is properly used in the Broadcast Industry in conjunction with an invoice!
Each of these proper types of documents requires a statement by the notary that the facts contained in the body of the affidavit were sworn to before him, with the date thereof, and signed by an officer, with his official title.
This is called a "jurat" which is generally comprised of the words "Sworn to before me this day of , 199 ", and evidences that the oath was properly taken before a duly authorized notary. The requirement of an express and present declaration that the affiant swears to the truth of his statements is not
met by the mere delivery of a statement called an affidavit, signed by the person presenting it to the notary for his jurat, since this does not constitute an oath taken. The law requires an affiant to be present before the notary administering the oath.
It is improper for notaries to sign and stamp thousands of invoices that contain a printed statement at the bottom certifying that the information had been taken from the official station log with no oath administered and with no jurat imposed. Likewise, it is defeatist and illegal for a local law firm to impose notary stamps and signatures on batches of invoices received by a client. Attempting to convert station invoices into affidavits without compliance with the necessary legal requirements is an exercise in futility. It may look right, but it is legally deficient and, therefore, valueless.
The proper method of notarization is hardly practical in todays industry.
Moreover, with the arrival of electronic invoicing, even proper notarization becomes redundant.
AND WHAT ABOUT CO-OP SCRIPTS?
At the present time, BCCA admits that the "notarization" of co-op scripts still saves the time of the agency, advertiser and station involved in getting invoices paid. Therefore, BCCA does not, at this time, recommend discontinuing notarization of co-op scripts, presuming the signatures are originals.
BCCAs researchindicates that the "notarization" of broadcast invoices, as currently practiced, is a misnomer and strongly recommends that this practice be dropped. To replace the current use of "notarization" of broadcast invoices, BCCA recommends that the following statement be placed on all broadcast and cable invoices:
"We warrant that the actual broadcast information shown on this invoice was taken from the official program log."
By Wanda Borges, Attorney at Law, Teitelbaum, Braverman & Borges, New Hyde Park , New York
A Study Published by the Broadcast Cable Credit Association,
Broadcast Cable Credit Association
BCCA Vice President
"We warrant that the actual
ISNT THAT ENOUGH?
The Broadcast Cable Credit