FAC No. CU-156123
Dear Mr. Krinsky:
NOV 20, 1997
This responds to your letter dated March 20, 1997, in which you inquire about a United States radio station. You asked how the Cuban Assets Control Regulations, 31 C.F.R Part 515 (the "Regulations"), would apply to a transaction, pursuant to which the radio station would broadcast an advertisement for Havanatur, a Cuban national. Based on the representations in your letter, the proposed transaction is not subject to the prohibition contained in the Regulations.
You represent that Havanatur or its non-U.S. affiliate would prepare a radio advertisement and provide the prepared advertisement to the U.S. radio station in the form of an audiotape. You represent that Havanatur would pay the station to play the advertisement. You imply that the station would perform no services for Havanatur other than broadcasting...
1) OFAC considers the broadcasting of an advertisement to fall within the scope of the informational materials exemption of the Berman Amendment. This ruling is notable as it is a commercial transaction where (presumably) fully 100% of the payment to the U.S. person was in consideration of an assumption of an obligation to broadcast the sanctioned person's message, (rather than the right to do so, as in ordinary cases of licensing the use of “informational materials”). In other words, the “service” that was considered exempt as incident to the exportation of the informational materials was the heart of the entire transaction, and the export of the exempt “materials” was the tail that wagged the “service” dog. Compare 031211-FACRL-IA-14. Posting of Information from Iran on Website.
The guidance is also notable insofar as the injunction against providing “marketing services” embedded with the boilerplate...