10-K 1 a09-1248_110k.htm 10-K

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

 

FORM 10-K

 

(Mark One)

x

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

 

For the fiscal year ended December 31, 2008

 

 

or

 

 

o

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from                     to

 

Commission File Number:   001-14461

 

Entercom Communications Corp.

(Exact name of registrant as specified in its charter)

 

Pennsylvania

 

23-1701044

(State or other jurisdiction of incorporation or organization)

 

(I.R.S. Employer Identification No.)

 

401 City Avenue, Suite 809

Bala Cynwyd, Pennsylvania 19004

(Address of principal executive offices and zip code)

 

(610) 660-5610

(Registrant’s telephone number, including area code)

 

SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:

 

Title of each class

 

Name of exchange on which registered

Class A Common Stock, par value $.01 per share

 

New York Stock Exchange

 

SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:

NONE

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.  Yes o   No x

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Exchange Act.  Yes o   No x

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports)

and (2) has been subject to such filing requirements for the past 90 days.  Yes x   No o

 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. o

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer.

 

Large accelerated filer o

 

Accelerated filer x

 

Non-accelerated filer o

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).  Yes o   No x

 

As of February 17, 2009, the aggregate market value of the Class A common stock held by non-affiliates of the registrant was $173,063,288 based on the June 30, 2008 closing price of $7.02 on the New York Stock Exchange on such date.

 

Class A common stock, $.01 par value 28,870,090 Shares Outstanding as of February 17, 2009 (Class A Shares Outstanding includes 1,400,242 unvested and vested but deferred restricted stock units).

 

Class B common stock, $.01 par value 7,607,532 Shares Outstanding as of February 17, 2009.

 

DOCUMENTS INCORPORATED BY REFERENCE

Certain information in the registrant’s Definitive Proxy Statement for its 2009 Annual Meeting of Shareholders, pursuant to Regulation 14A, is incorporated by reference in Part III of this report, which will be filed with the Securities and Exchange Commission no later than April 30, 2009.

 

 

 



Table of Contents

 

 

TABLE OF CONTENTS

 

 

 

Page

PART I

 

 

 

 

 

Item 1.

Business

1

Item 1A.

Risk Factors

7

Item 1B.

Unresolved Staff Comments

12

Item 2.

Properties

12

Item 3.

Legal Proceedings

12

Item 4.

Submission of Matters to a Vote of Security Holders

13

 

 

 

PART II

 

 

 

 

 

Item 5.

Market for Registrant’s Common Equity, Related Shareholder Matters and Issuer Purchases of Equity Securities

13

Item 6.

Selected Financial Data

17

Item 7.

Management’s Discussion and Analysis of Financial Condition and Results of Operations

19

Item 7A.

Quantitative and Qualitative Disclosures about Market Risk

38

Item 8.

Financial Statements and Supplementary Data

39

Item 9.

Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

39

Item 9A.

Controls and Procedures

40

Item 9B.

Other Information

41

 

 

 

PART III

 

 

 

 

 

Item 10.

Directors, Executive Officers and Corporate Governance

41

Item 11.

Executive Compensation

41

Item 12.

Security Ownership of Certain Beneficial Owners and Management and Related Shareholder Matters

41

Item 13.

Certain Relationships and Related Transactions, and Director Independence

41

Item 14.

Principal Accounting Fees and Services

41

 

 

 

PART IV

 

 

 

 

 

Item 15.

Exhibits, Financial Statement Schedules

42

 

 

 

Signatures

 

103

 



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CERTAIN DEFINITIONS

 

Unless the context requires otherwise, all references in this report to “Entercom,” “we,” “us,” “our” and similar terms refer to Entercom Communications Corp. and its consolidated subsidiaries, which would include any variable interest entities that are required to be consolidated under the requirements of Financial Interpretation No. 46, “Consolidation of Variable Interest Entities, an Interpretation of ARB No. 51.”

 

NOTE REGARDING FORWARD-LOOKING STATEMENTS

 

This report contains, in addition to historical information, statements by us with regard to our expectations as to financial results and other aspects of our business that involve risks and uncertainties and may constitute forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, as amended.

 

Forward-looking statements, including certain pro forma information, are presented for illustrative purposes only and reflect our current expectations concerning future results and events.  All statements other than statements of historical fact are “forward-looking statements” for purposes of federal and state securities laws including, without limitation, any projections of earnings, revenues or other financial items; any statements of the plans, strategies and objectives of management for future operations; any statements concerning proposed new services or developments; any statements regarding future economic conditions or performance; any statements of belief; and any statements of assumptions underlying any of the foregoing.

 

You can identify forward-looking statements by our use of words such as “anticipates,” “believes,” “continues,” “expects,” “intends,” “likely,” “may,” “opportunity,” “plans,” “potential,” “project,” “will” and similar expressions which identify forward-looking statements, whether in the negative or the affirmative.  We cannot guarantee that we actually will achieve these plans, intentions or expectations.  These forward-looking statements are subject to risks, uncertainties and other factors, some of which are beyond our control, which could cause actual results to differ materially from those forecasted or anticipated in such forward-looking statements.  These risks, uncertainties and factors include, but are not limited to, the factors described in Part I, Item 1A, “Risk Factors.”

 

The pro forma information reflects adjustments and is presented for comparative purposes only and does not purport to be indicative of what has occurred or indicative of future operating results or financial position.

 

You should not place undue reliance on these forward-looking statements, which reflect our view only as of the date of this report.  We undertake no obligation to update these statements or publicly release the result of any revision(s) to these statements to reflect events or circumstances after the date of this report or to reflect the occurrence of unanticipated events.

 

INFORMATION ABOUT STATION AND MARKET DATA

 

For this report, we listed our markets in descending order according to radio market revenues as derived from 2007 data published in 2008 by BIA Financial Network, Inc.

 



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PART I

 

ITEM 1.   BUSINESS

 

We are one of the largest radio broadcasting companies in the United States, based on revenues. We were organized in 1968 as a Pennsylvania corporation. We operate a nationwide portfolio in excess of 100 radio stations in 23 markets, including San Francisco, Boston, Seattle, Denver, Sacramento, Portland, Indianapolis, Kansas City, Milwaukee, Austin, Norfolk, Buffalo, New Orleans, Memphis, Providence, Greensboro, Greenville/Spartanburg, Rochester, Madison, Wichita, Wilkes-Barre/Scranton, Springfield and Gainesville/Ocala.

 

Our Strategy

 

Our strategy focuses on providing compelling content in the communities we serve to enable us to offer our advertisers an effective marketing platform to reach a large targeted local audience.  The principal components of our strategy are to: (i) build strongly-branded radio stations; (ii) develop market leading station clusters; (iii) recruit, develop, motivate and retain superior employees; (iv) leverage station clusters to capture greater share of advertising revenue; (v) acquire and develop under-performing stations; and (vi) develop new sources of business, including integrating station assets on-air, on-line and on-site.

 

Sources Of Revenue

 

The primary source of revenues for our radio stations is the sale of advertising time to local, regional and national spot advertisers and national network advertisers.  A growing source of revenues is from station websites and streaming audio which allows for enhanced audience interaction and participation as well as integrated advertising.  A station’s local sales staff generates the majority of its local and regional advertising sales through direct solicitations of local advertising agencies and businesses. We retain national representative firms to sell national spot commercial airtime on our stations to advertisers outside of our local markets. National spot radio advertising typically accounts for approximately 20% of a radio station’s revenues.

 

We believe that radio is an efficient and effective means of reaching specifically identified demographic groups.  Our stations are typically classified by their format, such as news, talk, classic rock, adult contemporary, alternative, oldies and jazz, among others.  A station’s format enables it to target specific segments of listeners sharing certain demographics. Advertisers and stations use data published by audience measuring services to estimate how many people within particular geographical markets and demographics listen to specific stations. Our geographically and demographically diverse portfolio of radio stations allows us to deliver targeted messages to specific audiences for advertisers on a local, regional and national basis.

 

Competition

 

The radio broadcasting industry is highly competitive.  Our stations compete for listeners and advertising revenue with other radio stations within their respective markets. In addition, our stations compete for audiences and advertising revenues with other media such as: network and cable television, newspapers and magazines, outdoor advertising, direct mail, yellow pages, Internet, satellite radio, wireless media alternatives, cellular phones and other forms of advertisement.

 

The following are some of the factors that are important to a radio station’s competitive position: (i) audience ratings; (ii) program content; (iii) management talent and expertise; (iv) sales talent and expertise; (v) audience characteristics; (vi) signal strength; and (vii) the number and characteristics of other radio stations and other advertising media in the market area.  We work to improve our competitive position through promotional campaigns aimed at the demographic groups targeted by our stations and sales efforts designed to attract advertisers. Radio station operators are subject to the possibility of another station changing programming formats to compete directly for listeners and advertisers.

 

We believe owning multiple radio stations in a market allows us to provide our listeners with a more diverse programming selection and a more efficient means for our advertisers to reach those listeners. By owning multiple stations in a market, we are also able to operate our stations with more highly skilled local management teams and eliminate duplicative operating and overhead expenses.

 

 

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Our Radio Stations

 

We operate in excess of 100 stations throughout the United States.

 

HD Radio®

 

The FCC selected In-Band On-Channel™ (“IBOC”) as the exclusive technology for introduction of terrestrial digital operations by AM and FM radio stations. The technology, developed by iBiquity Digital Corporation, is also known as “HD Radio®.”  We have a minority equity interest in iBiquity. We currently utilize HD Radio® digital technology on most of our FM stations.  We are also a founding member of the HD Digital Radio Alliance Association, which was formed to promote and develop HD Radio® and its digital multicast operations.  The advantages of digital audio broadcasting over traditional analog broadcasting technology include improved sound quality, additional channels and the ability to offer a greater variety of auxiliary services.  HD Radio® technology permits a station to transmit radio programming in both analog and digital formats.

 

Federal Regulation Of Radio Broadcasting

 

Overview.  The radio broadcasting industry is subject to extensive and changing regulation of, among other things, ownership limitations, program content, advertising content, technical operations and business and employment practices. The ownership, operation and sale of radio stations are subject to the jurisdiction of the Federal Communications Commission (“FCC”).  Among other things, the FCC: (i) assigns frequency bands for broadcasting; (ii) determines the particular frequencies, locations, operating power, and other technical parameters of stations; (iii) issues, renews, revokes and modifies station licenses; (iv) determines whether to approve changes in ownership or control of station licenses; (v) regulates equipment used by radio stations; and (vi) adopts and implements regulations and policies which directly affect the ownership, operation and employment practices of stations.

 

The following is a brief summary of certain provisions of the Communications Act and of certain specific FCC regulations and policies. This summary is not a comprehensive listing of all of the regulations and policies affecting radio stations.  For further information concerning the nature and extent of federal regulation of radio stations, you should refer to the Communications Act, FCC rules and FCC public notices and rulings.

 

FCC Licenses.  The operation of a radio broadcast station requires a license from the FCC.  Certain of our subsidiaries hold the FCC licenses for our stations.  The number of radio stations that can operate in a given area or market is limited by the number of AM frequencies permitted to serve a given area and the number of FM frequencies allotted by the FCC to communities in an area or market, based upon considerations of interference to and from other operating or authorized stations. The FCC’s multiple ownership rules further limit the number of stations serving the same area that may be owned or controlled by a single entity, as discussed below.

 

Classifications.  The FCC classifies each AM and FM station.  AM stations are classified as Class A, B, C or D depending on the type of channel and size and nature of the area they are designed to serve. Class A stations operate on an unlimited time basis and are designed to render primary and secondary service over an extended area. Class B stations operate on an unlimited time basis and are designed to render service only over a primary service area. Class C stations operate on a local channel and are designed to render service only over a primary service area that may be reduced as a consequence of interference. Class D stations operate either during daytime hours only, during limited times only or on an unlimited time basis with low nighttime power.

 

The class of an FM station determines the minimum and maximum facilities requirements. Some FM class designations depend upon the geographic zone in which the transmitter site of the FM station is located. In general, commercial FM stations are classified in order of increasing maximum power and antenna height, as follows: Class A, B1, C3, B, C2, C1, C0 and C.  Class C FM stations that do not meet certain minimum antenna height parameters are subject to an involuntary downgrade in class to Class C0 under certain circumstances.

 

Enforcement Authority.  The FCC has the power to impose penalties for violations of its rules under the Communications Act of 1934 (the “Communications Act”), including the imposition of monetary fines, the issuance of short-term licenses, the imposition of a condition on the renewal of a license, the denial of authority to acquire new stations, and the revocation of operating authority.  The maximum fine for a single violation of the FCC’s rules (other than indecency rules) is currently $37,500.  The maximum fine for a violation of the FCC’s indecency rules is $325,000 for each violation or each day of a continuing violation, with a maximum fine of up to $3.0 million for a continuing violation.

 

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Multiple Ownership Rules.  The Communications Act imposes specific limits on the number of commercial radio stations an entity can own in a single market.  FCC rules and regulations implement these limitations.  Digital radio channels authorized for AM and FM stations do not count as separate “stations” for purposes of the ownership limitations.  On June 2, 2003, the FCC adopted new ownership rules following a comprehensive review of its ownership regulations. The ownership rules adopted in 2003 included: (i) new cross-media limits that in certain markets eliminated the newspaper-broadcast cross-ownership ban and altered the television-radio cross-ownership limitations; and (ii) regulations that revised the manner in which the radio numeric ownership limitations were to be applied, substituting where available geographic markets as determined by Arbitron in place of the former standard which was based on certain overlapping signal contours.

 

The FCC’s new ownership rules were appealed to the U.S. Court of Appeals for the Third Circuit, which resulted in a stay of the new rules with the exception that the court allowed: (a) the use of Arbitron markets to define local radio markets where available; (b) the inclusion of non-commercial radio stations in determining the number of stations in the market; (c) the attribution of joint sales agreements with in-market stations; and (d) the limitations on the transfers of non-compliant ownership clusters.  On December 18, 2007, the FCC adopted an order that modified only the newspaper/broadcast cross-ownership rule to adopt a rebuttable presumption permitting the cross-ownership of one newspaper and one television or radio station in the top twenty television markets under certain circumstances, and establishing a waiver procedure applicable to such combinations in smaller markets.  The FCC declined to make changes to any other broadcast ownership rules, and retained the rules as then in effect.  The FCC’s decision remains subject to administrative and judicial appeal.

 

The FCC’s newspaper-broadcast cross-ownership rules impose limitations on the circumstances under which the same party may own a broadcast station and a daily newspaper in the same geographic market, as described above.  The FCC radio-television cross-ownership rules limit the number of radio stations that a local owner of television stations may hold.   We own no television stations or daily newspapers, but, to the extent these limitations continue to be enforced, these cross-media rules may limit the prospective buyers in the market of any stations we may wish to sell.  The ownership rules also effectively prevent us from: (i) selling stations in a market to a buyer that has reached its ownership limit in the market; or (ii) buying stations in a market if we have reached the ownership limit in such market.

 

There is, at present, no national limit on the number of radio stations that a single entity may own. Radio station ownership is regulated by rules applicable to the number of stations that may be owned in an individual local radio market.  Under the local radio ownership rules, the number of radio stations that can be owned by a single entity in a local radio market is as follows:

 

·                  in markets with 45 or more commercial and non-commercial radio stations, ownership is limited to eight commercial stations, no more than five of which can be in the same service (that is, AM or FM);

 

·                  in markets with 30 to 44 commercial and non-commercial radio stations, ownership is limited to seven commercial stations, no more than four of which can be in the same service;

 

·                  in markets with 15 to 29 commercial and non-commercial radio stations, ownership is limited to six commercial stations, no more than four of which can be in the same service; and

 

·                  in markets with 14 or fewer commercial and non-commercial radio stations, ownership is limited to the fewer of five commercial stations or not more than 50% of stations in the market, and no more than three of the stations can be in the same service.

 

The FCC rules define a “local radio market” as all radio stations, both commercial and non-commercial, which are included within an Arbitron market, where available, or which have certain overlapping signal contours under procedures adopted by the FCC for stations located outside of Arbitron markets.

 

As the number of stations in a market may fluctuate from time to time, the number of stations that can be owned by a single entity in a given market can vary over time.  Once the FCC approves the ownership of a cluster of stations in a market, that owner may continue to hold those stations under the “grandfathering” policies, despite a decrease in the number of stations in the market.  Market clusters, such as our holdings in Greenville, Kansas City and Wilkes-Barre/Scranton, which had been licensed under the former ownership rules but may exceed the ownership limits when applying the Arbitron-based market standard of the present rule, are considered to be “grandfathered.” If, at the time of a proposed future transaction, a cluster does not comply with the multiple ownership limitations based upon the number of stations then present in the market, the entire cluster cannot be transferred intact to a single party unless the purchaser qualifies as an “eligible entity” under specified small

 

 

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business standards and meets certain control tests, or the purchaser promises to file within twelve months following consummation to assign the “excess” stations in the market to an eligible entity or to an irrevocable divestiture trust for ultimate assignment of such stations to an eligible entity. The FCC has also commenced a rule making proceeding to consider certain other changes in its ownership rules to promote further diversification of ownership of broadcast stations by socially and economically disadvantaged businesses.

 

Attribution Of Ownership.  In the application of the ownership limitations, the FCC considers principally “attributable” ownership interests, which generally include: equity and debt interests which combined exceed 33% of a licensee’s total assets, if the interest holder supplies more than 15% of the licensee’s total weekly programming or has an attributable interest in any same-market media (television, radio, cable or newspaper), with a higher threshold in the case of investments in “eligible entities” acquiring broadcast stations; a 5% or greater direct or indirect voting stock interest, including certain interests held in trust, unless the holder is a qualified passive investor, in which case the threshold is a 20% or greater voting stock interest; any equity interest in a limited liability company or a partnership, including a limited partnership, unless properly “insulated” from management activities; and any position as an officer or director of a licensee or of its direct or indirect parent.  The FCC also considers the provision by the owner of one radio station of more than 15% of hours of weekly programming or the sale of more than 15% of the weekly advertising of another radio station serving substantially the same area under agreements commonly referred to as time brokerage or joint sales agreements, or otherwise, to represent an attributable interest of the party providing the programming or selling the advertising even though the ownership of the station broadcasting the programming or the advertising is distinct from that of the provider.  In instances, as in our case, where there is a “single majority voting shareholder,” other ownership interests in excess of the standards described above are considered to be non-attributable.  This exemption remains in effect, but has been under review by the FCC for a number of years.

 

Alien Ownership Rules.  The Communications Act prohibits the issuance to, or holding of broadcast licenses by, foreign governments or aliens, non-U.S. citizens, whether individuals or entities, including any interest in a corporation which holds a broadcast license if more than 20% of the capital stock is owned or voted by aliens. In addition, the FCC may prohibit any corporation from holding a broadcast license if the corporation is directly or indirectly controlled by any other corporation of which more than 25% of the capital stock is owned of record or voted by aliens if the FCC finds that the prohibition is in the public interest. Our articles of incorporation prohibit the ownership, voting and transfer of our capital stock in violation of the FCC restrictions, and prohibit the issuance of capital stock or the voting rights such capital stock represents to or for the account of aliens or corporations otherwise subject to control by aliens in excess of the FCC limits.

 

Renewal Of LicensesThe FCC licenses for radio stations are renewable authorizations that are ordinarily granted by the FCC for maximum terms of eight years.  A station may continue to operate beyond the expiration date of its license if a timely filed license renewal application is pending. During the periods when a renewal application is pending, petitions to deny and informal objections with respect to the renewal application can be filed by interested parties, including members of the public, on a variety of grounds. The FCC is required to renew a broadcast station license if the FCC finds that the station has served the public interest, convenience and necessity; there have been no serious violations by the licensee of the Communications Act or the FCC’s rules and regulations; and there have been no other violations by the licensee of the Communications Act or the FCC’s rules and regulations that, taken together, constitute a pattern of abuse.  In a pending rule-making proceeding, the FCC has sought comments on the adoption of processing guidelines for renewal applications regarding a station’s locally-oriented programming performance.  The effect of whether and to what extent any such requirements are ultimately adopted and become effective cannot currently be determined.

 

If a challenge is filed against a renewal application, and, as a result of an evidentiary hearing, the FCC determines that the licensee has failed to meet certain fundamental requirements and that no mitigating factors justify the imposition of a lesser sanction, the FCC may deny a license renewal application. Historically, FCC licenses have generally been renewed.  A petition to deny the renewal applications of all of our Sacramento radio stations has been filed and is pending, and the renewal application of certain other stations remain pending due to listener complaints.  Subject to the resolution of open FCC inquiries, we have no reason to believe that our licenses will not continue to be renewed in the ordinary course, although there can be no assurance to that effect. The non-renewal of one or more of our licenses could have a material adverse effect on our business.

 

Transfer Or Assignment Of Licenses.  The Communications Act prohibits the assignment of broadcast licenses or the transfer of control of a broadcast licensee without the prior approval of the FCC. In determining whether to grant such approval, the FCC considers a number of factors pertaining to the existing licensee and the proposed licensee, including:

 

·                  compliance with the various rules limiting common ownership of media properties in a given market;

 

 

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·                  the “character” of the proposed licensee; and

 

·                  compliance with the Communications Act’s limitations on alien ownership as well as compliance with other FCC regulations and policies.

 

To obtain FCC consent to assign or transfer control of a broadcast license, appropriate applications must be filed with the FCC. Interested parties may file objections or petitions to deny such applications. When evaluating an assignment or transfer application, the FCC is prohibited from considering whether the public interest might be served by assignment or transfer of the broadcast license to any party other than the one specified in the application.  No assignment or transfer application will be granted for any station by the FCC while a renewal application is pending for the station. Once an assignment or transfer application is granted, interested parties have 30 days following public notice of the grant to seek reconsideration of that grant.  The FCC usually has an additional ten days to set aside the grant on its own motion.  The Communications Act permits certain court appeals of a contested grant as well.

 

Programming And Operation.  The Communications Act requires broadcasters to serve the “public interest.” A licensee is required to present programming that is responsive to issues in the station’s community of license and to maintain records demonstrating this responsiveness. The FCC regulates, among other things, political advertising; sponsorship identifications; the advertisement of contests and lotteries; obscene, indecent and profane broadcasts; certain employment practices; and certain technical operation requirements, including limits on human exposure to radio-frequency radiation.  The FCC considers complaints from listeners concerning a station’s public service programming or other operational issues when processing a renewal application filed by a station, but the FCC may consider complaints at any time and may impose fines or take other action for violations of the FCC’s rules separate from its action on a renewal application.

 

In recent years, the FCC has received an increasing number of complaints alleging that broadcast stations have carried indecent programming at times when children may be in the audience, in violation of federal criminal law and the FCC’s policies, which prohibit programming that is deemed to be indecent or profane under FCC decisions and broadcast during the hours of 6:00 am until 10:00 pm; the period between 10:00 pm through 6:00 am is considered to be a “safe harbor” period and less stringent standards apply to programming carried then. FCC regulations prohibit the broadcast of obscene material at any time. The FCC has greatly intensified its enforcement activities with respect to programming which it considers obscene, indecent or profane, including: (i) adopting rules to implement the increase in the maximum fine which may be assessed for the broadcast of indecent or profane programming to $325,000 for a single violation, up to a maximum of $3,000,000 for a continuing violation; (ii) imposing fines on a per utterance basis instead of the imposition of a single fine for an entire program; and (iii) repeatedly warning broadcasters that future “serious” violations may result in the commencement of license revocation proceedings.   We have a number of outstanding indecency proceedings in which we are continuing to defend the stations’ conduct, and there may be other complaints of this nature which have been submitted to the FCC of which we have not yet been notified.  Certain aspects of the FCC’s indecency rules have been recently vacated by the U.S. Court of Appeals for Second Circuit and remanded for further action by the FCC; the government’s appeal from the court’s decision has recently been argued before the U.S. Supreme Court. In a separate case involving other aspects of the FCC’s indecency rules, the U.S. Court of Appeals for the Third Circuit reversed the finding of indecency. The FCC has appealed that decision to the U.S. Supreme Court and requested that the case be held in abeyance pending the Supreme Court’s decision in the 2nd Circuit case.  For further discussion, please refer to Part I, Item 3, “Legal Proceedings,” and to the risk factors described in Part I, Item 1A, “Risk Factors.”

 

The Communications Act and an implementing FCC rule require that when it is not evident from the content that any money, goods, services or other valuable consideration has been paid or promised to a station or an employee for the broadcast of certain programming, appropriate sponsorship identification announcement(s) must be given.  Following inquiries initiated by the FCC into sponsorship identification practices at several media companies, including us, we and other media companies entered into consent decrees pursuant to which we have adopted certain policies and procedures regarding our relationships with record labels and artists concerning the broadcast of music on our stations. We admitted no violations of any FCC rules in connection with the investigation, and the FCC found none.  We have also entered into a consent judgment terminating a lawsuit brought by the New York Attorney General, in which we agreed to adopt a number of business reforms and practices in the future and to make a payment to a non-profit organization to support music education and appreciation.  We admitted no liability in this action, and the court found none.  The FCC also has under consideration rule-making proceedings concerning sponsorship identification issues, such as product placement.  We cannot determine if any new regulations will ultimately be adopted, and if adopted, what effect such regulations may have on our operations.

 

 

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The FCC has rules prohibiting employment discrimination by broadcast stations on the basis of race, religion, color, national origin and gender. These rules require broadcasters generally to: (i) refrain from discrimination in hiring and promotion; (ii) widely disseminate information about all full-time job openings to all segments of the community to ensure that all qualified applicants have sufficient opportunity to apply for the job; (iii) send job vacancy announcements to recruitment organizations and others in the community indicating an interest in all or some vacancies at the station; and (iv) implement a number of specific recruitment outreach efforts, such as job fairs, internship programs, and interaction with educational and community groups from among a menu of approaches itemized by the FCC.  The applicability of these policies to part-time employment opportunities is the subject of a pending further rule-making proceeding.  In addition, the FCC bars discrimination with regard to race or gender in station transactions and has other rules designed to enhance the diversification of station ownership.

 

The FCC has rules, which concern the manner in which on-air contests conducted by a station are announced and conducted, requiring in general that the material rules and terms of the contest be broadcast periodically and that the contest be conducted substantially as announced.  The FCC is investigating a contest conducted by one of our stations in Sacramento after which one of the participants died (see Item 3, Legal Proceedings, for further discussion).  We are cooperating in this investigation.  Following a thorough investigation, the County prosecutor declined to file criminal charges and concluded that the station did not violate any criminal laws; a civil lawsuit is pending.

 

The FCC has adopted procedures that in general require the auction of broadcast spectrum in circumstances when two or more parties have applications for new radio facilities or for applications proposing major changes that are mutually exclusive. Such procedures may limit our efforts to build new stations, or to modify or expand the broadcast signals of our existing stations.

 

Proposed And Recent Changes. Congress, the FCC and other federal agencies may in the future consider and adopt new laws, regulations and policies regarding a wide variety of matters that could: (1) affect, directly or indirectly, the operation, ownership and profitability of our radio stations; (2) result in the loss of audience share and advertising revenues for our radio stations; and (3) affect our ability to acquire additional radio stations or to finance those acquisitions.  We cannot predict what other matters may be proposed or considered by the FCC or Congress, and we are unable to determine what effect, if any, the adoption of any such restrictions or limitations may have on our operations.

 

Federal Antitrust Laws.  The federal agencies responsible for enforcing the federal antitrust laws, the Federal Trade Commission and the Department of Justice, may investigate certain acquisitions. For an acquisition meeting certain size thresholds, the Hart-Scott-Rodino Antitrust Improvements Act of 1976 requires the parties to file Notification and Report Forms with the Federal Trade Commission and the Department of Justice and to observe specified waiting period requirements before consummating the acquisition.

 

Employees

 

As of February 15, 2009, we had a staff of approximately 1600 full-time employees and 700 part-time employees.  With respect to certain of our stations in our Kansas City and San Francisco markets, we are a party to collective bargaining agreements with the American Federation of Television and Radio Artists.  Approximately 16 employees are represented by these collective bargaining agreements.  We believe that our relations with our employees are good.

 

Corporate Governance

 

Code Of Business Conduct And Ethics.  We have adopted a Code of Business Conduct and Ethics that applies to each of our employees including our principal executive officer and senior members of our finance department. Our Code of Business Conduct and Ethics can be found on the Governance page of our website located at www.entercom.com.  We will provide a paper copy of the Code of Business Conduct and Ethics upon any shareholder request.

 

Board Committee Charters.  Each of our Audit Committee, Compensation Committee and Nominating/Corporate Governance Committee has a committee charter as required by the rules of the New York Stock Exchange.  These committee charters can be found on the Corporate Governance page of our website located at www.entercom.com.  We will provide a paper copy of any one or more of such charters upon any shareholder request.

 

Corporate Governance Guidelines.  New York Stock Exchange rules require our Board of Directors to establish certain Corporate Governance Guidelines.  These guidelines can be found on the Corporate Governance page of our website

 

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located at www.entercom.com.  We will provide a paper copy of our Corporate Governance Guidelines upon any shareholder request.

 

New York Stock Exchange CEO Certification.  On May 20, 2008, our Chief Executive Officer submitted to the New York Stock Exchange the “CEO Certification” required by Section 303A.12(a) of the New York Stock Exchange Listed Company Manual.

 

Environmental Compliance

 

As the owner, lessee or operator of various real properties and facilities, we are subject to various federal, state and local environmental laws and regulations. Historically, compliance with these laws and regulations has not had a material adverse effect on our business. There can be no assurance, however, that compliance with existing or new environmental laws and regulations will not require us to make significant expenditures of funds.

 

Seasonality

 

Seasonal revenue fluctuations are common in the radio broadcasting industry and are due primarily to fluctuations in advertising expenditures. Our revenues are typically lowest in the first calendar quarter.

 

Internet Address And Internet Access To Periodic And Current Reports

 

You can find more information about us at our Internet website located at www.entercom.com. Our Annual Report on Form 10-K, our Quarterly Reports on Form 10-Q, our Current Reports on Form 8-K and any amendments to those reports are available free of charge through our Internet website as soon as reasonably practicable after we electronically file such material with the Securities and Exchange Commission (the “SEC”).  We will also provide a copy of our annual report on Form 10-K upon any written request by a shareholder.

 

ITEM 1A.   RISK FACTORS

 

Many statements contained in this report are forward-looking in nature (see Note Regarding Forward-Looking Statements at the beginning of this Form 10-K). These statements are based on current plans, intentions or expectations, and actual results could differ materially as we cannot guarantee that we will achieve these plans, intentions or expectations.  Among the factors that could cause actual results to differ are the following:

 

The Global Economic Crisis Has Affected Our Business And We Cannot Predict Its Future Impact.

 

Our revenues continue to be impacted by economic trends that have caused a general downturn in the advertising sector. The capital and credit markets have been experiencing unprecedented volatility and disruption. The markets have produced downward pressure on stock prices and credit capacity for many companies, including us. If economic trends continue or worsen, there can be no assurance that we will not experience a further adverse effect, which may be material to our business, financial condition, results of operations and our ability to access capital.  In addition, our ability to access the capital markets may be severely restricted at a time when we would like, or need, to do so, which could have an impact on our flexibility to react to changing economic and business conditions.

 

The Covenants In Our Senior Secured Credit Facility And Senior Subordinated Notes Restrict Our Operational Flexibility.

 

Our senior secured credit facility (the “Bank Facility”) and our Senior Subordinated Notes (“Notes”) contain covenants that restrict, among other things, our ability to borrow money, make particular types of investments or other restricted payments, swap or sell assets, or merge or consolidate with another company. We have pledged substantially all of the stock or equity interests of our subsidiaries to secure the debt under our Bank Facility. If the amounts outstanding under the Bank Facility or the Notes were accelerated due to an event of default, the lenders under our Bank Facility could proceed against the equity interests of our subsidiaries. Any event of default, therefore, could have a material adverse effect on our business.

 

Our Bank Facility and our Notes also require us to maintain specified financial ratios. Our ability to meet these financial ratios can be affected by operating performance or other events beyond our control, and we cannot be assured that we will meet those ratios. The current economic crisis has reduced demand for advertising in general, including advertising on our

 

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radio stations.  If our revenues were to be significantly less than planned due to difficult market conditions or for other reasons, our ability to maintain compliance with the financial covenants in our credit agreements would become increasingly difficult without remedial measures.  Such remedial measures would include management’s plans to further reduce operating costs and opportunistically repurchase Senior Subordinated Notes at a discount. The Bank Facility requires us to comply with certain financial covenants and leverage ratios which are defined terms within the agreement, including: (1) Total Debt to Operating Cash Flow of 6 times; and (2) Operating Cash Flow to Interest Expense of 2 times. If our remedial measures were not successful in maintaining covenant compliance, then we would negotiate with our lenders for relief, which relief could result in higher interest expense. Failure to comply with our financial covenants or other terms of our credit agreements and failure to negotiate relief from our lenders could result in the acceleration of the maturity of all outstanding debt. Under these circumstances, the acceleration of our debt could have a material adverse effect on our business.

 

We Have Substantial Indebtedness Which Could Have Important Consequences To You.

 

We have outstanding indebtedness of $835.2 million (including a $1.5 million letter of credit) as of December 31, 2008 that is substantial in amount and could have an impact on us. For example, these obligations could:

 

·                  increase our vulnerability in an economic downturn, limit our ability to withstand competitive pressures and reduce our flexibility in responding to changing business and economic conditions;

 

·                  impair our ability to obtain additional financing for working capital, capital expenditures, acquisitions and general corporate or other purposes;

 

·                  require us to dedicate a substantial portion of our cash flow from operations to debt service, thereby reducing the availability of cash flow for other purposes; and

 

·                  limit or prohibit our ability to pay dividends and make other distributions.

 

As of December 31, 2008, $298.5 million was the maximum amount available under our current $1,050 million Bank Facility that matures on June 30, 2012. The amount available for borrowing is determined by our financial covenants, which are impacted by many factors, including but not limited to changes in our operating performance, acquisitions, dispositions and debt retirement.  Assuming the use of the borrowed proceeds has no effect on operating cash flow (as determined under our Bank Facility), as of December 31, 2008, $122.8 million of $298.5 million is available for borrowing.  Any additional borrowings, which are subject to compliance at the time of each loan, would further increase the amount of our indebtedness and the associated risks.

 

We Have Incurred Losses Over The Past Two Years And We May Incur Future Losses.

 

We have reported net losses in our consolidated statement of operations over the past two years as a result of recording non-cash write-downs of our broadcasting licenses and goodwill. In 2008, we recorded impairments to our broadcasting licenses and goodwill of $835.7 million (excluding impairments recorded during the first quarter of 2008 to assets held for sale). As of December 31, 2008, our broadcasting licenses and goodwill comprise 81.6% of our total assets. If events occur or circumstances change that would reduce the fair value of the broadcasting licenses and goodwill below the amount reflected on the balance sheet, we may be required to recognize impairment charges, which may be material, in future periods.

 

We Face Many Unpredictable Business Risks, Both General And Specific To The Radio Broadcasting Industry, Which Could Have A Material Adverse Effect On Our Future Operations.

 

Our future operations are subject to many business risks, including those risks that specifically influence the radio broadcasting industry, which could have a material adverse effect on our business including:

 

·                  economic conditions, both generally and relative to the radio broadcasting industry;

 

·                  shifts in population, demographics or audience tastes;

 

·                  the level of competition for advertising revenues with other radio stations and other advertising supported media;

 

·                  technological changes and innovations;

 

 

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·                  new laws and regulations;

 

·                  the imposition by law or regulation of new or increased fees on radio broadcasting and related activities; and

 

·                  changes in governmental regulations and policies and actions of federal regulatory bodies, including the FCC, the Department of Justice and the Federal Trade Commission.

 

Given the inherent unpredictability of these variables, we cannot with any degree of certainty predict what effect, if any, these variables will have on our future operations. Generally, advertising tends to decline during economic recession or downturn. Consequently, our advertising revenue is likely to be adversely affected by a recession or downturn in the United States economy, the economy of an individual geographic market in which we own or operate radio stations, or other events or circumstances that adversely affect advertising activity. The continuing market and capital crisis is adversely impacting overall demand for advertising, which is negatively impacting our revenues.

 

Our Radio Stations May Be Adversely Affected By Competition For Advertising Revenues.

 

Our radio broadcasting stations are in a highly competitive business. Our radio stations compete for audiences and advertising revenues within their respective markets directly with other radio stations, as well as with other media, such as newspapers and magazines, Internet, broadcast and cable television, outdoor advertising and direct mail. Audience ratings and market shares are subject to change, and any change in a particular market could have a material adverse effect on the revenue of our stations located in that market. While we already compete in some of our markets with other stations with similar programming formats, if another existing or new radio station in a market were to convert its programming format to a format similar to one of our stations or if an existing competitor were to strengthen its operations, our stations could suffer a reduction in ratings and/or advertising revenue and could incur increased promotional and other expenses. We cannot be assured that any of our stations will be able to maintain or increase their current audience ratings and advertising revenues.

 

We Must Respond To The Increased Competition For Audio Distribution And The Rapid Changes In Technology, Services And Standards That Characterize Our Industry In Order To Remain Competitive.

 

The radio broadcasting industry is subject to rapid technological change, evolving industry standards and the emergence of new media technologies and services. These technologies and services, some of which are commercial free, include the following:

 

·                  personal digital audio devices (e.g., iPods®, mp3® players, audio via WiFi, mobile phones,, WiMAX and the Internet);

 

·                  satellite delivered digital audio radio services;

 

·                  HD Radio®, which provides multi-channel, multi-format digital radio services in the same bandwidth currently occupied by traditional AM and FM radio services; and

 

·                  low-power FM radio, which could result in additional FM radio broadcast outlets.

 

We cannot predict the effect, if any, that competition arising from new technologies or regulatory change may have on the radio broadcasting industry or on our financial condition and results of operations.

 

We Are Dependent On Federally Issued Licenses To Operate Our Radio Stations And Are Subject To Extensive Federal Regulation.

 

The radio broadcasting industry is subject to extensive regulation by the FCC under the Communications Act (see, for example, the discussion of FCC regulations contained in Part I, Item 1, “Business,” of this Form 10-K). We are required to obtain licenses from the FCC to operate our radio stations. Licenses are normally granted for a term of eight years and are renewable. Although the vast majority of FCC radio station licenses are routinely renewed, we cannot be assured that the FCC will approve our future renewal applications or that the renewals will not include conditions or qualifications. A number of our applications to renew our station licenses have been objected to by third parties and remain pending before the FCC. The non-renewal, or renewal with substantial conditions or modifications, of one or more of our licenses could have a material adverse effect on us.

 

 

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We must comply with extensive FCC regulations and policies in the ownership and operation of our radio stations. FCC regulations limit the number of radio stations that a licensee can own in a market, which could restrict our ability to consummate future transactions and in certain circumstances could require us to divest some radio stations. The FCC’s rules governing our radio station operations impose costs on our operations, and changes in those rules could have an adverse effect on our business. The FCC also requires radio stations to comply with certain technical requirements to limit interference between two or more radio stations. If the FCC relaxes these technical requirements, it could impair the signals transmitted by our radio stations and could have a material adverse effect on us. Moreover, these FCC regulations and others may change over time, and we cannot be assured that changes would not have a material adverse effect on us. The FCC has a pending investigation into a contest at one of our stations where a contestant died after participating in the contest. We are currently the subject of several other investigations by the FCC.

 

The FCC Has Engaged In Vigorous Enforcement Of Its Indecency Rules Against The Broadcast Industry, Which Could Have A Material Adverse Effect On Our Business.

 

FCC regulations prohibit the broadcast of obscene material at any time and indecent material between the hours of 6:00 a.m. and 10:00 p.m. In the last several years, the FCC has enhanced its enforcement efforts relating to the regulation of indecency and has threatened on more than one occasion to initiate license revocation proceedings against a broadcast licensee who commits a “serious” indecency violation. Congress has dramatically increased the penalties for broadcasting obscene, indecent or profane programming, and these penalties may potentially subject broadcasters to license revocation, renewal or qualification proceedings in the event that they broadcast indecent material. In addition, the FCC’s heightened focus on the indecency regulatory scheme, against the broadcast industry generally, may encourage third parties to oppose our license renewal applications or applications for consent to acquire broadcast stations. Several of our stations are currently subject to indecency-related inquiries and/or proposed fines at the FCC’s Enforcement Bureau as well as objections to our license renewals based on such inquiries and proposed fines, and we may in the future become subject to additional inquiries or proceedings related to our stations’ broadcast of obscene, indecent or profane material. To the extent that these inquiries or other proceedings result in the imposition of fines, a settlement with the FCC, revocation of any of our station licenses or denials of license renewal applications, our results of operation and business could be materially adversely affected.

 

Because Of Our Holding Company Structure, We Depend On Our Subsidiaries For Cash Flow, And Our Access To This Cash Flow Is Restricted.

 

We operate as a holding company. All of our radio stations are currently owned and operated by our subsidiaries. Entercom Radio, LLC, our 100% owned finance subsidiary, is the borrower under our Bank Facility and our Senior Subordinated Debt. All of our station-operating subsidiaries and FCC license subsidiaries are subsidiaries of Entercom Radio, LLC.  Further, we guaranteed Entercom Radio, LLC’s obligations under the Bank Facility on a senior secured basis and under the Senior Subordinated Notes on an unsecured basis, junior to our Bank Facility.

 

As a holding company, our only source of cash to pay our obligations, including corporate overhead and other accounts payable, are distributions from our subsidiaries. We currently expect that the net earnings and cash flow of our subsidiaries will be retained and used by them in their operations, including servicing their debt obligations, before distributions are made to us. Even if our subsidiaries elect to make distributions to us, we cannot be assured that applicable state law and contractual restrictions, including the dividend covenants contained in our Bank Facility and Senior Subordinated Notes, would permit such dividends or distributions.

 

Our Common Stock May Cease To Be Listed On Its Current Stock Exchange.

 

Our common stock is currently listed on the NYSE under the symbol “ETM”. In the future, we may not be able to meet the continued listing requirements of the NYSE, which require, among other things, (i) minimum closing price of our common stock; (ii) a minimum market capitalization; and (iii) a minimum stockholders’ equity and market capitalization.  If we are unable to satisfy the NYSE criteria for continued listing, our common stock would be subject to delisting.  Management would then seek to have our common stock trade on another exchange or the Over-the-Counter Bulletin Board.  A delisting of our common stock from the NYSE could negatively impact us by, among other things, reducing the liquidity and market price of our common stock.  (See Management’s Discussion and Analysis for a discussion of the NYSE continued listing requirements.)

 

 

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Our Chairman Of The Board And Our President And Chief Executive Officer Effectively Control Our Company, And Members Of Their Immediate Family Also Own A Substantial Equity Interest In Us. Their Interests May Conflict With Your Interest.

 

As of February 17, 2009, Joseph M. Field, our Chairman of the Board, beneficially owned 1,906,943 shares of our Class A common stock and 6,558,282 shares of our Class B common stock, representing approximately 64.9% of the total voting power of all of our outstanding common stock.  As of February 17, 2009, David J. Field, our President and Chief Executive Officer, one of our directors and the son of Joseph M. Field, beneficially owned 2,534,464 shares of our Class A common stock and 749,250 shares of our outstanding Class B common stock, representing approximately 10.1% of the total voting power of all of our outstanding common stock. Collectively, Joseph M. Field and David J. Field and other members of the Field family beneficially own all of our outstanding Class B common stock. Other members of the Field family and Trusts for their benefit also own shares of Class A common stock.

 

Shares of Class B common stock are transferable only to Joseph M. Field, David J. Field, certain of their family members or trusts for any of their benefit. Upon any other transfer, shares of our Class B common stock automatically convert into shares of our Class A common stock on a one-for-one basis. Shares of our Class B common stock are entitled to ten votes only when Joseph M. Field or David J. Field vote them, subject to certain exceptions when they are restricted to one vote. Joseph M. Field generally is able to control the vote on all matters submitted to the vote of shareholders and, therefore, is able to direct our management and policies, except with respect to those matters when the shares of our Class B common stock are only entitled to one vote and those matters requiring a class vote under the provisions of our articles of incorporation, bylaws or applicable law, including, without limitation, the election of the two Class A directors. Without the approval of Joseph M. Field, we will be unable to consummate transactions involving an actual or potential change of control, including transactions in which investors might otherwise receive a premium for their shares over then current market prices.

 

Future Sales By Joseph M. Field Or Members Of His Family Could Adversely Affect The Price Of Our Class A Common Stock.

 

The price for our Class A common stock could fall substantially if Joseph M. Field or members of his family sell large amounts of shares in the public market, including any shares of our Class B common stock (as described in the above paragraph) which are automatically converted to Class A common stock when sold.  These sales, or the possibility of such sales, could make it more difficult for us to raise capital by selling equity or equity-related securities in the future.

 

The Difficulties Associated With Any Attempt To Gain Control Of Our Company Could Adversely Affect The Price Of Our Class A Common Stock.

 

Joseph M. Field controls the decision as to whether a change in control will occur for our Company.  There are also provisions contained in our articles of incorporation, by-laws and Pennsylvania law that could make it more difficult for a third party to acquire control of our Company. In addition, FCC approval for transfers of control of FCC licenses and assignments of FCC licenses are required. These restrictions and limitations could adversely affect the trading price of our Class A common stock.

 

We Depend On Selected Market Clusters Of Radio Stations.

 

For the year ended December 31, 2008, we generated in excess of 50% of our net revenues in 6 of our 23 markets (Boston, San Francisco, Portland, Seattle, Sacramento and Kansas City). Accordingly, we may have greater exposure to adverse events or conditions that affect the economy in any of these markets, which could have a material adverse effect on our financial position and results of operations.

 

Our Stock Price And Trading Volume Could Be Volatile.

 

Our Class A common stock has been publicly traded since January 29, 1999. The market price of our Class A common stock and our trading volume has been subject to fluctuations since the date of our initial public offering. The stock market has from time to time experienced price and volume fluctuations that have affected the market prices of public equities. As a result, the market price of our Class A common stock could change, regardless of our operating performance.

 

 

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The Loss Of Key Personnel Could Have A Material Adverse Effect On Our Business.

 

Our business depends upon the continued efforts, abilities and expertise of our executive officers and other key executives. We believe that the loss of one or more of these individuals could have a material adverse effect on our business.

 

The Impact Of A Natural Disaster And Its Aftermath Could Have A Material Adverse Effect On Our Markets.

 

A natural disaster could adversely impact any of our markets. As an example, Hurricane Katrina and its aftermath impacted the operations of our six radio stations in New Orleans, Louisiana.

 

Our Failure To Comply Under The Sarbanes-Oxley Act of 2002 Could Cause A Loss Of Confidence In The Reliability Of Our Financial Statements.

 

We have undergone a comprehensive effort to comply with Section 404 of the Sarbanes-Oxley Act of 2002. This effort included documenting and testing our internal controls. As of December 31, 2008, we believe our internal control over financial reporting is effective as defined by the Public Company Accounting Oversight Board. A reported material weakness or the failure to meet the reporting deadline requirements of Section 404 could result in an adverse reaction in the financial markets due to a loss of confidence in the reliability of our financial statements. This loss of confidence could cause a decline in the market price of our stock.

 

ITEM 1B.                    UNRESOLVED STAFF COMMENTS

 

None.

 

ITEM 2.                 PROPERTIES

 

The types of properties required to support each of our radio stations include offices, studios and transmitter/antenna sites. We typically lease our studio and office space, although we do own some of our facilities. Most of our studio and office space leases contain lease terms with expiration dates of five to fifteen years. A station’s studios are generally housed with its offices in downtown or business districts. We own many of our main transmitter/antenna sites and have entered into leases for the remaining sites with lease terms that generally range from five to twenty years. The transmitter/antenna site for each station is generally located so as to provide maximum market coverage. In general, we do not anticipate difficulties in renewing facility or transmitter/antenna site leases or in leasing additional space or sites if required. We have approximately $11.9 million in aggregate annual minimum rental commitments under real estate leases.  Many of these leases contain clauses such as defined contractual increases or cost of living adjustments.

 

Our principal executive offices are located at 401 City Avenue, Suite 809, Bala Cynwyd, Pennsylvania 19004, in 10,678 square feet of leased office space. The lease on these premises expires October 31, 2011.

 

We own substantially all of our other equipment, consisting principally of transmitting antennae, transmitters, studio equipment and general office equipment. The towers, antennae and other transmission equipment used by our stations are generally in good condition.  We generally consider our facilities to be suitable and of adequate size for our current and intended purposes.

 

ITEM 3.                 LEGAL PROCEEDINGS

 

We currently and from time to time are involved in litigation incidental to the conduct of our business.  Except as disclosed herein, we are not a party to any lawsuit or proceeding that, in the opinion of management, is likely to have a material adverse effect on us.

 

On January 25, 2007, a wrongful death suit was filed against us in the California Superior Court in Sacramento relating to an on-air contest. The lawsuit seeks compensatory and unspecified punitive damages, which claims may not be fully covered by our insurance policy. The FCC has also initiated an investigation into this contest. At this time, we are unable to predict the outcome of these proceedings.

 

The Company could face increased costs in the form of fines and a greater risk that we could lose any one or more of our broadcasting licenses if the FCC concludes that programming broadcast by our stations was obscene, indecent or profane and such conduct warrants license revocation.  As of July 2007, the FCC’s authority to impose a fine for the broadcast of such

 

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material was increased to $325,000 for a single incident, with a maximum fine of up to $3.0 million for a continuing violation. In the past, the FCC has issued Notices of Apparent Liability and a Forfeiture Order with respect to several of our stations proposing fines for certain programming which the FCC deemed to have been indecent. These cases are the subject of pending administrative appeals. The FCC has also commenced several other investigations based on allegations received from the public that some of our stations broadcast indecent programming.  We have cooperated in these investigations which remain pending. We estimate that the imposition of the proposed fines would not materially impact our financial position, results of operations or cash flows. For a further discussion, please refer to the risk factors described in Part I, Item 1A, “Risk Factors.”

 

ITEM 4.    SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS

 

No matters were submitted to a vote of security holders during the fourth quarter 2008.

 

PART II

 

ITEM 5.                 MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED SHAREHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

 

Market Information For Our Common Stock

 

Our Class A common stock, $.01 par value, is listed on The New York Stock Exchange under the symbol “ETM.” The table below shows, for the quarters indicated, the reported high and low trading prices of our Class A common stock on The New York Stock Exchange.

 

 

 

Price Range

 

 

 

High

 

Low

 

Calendar Year 2008

 

 

 

 

 

First Quarter

 

$

13.75

 

$

9.46

 

Second Quarter

 

$

11.50

 

$

6.96

 

Third Quarter

 

$

8.10

 

$

4.89

 

Fourth Quarter

 

$

5.42

 

$

0.52

 

Calendar Year 2007

 

 

 

 

 

First Quarter

 

$

31.23

 

$

27.02

 

Second Quarter

 

$

29.49

 

$

23.68

 

Third Quarter

 

$

25.71

 

$

18.60

 

Fourth Quarter

 

$

21.91

 

$

13.55

 

 

There is no established trading market for our Class B common stock, $.01 par value.

 

Holders

 

As of February 17, 2009, there were approximately 170 shareholders of record of our Class A common stock.  This number does not include the number of shareholders whose shares are held of record by a broker or clearing agency but does include each such brokerage house or clearing agency as one record holder.  Based upon available information, we believe we have approximately 5,314 beneficial owners of our Class A common stock.  There are 4 shareholders of record of our Class B common stock, $.01 par value, and no shareholders of record of our Class C common stock, $.01 par value.

 

Dividends

 

Our Board of Directors approved dividends on a quarterly basis effective with the first quarter of 2006 through the third quarter of 2008.  Our Board of Directors did not declare a dividend for the fourth quarter of 2008.  Any future dividends will be at the discretion of the Board of Directors based upon the relevant factors at the time of such consideration.

 

Share Repurchases

 

During 2008, we repurchased 2.1 million shares in the amount of $13.9 million at an average price of $6.72 per share. Subsequent to December 31, 2008 and as of February 15, 2009, 0.7 million shares in the amount of $0.9 million at an average price of $1.34 per share were repurchased.

 

 

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Depending on market conditions and other factors, these repurchases may be commenced or suspended at any time or from time to time without prior notice.  As of February 15, 2009, $25.4 million remained authorized as available for repurchase.

 

The following table provides information on our repurchases during the quarter ended December 31, 2008:

 

Period

 

(a)
Total Number of Shares Purchased

 

(b)
Average Price Paid Per Share

 

(c)
Total Number of Shares Purchased as Part of Publicly Announced Plans or Programs

 

(d)
Maximum Approximate Dollar Value of Shares That May Yet Be Purchased Under The Plans or Programs

 

October 1, 2008 - October 31, 2008 (1)(2)

 

122

 

$

2.34

 

 

$

26,953,046

 

November 1, 2008 - November 30, 2008 (1)

 

535,923

 

$

0.79

 

535,923

 

$

26,531,268

 

December 1, 2008 - December 31, 2008 (1)(2)

 

249,349

 

$

1.10

 

235,495

 

$

26,269,563

 

Total

 

785,394

 

 

 

771,418

 

 

 


(1)          On April 23, 2008, our Board of Directors extended to June 30, 2009 a plan to repurchase up to $100.0 million of our common stock that was due to expire on May 5, 2008.

 

(2)          In connection with employee tax obligations related to the vesting of restricted stock units during the three months ended December 31, 2008 and in accordance with elections by certain employees, we are deemed to have purchased the shares withheld to satisfy employees’ tax obligations of 122 shares at an average price of $2.34 per share in October 2008 and 13,854 shares at an average price of $0.97 per share in December 2008.  These shares are included in the table above.

 

Equity Compensation Plan Information

 

The following table sets forth, as of December 31, 2008, the number of securities outstanding under our equity compensation plans, the weighted average exercise price of such securities and the number of securities available for grant under these plans:

 

Equity Compensation Plan Information as of December 31, 2008

 

 

 

(a)

 

(b)

 

(c)

 

 

 

Number of Shares

 

Weighted-Average

 

Number of Securities

 

 

 

to be Issued Upon

 

Exercise

 

Remaining Available

 

 

 

Exercise of

 

Price of

 

for Future Issuance

 

 

 

Outstanding

 

Outstanding

 

Under Equity

 

 

 

Options,

 

Options,

 

Compensation Plans

 

 

 

Warrants

 

Warrants

 

(Excluding

 

Plan Category

 

and Rights

 

and Rights

 

Column (a)

 

 

 

 

 

 

 

 

 

Equity Compensation Plans Approved by Shareholders:

 

 

 

 

 

 

 

Employee Stock Purchase Plan

 

 

 

 

 

1,609,755

 

Entercom Equity Compensation Plan (1)

 

2,493,930

 

$

28.33

 

960,071

 

 

 

 

 

 

 

 

 

Equity Compensation Plans Not Approved by Shareholders

 

 

 

 

 

 

 

None

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total

 

2,493,930

 

 

 

2,569,826

 

 

 

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(1)          Under the Entercom Equity Compensation Plan (the “Plan”), the Company is authorized to issue up to 10.0 million shares of Class A common stock, which amount is increased by 1.5 million shares on January 1 of each year, or a lesser number as may be determined by the Company’s Board of Directors.  As a result of a March 23, 2006 amendment to the Plan in connection with our 2006 Option Exchange Program as described in Note 14 in the accompanying consolidated financial statements, the number of shares that can be issued under the Plan was effectively reduced by 3.6 million. In addition, on November 13, 2007 and on November 16, 2006, the Company’s Board of Directors determined that no additional shares would be added to the Plan on January 1, 2008 and on January 1, 2007, respectively. As of December 31, 2008, 1.0 million shares were available for future grant. On January 1, 2009, the shares available for grant automatically increased by 1.5 million shares to 2.5 million shares.

 

For a description of our equity compensation plans, please refer to Note 14 in the accompanying notes to the consolidated financial statements.

 

 

 

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Table of Contents

 

Performance Graph

 

The following Comparative Stock Performance Graph shall not be deemed incorporated by reference by any general statement incorporating by reference this Form 10-K into any filing under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, except to the extent that we specifically incorporate this information by reference.  This Comparative Stock Performance Graph is being furnished with this Form 10-K and shall not otherwise be deemed filed under such acts.

 

The following line graph compares the cumulative 5-year total return provided to shareholders on our Class A common stock relative to the cumulative total returns of: (i) the S & P 500 index; and (ii) a peer group index consisting of Cox Radio Inc., Emmis Communications Corp., Citadel Broadcasting Corp. and Cumulus Media Inc.  In prior years, we utilized the S&P Broadcasting & Cable TV index instead of a peer group.  In 2008, however, this index was no longer published.  An investment of $100 (with reinvestment of all dividends) is assumed to have been made in our Class A common stock and in each of the indexes on December 31, 2003 and its relative performance is tracked through December 31, 2008.

 

GRAPHIC

 

*$100 invested on 12/31/03 in stock & index-including reinvestment of dividends. Fiscal year ending December 31.

 

 

 

12/31/03

 

12/31/04

 

12/31/05

 

12/31/06

 

12/31/07

 

12/31/08

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Entercom Communications Corp.

 

$

100.00

 

$

67.77

 

$

56.02

 

$

56.32

 

$

29.35

 

$

2.82

 

S&P 500

 

$

100.00

 

$

110.88

 

$

116.33

 

$

134.70

 

$

142.10

 

$

89.53

 

Peer Group

 

$

100.00

 

$

70.17

 

$

61.89

 

$

50.94

 

$

25.58

 

$

6.57

 

 

16



Table of Contents

 

ITEM 6.   SELECTED FINANCIAL DATA

 

                The selected financial data below as of and for the years ended December 31, 2004 through 2008 were derived from our audited consolidated financial statements. The selected financial data for the years ended December 31, 2008, 2007 and 2006 and balance sheets as of December 31, 2008 and 2007 are qualified by reference to, and should be read in conjunction with, the corresponding audited consolidated financial statements, and the notes thereto, and Management’s Discussion and Analysis of Financial Condition and Results of Operations included elsewhere in this annual report. The selected financial data for the years ended December 31, 2005 and 2004 and the balance sheets as of December 31, 2006, 2005 and 2004 are derived from financial statements not included herein. Our financial results are not comparable from year to year due to our acquisitions and dispositions of radio stations. In the table that follows, we have acquired several radio stations in each of the years presented (other than in 2006 when we acquired one radio station).  Also, in years 2008 and 2007, we incurred an impairment loss of $835.7 million and $84.0 million, respectively, in connection with our review of goodwill and broadcasting licenses under the provisions of Statement of Financial Accounting Standard (“SFAS”) No. 142 (please refer to Note 3 in the accompanying notes to the financial statements for further discussion of the contributing factors to the impairment loss). The prior year amounts have been reclassified for discontinued operations as discussed in Note 16 to the accompanying consolidated financial statements.

 

SELECTED FINANCIAL DATA

(amounts in thousands, except per share data)

 

 

 

Years Ended December 31,

 

 

 

2008

 

2007

 

2006

 

2005

 

2004

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating Data:

 

 

 

 

 

 

 

 

 

 

 

Net revenues

 

$

438,822

 

$

468,351

 

$

439,629

 

$

431,799

 

$

422,826

 

Operating (income) expenses:

 

 

 

 

 

 

 

 

 

 

 

Station operating expenses, including non-cash compensation expense

 

276,187

 

283,541

 

259,630

 

247,647

 

244,174

 

Depreciation and amortization

 

20,442

 

16,631

 

15,812

 

16,660

 

15,861

 

Corporate G & A expenses, including non-cash compensation expense

 

26,917

 

28,888

 

33,794

 

18,868

 

15,711

 

Impairment loss

 

835,716

 

84,037

 

 

 

 

Net time brokerage agreement fees (income)

 

(233

)

14,001

 

2,766

 

(13

)

781

 

Net (gain) loss on sale of assets

 

(9,899

)

(647

)

1,280

 

(5,873

)

1,221

 

Expenses related to a natural disaster

 

 

 

 

1,697

 

 

Total operating expenses

 

1,149,130

 

426,451

 

313,282

 

278,986

 

277,748

 

Operating income (loss)

 

(710,308

)

41,900

 

126,347

 

152,813

 

145,078

 

Other (income) expense:

 

 

 

 

 

 

 

 

 

 

 

Interest expense, including amortization of deferred financing costs

 

45,040

 

51,183

 

44,173

 

29,925

 

21,560

 

Interest income and dividend income from investments

 

(323

)

(740

)

(823

)

(396

)

(235

)

Other Income

 

(3,339

)

(895

)

 

 

 

Gain (loss) on early extinguishment of debt

 

(6,949

)

458

 

 

 

1,387

 

Net (gain) loss on investments

 

469

 

(245

)

 

(2,819

)

176

 

Net gain on derivative instruments

 

(34

)

(162

)

(446

)

(1,327

)

(1,215

)

Total other expense

 

34,864

 

49,599

 

42,904

 

25,383

 

21,673

 

Income (loss) from continuing operations before income taxes (benefit)

 

(745,172

)

(7,699

)

83,443

 

127,430

 

123,405

 

Income taxes (benefit)

 

(232,600

)

695

 

35,596

 

49,164

 

47,843

 

Income (loss) from continuing operations

 

(512,572

)

(8,394

)

47,847

 

78,266

 

75,562

 

Income (loss) from discontinued operations, net of taxes (benefit)

 

(4,079

)

37

 

134

 

95

 

72

 

Net income (loss)

 

$

(516,651

)

$

(8,357

)

$

47,981

 

$

78,361

 

$

75,634

 

 

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Table of Contents

 

SELECTED FINANCIAL DATA

(amounts in thousands, except per share data)

 

 

 

Years Ended December 31,

 

 

 

2008

 

2007

 

2006

 

2005

 

2004

 

 

 

 

 

 

 

 

 

 

 

 

 

Net Income (Loss) Per Common Share - Basic:

 

 

 

 

 

 

 

 

 

 

 

Income (loss) from continuing operations

 

$

(13.94

)

$

0.22

 

$

1.20

 

$

1.70

 

$

1.51

 

Income (loss) from discontinued operations, net of taxes (benefit)

 

(0.11

)

 

 

 

 

Net income (loss) per common share - basic

 

$

(14.05

)

$

0.22

 

$

1.20

 

$

1.70

 

$

1.51

 

 

 

 

 

 

 

 

 

 

 

 

 

Net Income (Loss) Per Common Share - Diluted:

 

 

 

 

 

 

 

 

 

 

 

Income (loss) from continuing operations

 

$

(13.94

)

$

(0.22

)

$

1.19

 

$

1.70

 

$

1.50

 

Income (loss) from discontinued operations, net of taxes (benefit)

 

$

(0.11

)

 

 

 

 

Net income (loss) per common share - diluted

 

$

(14.05

)

$

(0.22

)

$

1.19

 

$

1.70

 

$

1.50

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted average shares - basic

 

36,782

 

38,230

 

39,973

 

46,045

 

50,215

 

Weighted average shares - diluted

 

36,782

 

38,230

 

40,205

 

46,221

 

50,534

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash Flows Data:

 

 

 

 

 

 

 

 

 

 

 

Cash flows related to:

 

 

 

 

 

 

 

 

 

 

 

Operating activities

 

$

130,617

 

$

93,492

 

$

101,583

 

$

136,552

 

$

131,482

 

Investing activities

 

31,944

 

(273,876

)

(45,146

)

(38,618

)

(107,911

)

Financing activities

 

(169,222

)

180,534

 

(61,713

)

(93,709

)

(27,619

)

 

 

 

 

 

 

 

 

 

 

 

 

Other Data:

 

 

 

 

 

 

 

 

 

 

 

Dividends declared and paid per Class A and Class B common share

 

$

0.58

 

$

1.52

 

$

1.52

 

$

 

$

 

 

 

 

December 31,

 

 

 

2008

 

2007

 

2006

 

2005

 

2004

 

Balance Sheet Data:

 

 

 

 

 

 

 

 

 

 

 

Cash and cash equivalents

 

$

4,284

 

$

10,945

 

$

10,795

 

$

16,071

 

$

11,844

 

Intangibles and other assets

 

825,404

 

1,452,598

 

1,524,018

 

1,491,812

 

1,455,205

 

Investment in deconsolidated subsidiaries and assets held for sale

 

 

250,936

 

 

 

 

Total assets

 

996,734

 

1,919,352

 

1,733,258

 

1,697,758

 

1,667,961

 

Senior debt, including current portion

 

750,197

 

823,718

 

526,239

 

427,259

 

333,276

 

Senior subordinated notes

 

83,500

 

150,000

 

150,000

 

150,000

 

150,000

 

Deferred tax liabilities and other long-term liabilities

 

30,489

 

249,499

 

237,621

 

199,846

 

162,846

 

Total shareholders’ equity

 

100,257

 

660,767

 

777,092

 

885,715

 

996,073

 

 

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Table of Contents

 

ITEM 7.    MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS  OF

                   OPERATIONS

 

Overview

 

                We are one of the largest radio broadcasting companies in the United States, based on revenues. We operate a nationwide portfolio in excess of 100 radio stations in 23 markets (based upon completion of pending acquisitions and dispositions), including San Francisco, Boston, Seattle, Denver, Sacramento, Portland, Indianapolis, Kansas City, Milwaukee, Austin, Norfolk, Buffalo, New Orleans, Memphis, Providence, Greensboro, Greenville/Spartanburg, Rochester, Madison, Wichita, Wilkes-Barre/Scranton, Springfield and Gainesville/Ocala.

 

A radio broadcasting company derives its revenues primarily from the sale of broadcasting time to local and national advertisers. The revenues are determined by the advertising rates charged and the number of advertisements broadcast. Advertising rates are primarily based on four factors:

 

·                  a station’s audience share in the demographic groups targeted by advertisers as measured principally by periodic reports issued by The Arbitron Ratings Company;

 

·                  the number of radio stations in the market competing for the same demographic groups;

 

·                  the supply of, and demand for, radio advertising time, both nationally and in the regions in which the station operates; and

 

·                  the market’s size based upon available radio advertising revenue.

 

     In 2008, we generated 77% of our net revenues from local advertising, which is sold primarily by each individual local radio station’s sales staff, and 20% from national advertising, which is sold by independent advertising sales representatives. Local and national revenues include advertising on our websites and the sale of advertising during audio streaming of our radio stations over the internet. We generated the balance of our 2008 revenues principally from network compensation, promotional activities and rental income from tower sites. Our most significant station operating expenses are employee compensation, and programming and promotional expenses.

 

                Several factors may adversely affect a radio broadcasting company’s performance in any given period. In the radio broadcasting industry, seasonal revenue fluctuations are common and are due primarily to variations in advertising expenditures by local and national advertisers. Typically, revenues are lowest in the first calendar quarter of the year.

 

                As opportunities arise, we may, on a selective basis, change or modify a station’s format due to changes in listeners’ tastes or changes in a competitor’s format. This could have an immediate negative impact on a station’s ratings and/or revenues, and there are no guarantees that the modification or change will be beneficial at some future time. Our management is continually focused on these opportunities as well as the risks and associated uncertainties. We strive to develop compelling content and strong brand images to maximize audience ratings that are crucial to our stations’ financial success.

 

                You should read the following discussion and analysis of our financial condition and results in conjunction with our consolidated financial statements and related notes included elsewhere in this report. The following results of operations include a discussion of the year ended December 31, 2008 as compared to the year ended December 31, 2007 and a discussion of the year ended December 31, 2007 as compared to the year ended December 31, 2006.  Our results of operations for the relevant periods represent the operations of the radio stations: (1) owned and operated by us; or (2) operated by us pursuant to time brokerage agreements (“TBA”); and exclude those owned by us but operated by others pursuant to TBAs.

 

                Under the heading “Same Station Considerations,” we evaluate net revenues, station operating expenses and operating income by comparing the performance of stations owned or operated by us throughout a relevant year to the performance of those same stations in the prior year whether or not owned or operated by us. We use these comparisons to assess the effect of acquisitions and dispositions of stations on our operations throughout the periods measured.

 

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Table of Contents

 

Results Of Operations

 

Year ended December 31, 2008 compared to the year ended December 31, 2007

 

The following significant factors affected our results of operations for the year ended December 31, 2008 as compared to the prior year:

 

Acquisitions

 

·                  On March 14, 2008, we acquired through an exchange agreement three radio stations in San Francisco, California, from Bonneville International Corporation (“Bonneville”). We began operating these stations on February 26, 2007 under a TBA that in 2008 increased our net revenues, station operating expenses and depreciation and amortization expense.

 

·                  On December 10, 2007, we acquired WVEI-FM (formerly WBEC-FM), a station in Springfield, Massachusetts, for $5.8 million in cash. We began operating this station on February 10, 2006 under a TBA by simulcasting the format of WEEI-AM (a radio station owned and operated by us in the Boston, Massachusetts, market). The impact to 2008 was an increase in our depreciation and amortization expense and interest expense.

 

·                  On November 30, 2007, we acquired from CBS Radio Stations Inc. (“CBS”) four radio stations in Austin, Texas, and three radio stations in Memphis, Tennessee, for $101.0 million in cash. We began operating these stations on November 1, 2006 under a TBA. The impact to 2008 was an increase in our depreciation and amortization expense and interest expense and a decrease in our TBA expense.

 

·                  On November 30, 2007, we acquired from CBS four radio stations in Cincinnati, Ohio, for $119.0 million in cash. From November 1, 2006 through February 25, 2007, we operated three of these stations under a TBA. On February 26, 2007, Bonneville began operating the same three stations under a TBA with us. The impact to 2008 was a decrease in our net revenues, station operating expenses and TBA fees and an increase to our interest expense.

 

·                  On November 30, 2007, we acquired from CBS four stations in Rochester, New York, for $42.0 million in cash. Of the four stations acquired, two stations were reflected in continuing operations and two stations were reflected in discontinued operations. For the two stations reflected in continuing operations, the impact to 2008 was an increase to our net revenues, station operating expenses, depreciation and amortization expense and interest expense.

 

Dispositions

 

·                  On July 14, 2008, we sold three of our eight Rochester, New York, radio stations for net cash proceeds of $12.2 million, which the buyer began operating on May 1, 2008 under a TBA with us. The results for these stations were reflected in discontinued operations.

 

·                  On March 14, 2008, we sold to Bonneville through an exchange agreement, three of our seven Seattle, Washington, radio stations which Bonneville began operating on February 26, 2007 under a TBA with us.  The impact to 2008, due to the cessation of operation of these stations on February 26, 2007, was a decrease in our net revenues, station operating expenses and depreciation and amortization expense.

 

·                  On March 14, 2008, we sold to Bonneville, through an exchange agreement, four Cincinnati, Ohio, radio stations we acquired during the fourth quarter of 2007 under two separate transactions. Pursuant to two TBA agreements, we operated these stations from November 1, 2006 through February 25, 2007.  On February 26, 2007, Bonneville began operating these stations under a TBA with us.  The impact to 2008, due to the cessation of operation of these stations on February 26, 2007, was a decrease in our net revenues and station operating expenses.

 

·                  On January 15, 2008, we sold KLQB-FM (formerly KXBT-FM), Austin, Texas, to Univision Radio Broadcasting Texas, L.P. (“Univision”) for $20.0 million in cash.  Univision began operating KLQB-FM under a TBA on February 26, 2007 (a station we began operating on November 1, 2006 under a TBA agreement with CBS). The impact to 2008, due to the cessation of operation of this station on February 26, 2007 and the sale on January 15, 2008, was a decrease in our net revenues, station operating expenses and interest expense.

 

20



Table of Contents

 

Financing

 

·                  Our interest expense decreased due to: (i) a decrease in interest rates; and (ii) the redemption of a portion of our Senior Subordinated Notes (the “Notes”) that had a higher interest rate than the rate under our senior debt. This decrease was offset by: (1) increased borrowings used to finance: (a) acquisitions during the fourth quarter of 2007 in the amount of $268.3 million; (b) the payment of cash dividends to our shareholders of $21.6 million in 2008 and $58.0 million in 2007; and (c) stock repurchases during 2008 of $13.9 million and during 2007 of $55.0 million; and (2) interest expense of $0.9 million related to the resolution of certain litigation.

 

·                  During the year ended December 31, 2008, we repurchased $66.5 million of Senior Subordinated Notes and recognized a net gain on extinguishment of debt of $6.9 million.

 

·                  On June 18, 2007, we entered into a new credit facility that resulted in the recognition of a $0.5 million loss on the early extinguishment of debt related to the write-off of deferred financing costs during the second quarter of 2007.

 

Other

 

·                  During the years ended 2008 and 2007, we recorded an impairment loss of $835.7 million and $84.0 million, respectively, in connection with our review of goodwill and broadcasting licenses under the provisions of SFAS No. 142. Please refer to Note 3 in the accompanying notes to the financial statements for further discussion of the contributing factors to the impairment loss.

 

·                  In 2008, our income tax benefit on loss from continuing operations was negatively impacted by an increase to our valuation allowance of $59.4 million to fully reserve our net deferred tax assets. The increase was primarily due to the cumulative losses incurred by us since 2006, which caused uncertainty as to the realization of the deferred tax assets in future years.

 

·                  During 2008, we recovered $3.6 million from our insurance company for damages resulting from Hurricane Katrina.

 

·                  During the first quarter of 2008, we reviewed our carrying amount for the Rochester assets then held for sale and determined that an impairment loss of $6.7 million was necessary as a result of the status of our then ongoing divestiture process.

 

·                  During the first quarter of 2007, we recorded a discrete income tax expense adjustment of $2.9 million as we commenced operations in 2007 in states which on average have higher income tax rates than in states in which we had previously operated.

 

Net Revenues:

 

 

 

December 31, 2008

 

December 31, 2007

 

 

 

(dollars in millions)

 

Net Revenues

 

$

438.8

 

$

468.4

 

Amount of Change

 

$

(29.6

)

 

 

Percentage Change

 

(6.3

)%

 

 

 

                Our decrease in net revenues was primarily due to: (1) weak demand for advertising in general that contributed to an overall decline in total market revenues in most of the markets where we operate stations; and (2) the commencement of operations by other parties under TBAs on: (a) February 26, 2007 for three of our seven Seattle radio stations; (b) February 26, 2007 for four radio stations in the Cincinnati market; and (c) February 26, 2007 for one radio station in the Austin market. Our decrease in net revenues was offset by: (i) the acquisition on November 30, 2007 of four radio stations in the Rochester market of which two radio stations were reflected in continuing operations; (ii) the commencement by us of operations under a TBA on February 26, 2007 of three radio stations in the San Francisco market; and (iii) increases in net revenues for our radio stations in markets such as Buffalo, Madison and Milwaukee.

 

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Table of Contents

 

Same Station Considerations:

 

·                  Net revenues in 2008 were not impacted by any acquisitions or dispositions of radio stations as of the beginning of the period.

 

·                  Net revenues in 2007 would have been higher by $3.3 million if we had adjusted net revenues to give effect to acquisitions or dispositions of radio stations as of the beginning of the period.

 

Station Operating Expenses:

 

 

 

December 31, 2008

 

December 31, 2007

 

 

 

(dollars in millions)

 

Station Operating Expenses

 

$

276.2

 

$

283.5

 

Amount of Change

 

$

(7.3

)

 

 

Percentage Change

 

(2.6

)%

 

 

 

The decrease in station operating expenses was primarily due to the factors leading to the decrease in net revenues as described above as certain variable expenses decrease with a corresponding decrease in net revenues, offset by the effects of inflation.

 

In the fourth quarter of 2008, we initiated several cost reduction initiatives, including certain station operating expense and personnel reductions and the cessation of our Company’s voluntary employee benefits matching programs. While the impact of these initiatives were not material in this quarter, future periods will benefit from these actions and any further cost reduction actions.

 

Same Station Considerations:

 

·      Station operating expenses in 2008 were not impacted by any acquisitions or dispositions of radio stations as of the beginning of the period.

 

·                  Station operating expenses in 2007 would have been higher by $1.9 million if we had adjusted station operating expenses to give effect to acquisitions or dispositions of radio stations as of the beginning of the period.

 

Depreciation And Amortization Expenses:

 

 

 

December 31, 2008

 

December 31, 2007

 

 

 

(dollars in millions)

 

Depreciation and Amortization Expenses

 

$

20.4

 

$

16.6

 

Amount of Change

 

$

3.8

 

 

 

Percentage Change

 

22.9

%

 

 

 

                Depreciation and amortization expense increased due to the acquisitions of radio station assets in the first quarter of 2008 and in the fourth quarter of 2007 (other than those assets in Rochester, New York, that were acquired and held for sale or those assets in Cincinnati, Ohio, which were acquired and reflected as an investment in deconsolidated subsidiaries), which included certain amortizable assets with lives of a short duration.

 

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Table of Contents

 

Corporate General And Administrative Expenses:

 

 

 

December 31, 2008

 

December 31, 2007

 

 

 

(dollars in millions)

 

Corporate General and Administrative Expenses

 

$

26.9

 

$

28.9

 

Amount of Change

 

$

(2.0

)

 

 

Percentage Change

 

(6.9

)%

 

 

 

                Corporate general and administrative expenses decreased primarily due to: (1) a decrease in legal expenses of $1.4 million primarily associated with certain legal proceedings in the year ended December 31, 2007 which did not reoccur in 2008; and (2) a deferred compensation expense reduction of $1.0 million as a result of a decrease in the value of the unfunded obligation.  The decrease in corporate general and administrative expense was offset by an increase in non-cash compensation expense of $1.5 million due to: (a) the cumulative effect of equity awards issued over multiple years, including 2008, with the awards vesting over periods of up to four years; and (b) the acceleration of vesting of equity awards for a key officer.

 

Operating Income (Loss):

 

 

 

December 31, 2008

 

December 31, 2007

 

 

 

(dollars in millions)

 

Operating Income (Loss)

 

$

(710.3

)

$

41.9

 

Amount of Change

 

$

(752.2

)

 

 

Percentage Change

 

NM

 

 

 

 

                The decrease in operating income to an operating loss was primarily due to an increase in an impairment loss of $751.7 million in connection with our review of broadcasting licenses and goodwill during the fourth quarter of 2008 and our review of goodwill during the second quarter of 2008 (see Note 3 in the accompanying notes to the financial statements), which loss was primarily due to: (1) an increase in the discount rate used; (2) a decrease in station transaction multiples; and (3) a decrease in advertising revenue growth projections for the broadcasting industry. This decrease in operating income was offset by: (i) a decrease in time brokerage agreement fees of $14.2 million, primarily due to the cessation of a TBA with CBS on November 30, 2007; and (ii) an increase in net gain on sale or disposal of assets of $9.3 million primarily related to our sale of three radio stations in Seattle, Washington, in connection with our Bonneville exchange agreement that was completed during the first quarter of 2008.

 

                Same Station Considerations:

 

·                  Operating loss in 2008 was not impacted by any acquisitions or dispositions of radio stations as of the beginning of the period.

 

·                  Operating income in 2007 would have been higher by $1.4 million if we had adjusted operating income to give effect to acquisitions or dispositions of radio stations as of the beginning of the period.

 

Interest Expense:

 

 

 

December 31, 2008

 

December 31, 2007

 

 

 

(dollars in millions)

 

Interest Expense

 

$

45.0

 

$

51.2

 

Amount of Change

 

$

(6.2

)

 

 

Percentage Change

 

(12.1

)%

 

 

 

                The decrease in interest expense was primarily due to: (i) a decline in interest rates during the year ended December 31, 2008 as compared to the year ended December 31, 2007; and (ii) the repurchase during 2008 of $66.5 million of our Senior Subordinated Notes which have a higher interest rate than the replacement debt. This decrease was offset by: (1) higher average outstanding debt under our senior credit agreement used to finance: (a) the acquisition of radio station assets in several markets in the amount of $268.3 million during the fourth quarter of 2007; (b) dividend payments of $21.6 million in 2008 and

 

23



Table of Contents

 

$58.0 million in 2007; and (c) the repurchase of our common stock in the amount of $13.9 million during 2008; and (2) higher interest expense of $0.9 million related to the resolution of certain litigation.

 

Loss From Continuing Operations Before Income Tax Provision (Benefit):

 

 

 

December 31, 2008

 

December 31, 2007

 

 

 

(dollars in millions)

 

Loss From Continuing Operations Before Income Tax Provision (Benefit)

 

$

(745.2

)

$

(7.7

)

Amount of Change

 

$

(737.5

)

 

 

Percentage Change

 

NM

 

 

 

 

                The net change was primarily attributable to an increase in impairment loss of $751.7 million due to the reasons as described above under Operating Income (Loss). The increase in loss from continuing operations before income tax provision (benefit) was offset by: (1) a $6.9 million gain on the retirement of our senior subordinated debt; (2) a decrease in our interest expense of $6.1 million for the reasons described above under Interest Expense; and (3) a $2.4 million increase in other income related to an insurance recovery.

 

Income Tax Provision (Benefit):

 

 

 

December 31, 2008

 

December 31, 2007

 

 

 

(dollars in millions)

 

Income Tax Provision (Benefit)

 

$

(232.6

)

$

0.7

 

Amount of Change

 

$

(233.3

)

 

 

Percentage Change

 

NM

 

 

 

 

The net change in income tax provision (benefit) was primarily the result of the net change as described above under Loss From Continuing Operations Before Income Tax Provision (Benefit).  In addition, we recorded discrete items of tax of: (1) $59.4 million for the year ended December 31, 2008 primarily due to an increase to our valuation allowance to fully reserve our net deferred tax assets; and (2) $2.9 million for the year ended December 31, 2007 resulting from the commencement of operations in 2007 in states which on average have higher income tax rates than in states in which we previously operated and the resulting effect on previously reported temporary differences between the tax and financial reporting bases of our assets and liabilities.

 

For the years ended December 31, 2008 and 2007, our income tax rate was 31.2% and 9.0%, respectively. Included in the tax rate for the years ended December 31, 2008 and 2007 were discrete items of tax (as described above) in the amount of $59.4 million and $2.9 million, respectively.

 

For the year ended December 31, 2008, the income tax benefit was $232.6 million, which resulted from a reduction in deferred tax liabilities primarily due to the recording of an impairment loss of $835.7 million.  For the year ended December 31, 2007, the income tax expense of $0.7 million was comprised of a current tax credit of $8.9 million and a deferred tax expense of $9.6 million.

 

                We estimate that our annual tax rate for 2009, which may fluctuate from quarter to quarter, will be in the low 40% range (before any necessary adjustment to the valuation allowance). We estimate that our rate in 2009 will be affected primarily by: (1) changes in the level of income in any of our taxing jurisdictions; (2) adding facilities in states that on average have different income tax rates than states in which we currently operate and the resulting effect on previously reported temporary differences between the tax and financial reporting bases of our assets and liabilities; (3) the effect of recording changes in our Financial Interpretation No. (“FIN”) 48 liabilities; and (4) the limitations on the deduction of cash and certain non-cash compensation expense for certain key employees.  Our effective tax rate may also be materially impacted by: (i) regulatory changes in certain states in which we operate; (ii) changes in the expected outcome of tax audits; (iii) changes in the estimate of expenses that are not deductible for tax purposes; and (iv) changes in the deferred tax valuation allowance.

 

                Our net non-current deferred tax liabilities were eliminated as of December 31, 2008 primarily due to the deferred tax benefit associated with the $835.7 million impairment loss to our indefinite-lived intangible assets. Our net non-current deferred tax liabilities as of December 31, 2007 were $235.6 million. The deferred tax liabilities primarily relate to differences between book and tax bases of certain of our indefinite-lived intangibles (broadcasting licenses and goodwill). Under the

 

24



Table of Contents

 

provisions of SFAS No. 142, we do not amortize our indefinite-lived intangibles for financial statement purposes, but instead test them annually for impairment. The amortization of our indefinite-lived assets for tax purposes but not for book creates deferred tax liabilities.  A reversal of deferred tax liabilities may occur when: (1) indefinite-lived intangibles become impaired; or (2) indefinite-lived intangibles are sold for cash, which would typically only occur in connection with the sale of the assets of a station or groups of stations or the entire company in a taxable transaction.

 

Loss From Continuing Operations:

 

 

 

December 31, 2008

 

December 31, 2007

 

 

 

(dollars in millions)

 

Loss from Continuing Operations

 

$

(512.6

)

$

(8.4

)

Amount of Change

 

$

(504.2

)

 

 

Percentage Change

 

NM

 

 

 

 

                The increase in loss from continuing operations is primarily due to the reasons described above under Loss From Continuing Operations Before Income Tax Provision (Benefit), net of income taxes (benefit).

 

Income (Loss) From Discontinued Operations, Net Of Income Tax Provision (Benefit):

 

 

 

December 31, 2008

 

December 31, 2007

 

 

 

(dollars in millions)

 

Income (Loss) from Discontinued Operations, Net Of Income Tax Provision (Benefit)

 

$

(4.1

)

$

-0-

 

Amount of Change

 

$

(4.1

)

 

 

Percentage Change

 

NM

 

 

 

 

The net change was primarily due to a non-cash impairment loss of $4.6 million (net of an income tax benefit of $2.1 million) in the first quarter of 2008 for the Rochester assets which were then held for sale and were subsequently disposed of during the third quarter of 2008.

 

Net Loss:

 

 

 

December 31, 2008

 

December 31, 2007

 

 

 

(dollars in millions)

 

Net Loss

 

$

(516.7

)

$

(8.4

)

Amount of Change

 

$

(508.3

)

 

 

Percentage Change

 

NM

 

 

 

 

The net change was primarily attributable to the reasons described above under Loss From Continuing Operations Before Income Tax Provision (Benefit) and the income benefit as described above under Income Tax Provision (Benefit).

 

Year ended December 31, 2007 compared to the year ended December 31, 2006

 

The following significant factors affected our results of operations for the year ended December 31, 2007 as compared to the prior year:

 

Acquisitions

 

·                  On December 10, 2007 we acquired WVEI-FM (formerly WBEC-FM), a station in Springfield, Massachusetts, for $5.8 million in cash. We began operating this station on February 10, 2006 under a TBA, by simulcasting the format of WEEI-AM (a radio station owned and operated by us in the Boston, Massachusetts, market). The impact to 2007 was an increase in our net revenues, station operating expenses, depreciation and amortization expense and interest expense.

 

25



·                  On December 5, 2007, we completed an exchange transaction with Cumulus pursuant to which we acquired a Cincinnati, Ohio, radio station, WSWD-FM, in exchange for another Cincinnati, Ohio, radio station, WGRR-FM (which we acquired from CBS as described below). On November 1, 2006, each party began operating the other party’s respective radio station under a TBA.  Subsequently, on February 26, 2007, Bonneville began operating WSWD-FM under a TBA. For 2007, the operation of WSWD-FM by us increased our net revenues and decreased our station operating expenses.

 

·                  On November 30, 2007, we acquired from CBS four radio stations in Austin, Texas, and three radio stations in Memphis, Tennessee, for $101.0 million in cash. We began operating these stations on November 1, 2006 under a TBA. For 2007, the operation and subsequent acquisition of these stations increased our net revenues, station operating expenses, depreciation and amortization expense, TBA expense and interest expense.

 

·                  On November 30, 2007, we acquired from CBS four radio stations in Cincinnati, Ohio, for $119.0 million in cash. From November 1, 2006 through February 25, 2007, we operated three of these stations under a TBA.  On February 26, 2007, Bonneville began operating the same three stations under a TBA with us. During the period we operated and subsequently acquired these stations, for 2007, our net revenues and our station operating expenses decreased and our TBA expense and interest expense increased.

 

·                  On November 30, 2007, we acquired from CBS four stations in Rochester, New York, for $42.0 million in cash. Of the four stations acquired, two stations were reflected in continuing operations and two stations were reflected in discontinued operations. For the two stations reflected in continuing operations, the impact to 2007 was an increase to our net revenues, station operating expenses, depreciation and amortization expense and interest expense.

 

·                  On February 26, 2007, in connection with our pending radio station exchange with Bonneville, we began operating three radio stations in San Francisco, California, under a TBA agreement. In 2007, the operation of these stations increased our net revenues and station operating expenses.

 

·                  On December 29, 2006, we acquired WKAF-FM (formerly WILD-FM) in Boston, Massachusetts, for $30.0 million in cash. We began operating this station on August 21, 2006 under a TBA by simulcasting the format of WAAF-FM (another radio station owned and operated by us in this market). For 2007, the operation and subsequent acquisition of this station resulted in an increase in our net revenues, station operating expenses, depreciation and amortization, and interest expense.

 

Dispositions

 

·                  We recognized as discontinued operations three stations in Rochester, New York (two of these stations were acquired from CBS on November 30, 2007).

 

·                  On February 26, 2007, in connection with our pending radio station exchange with Bonneville, Bonneville began operating three of our seven Seattle, Washington, radio stations, under a TBA with us. In 2007, our cessation of operation of these stations decreased our net revenues, station operating expenses and depreciation and amortization expense and increased our TBA income.

 

·                  On February 26, 2007, a buyer began operating KLQB-FM (formerly KXBT-FM), Austin, Texas, under a TBA (a station we began operating on November 1, 2006 under a TBA agreement with CBS). For 2007, our cessation of operation of this station decreased our net revenues and station operating expenses and increased our TBA income.

 

·                  On February 1, 2007, a third party began operating KTRO-AM (formerly KKSN-AM), Portland, Oregon, under a TBA. For 2007, our cessation of operation of this station decreased our net revenues, station operating expenses, depreciation and amortization expense and increased our TBA income.

 

Financing

 

·                  On June 18, 2007, we entered into a new credit facility that resulted in the recognition of a $0.5 million loss on the early extinguishment of debt related to the write-off of deferred financing costs.

 

26



·                  Our interest expense increased due to additional interest expense on increased borrowings under our current and former senior credit facilities used to finance: (1) the payment of quarterly cash dividends to our shareholders that commenced during the first quarter of 2006; (2) the repurchase of our stock; and (3) radio station acquisitions during the fourth quarters of 2007 and 2006.

 

Other

 

·                  In connection with our review of our FCC licenses under the provisions of SFAS No. 142, we recorded an impairment loss of $38.7 million in the consolidated statements of operations for the year ended December 31, 2007. One of the contributing factors that caused the impairment loss was a decrease in forecasted growth of advertising for the radio industry. In addition, the impairment loss recorded for the broadcasting licenses in New Orleans was primarily due to the longer-than-expected economic recovery of the region after Hurricane Katrina.

 

·                  In the second quarter of 2007, we recorded a non-cash impairment loss of $45.3 million, with respect to our Denver market, in connection with our review of goodwill under the provisions of SFAS No. 142. A contributing factor to the impairment was a decline in the aggregate advertising dollars in the Denver market and its effect on our operations.

 

·                  In 2006, we reflected $9.4 million in corporate general and administrative expenses relating to an investigation by and settlement with the New York Attorney General (“NYAG”) plus a reserve for an investigation by the FCC.

 

·                  During the first quarter of 2007, we recorded a discrete income tax expense adjustment of $2.9 million as we commenced operations in 2007 in states which on average have higher income tax rates than in states in which we previously operated.

 

·                  Non-cash compensation expense increased in 2007 as we granted equity awards in 2007 and in 2006. (Due to the acceleration of most unvested out-of-the-money options prior to the adoption of SFAS No. 123R on January 1, 2006, our non-cash compensation expense in 2007 and in 2006 was not impacted by the expense recognition requirements for most of our options granted prior to January 1, 2006.)

 

Net Revenues:

 

 

 

December 31, 2007

 

December 31, 2006

 

 

 

(dollars in millions)

 

Net Revenues

 

$

468.4

 

$

439.6

 

Amount of Change

 

$

28.8

 

 

 

Percentage Change

 

6.6

%

 

 

 

Our overall increase in net revenues during 2007 was primarily due to our commencement of operations: (1) on November 1, 2006 in the Austin and Memphis markets under a TBA; (2) on February 26, 2007 in the San Francisco market under a TBA; and (3) on November 30, 2007 upon the acquisition from CBS of four stations in the Rochester market, of which two stations were included in continuing operations. This increase was partially offset by the decrease in net revenues due to the commencement of operations by other parties under TBAs on: (i) February 26, 2007 for three of our seven Seattle stations; (ii) February 26, 2007 for a station in the Austin market; and (iii) February 1, 2007 for one of our seven Portland stations.  Austin and San Francisco were new markets for our operations.  Due to the exit by us from the Cincinnati market on February 26, 2007, which was a new market for us in 2006, our net revenues decreased in 2007 as compared to 2006. Our performance was affected by a challenging and varied advertising environment, as we experienced increases in net revenues for many of our radio stations in markets such as Boston, Seattle and Indianapolis, partially offset by decreases in net revenues for many of our radio stations in markets such as Greenville, Norfolk and Sacramento.

 

Same Station Considerations:

 

·              Net revenues in 2007 would have been lower by $38.6 million if we had adjusted net revenues to give effect to acquisitions or dispositions of radio stations as of January 1, 2007.

 

·              Net revenues in 2006 would have been lower by $11.2 million if we had adjusted net revenues to give effect to acquisitions or dispositions of radio stations as of January 1, 2006.

 

27



Station Operating Expenses:

 

 

 

December 31, 2007

 

December 31, 2006

 

 

 

(dollars in millions)

 

Station Operating Expenses

 

$

283.5

 

$

259.6

 

Amount of Change

 

$

23.9

 

 

 

Percentage Change

 

9.2

%

 

 

 

The increase in station operating expenses was primarily due to: (1) our commencement of operations: (a) on November 1, 2006 in the Austin and Memphis markets under a TBA; (b) on February 26, 2007 in the San Francisco market under a TBA; and (c) on December 1, 2007 upon the acquisition of four stations in the Rochester market, of which two stations were included in continuing operations; (2) an increase in rights fees in the first year of a recently renewed ten-year sports rights agreement with the Boston Red Sox; (3) an increase in non-cash compensation expense of $1.2 million; and (4) the effects of inflation. This increase was offset by the decrease in station operating expenses resulting from the commencement of operations by other parties under TBAs on: (i) February 26, 2007 for three of our seven stations in the Seattle market; (ii) February 26, 2007 for one of our four stations in the Austin market; and (iii) February 1, 2007 for one of our seven stations in the Portland market.  Due to the exit by us from the Cincinnati market in 2007, which was a new market for us in 2006, our station operating expenses decreased in 2007 as compared to 2006.

 

Same Station Considerations:

 

·              Station operating expenses for 2007 would have been lower by $23.0 million if we had adjusted station operating expenses to give effect to acquisitions or dispositions of radio stations as of January 1, 2007.

 

·              Station operating expenses for 2006 would have been lower by $6.9 million if we had adjusted station operating expenses to give effect to acquisitions or dispositions of radio stations as of January 1, 2006.

 

Depreciation And Amortization Expenses:

 

 

 

December 31, 2007

 

December 31, 2006

 

 

 

(dollars in millions)

 

Depreciation and Amortization Expenses

 

$

16.6

 

$

15.8

 

Amount of Change

 

$

0.8

 

 

 

Percentage Change

 

5.1

%

 

 

 

Depreciation and amortization expenses increased in the fourth quarter of 2007 as we consummated $268.3 million in acquisitions with certain assets subject to amortization and depreciation.

 

Corporate General And Administrative Expenses:

 

 

 

December 31, 2007

 

December 31, 2006

 

 

 

(dollars in millions)

 

Corporate General and Administrative Expenses

 

$

28.9

 

$

33.8

 

Amount of Change

 

$

(4.9

)

 

 

Percentage Change

 

(14.5

)%

 

 

 

The decrease in corporate general and administrative expenses was primarily due to the recognition of certain expenses in 2006 of: (1) $9.4 million relating to an investigation by and settlement with the NYAG, plus a reserve for an investigation by the FCC; and (2) $1.2 million from the write-off of transaction costs during the first quarter of 2006 that were associated with an acquisition that did not materialize. The decrease in corporate general and administrative expenses was partially offset by: (i) legal costs of $1.6 million associated with the legal proceedings described in Part I, Item 3, “Legal Proceedings”; (ii) an increase in non-cash compensation expense of $1.6 million for equity awards we granted in 2007 and in 2006 (due to the acceleration of most unvested out-of-the-money options prior to the adoption of SFAS No. 123R on January 1, 2006, our non-cash compensation expense in 2007 and in 2006 was not impacted by the expense recognition requirements for

 

28



most of our options granted prior to January 1, 2006.); (iii) the addition in 2007 of several corporate positions; and (iv) the effects of inflation.

 

Operating Income:

 

 

 

December 31, 2007

 

December 31, 2006

 

 

 

(dollars in millions)

 

Operating Income

 

$

41.9

 

$

126.3

 

Amount of Change

 

$

(84.4

)

 

 

Percentage Change

 

(66.8

)%

 

 

 

The decrease in operating income was primarily due to: (1) the impairment loss totaling $84.0 million for the year ended December 31, 2007 (for further discussion, please see Note 3 in the accompanying consolidated financial statements); and (2) an increase in TBA fees primarily associated with the CBS transaction. This decrease in operating income was partially offset by: (i) an increase in net revenues for the reasons described above under Net Revenues, net of an increase in station operating expenses for the reasons described above under Station Operating Expenses; (ii) a decrease in corporate general and administrative expenses for the reasons described under Corporate General And Administrative Expenses; and (iii) a net gain on sale or disposal of assets of $0.6 million for the year ended December 31, 2007 from a loss of $1.3 million for the year ended December 31, 2006, primarily related to the recovery in 2007 of insurance proceeds.

 

Same Station Considerations:

 

·              Operating income in 2007 would have been lower by $15.6 million if we had adjusted operating income to give effect to acquisitions or dispositions of radio stations (exclusive of depreciation and amortization expenses and TBA fees, where applicable).

 

·              Operating income in 2006 would have been lower by $4.3 million if we had adjusted operating income to give effect to acquisitions or dispositions of radio stations (exclusive of depreciation and amortization expenses and TBA fees, where applicable).

 

Interest Expense:

 

 

 

December 31, 2007

 

December 31, 2006

 

 

 

(dollars in millions)

 

Interest Expense

 

$

51.2

 

$

44.2

 

Amount of Change

 

$

7.0

 

 

 

Percentage Change

 

15.8

%

 

 

 

The increase in interest expense was primarily attributable to higher average outstanding debt under our senior credit agreement used to finance: (1) the repurchase of our common stock in the amount of $55.0 million during the year ended December 31, 2007 and $100.5 million for the year ended December 31, 2006; (2) quarterly dividend payments that commenced during the first quarter of 2006; and (3) the acquisition of radio station assets in several markets for $268.3 million during the fourth quarter of 2007 and $30.0 million during the fourth quarter of 2006. The increase in interest expense was partially offset by a decrease in borrowing costs in 2007 related to the refinancing of our senior credit agreement during the second quarter of 2007.

 

Income (Loss) From Continuing Operations Before Income Taxes:

 

 

 

December 31, 2007

 

December 31, 2006

 

 

 

(dollars in millions)

 

Income (Loss) From Continuing Operations Before Income Taxes

 

$

(7.7

)

$

83.4

 

Amount of Change

 

$

(91.1

)

 

 

Percentage Change

 

(109.2

)%

 

 

 

29



The decrease in income (loss) from continuing operations before income taxes to a loss from continuing operations before income taxes was mainly attributable to: (1) a decrease in operating income of $84.4 million due to the factors described above under Operating Income; and (2) an increase in interest expense of $7.0 million for the reasons described above under Interest Expense.

 

Income Taxes:

 

 

 

December 31, 2007

 

December 31, 2006

 

 

 

(dollars in millions)

 

Income Taxes

 

$

0.7

 

$

35.6

 

Amount of Change

 

$

(34.9

)

 

 

Percentage Change

 

(98.0

)%

 

 

 

The decrease in income taxes is primarily the result of a deferred tax benefit of $33.0 million that was associated with a goodwill and FCC license impairment loss of $84.0 million for the year ended December 31, 2007 as described above under Operating Income. Income tax expense as a percentage of income (loss) from continuing operations before income taxes was 9.0% in 2007 as compared to 42.7% in 2006.  If we were to exclude the impairment loss and discrete items of tax in 2007, our income tax expense as a percentage of income from continuing operations would have been similar to the rate in 2006.

 

The income tax rate of 9.0% on a loss from continuing operations before tax for 2007 was negatively impacted by discrete items of tax, such as: (1) a $2.9 million increase in taxes due to the commencement of operations in 2007 in states that on average have higher income tax rates than states in which we previously operated and the resulting effect on previously reported temporary differences between the tax and financial reporting bases of our assets and liabilities; (2) the effect of permanent differences between income subject to income tax for book and tax purposes (3) limits on the deduction of certain compensation expense; (4) income taxes in certain states where the states’ current taxable income is dependent on factors other than our consolidated net income; and (5) the effect of recording changes in our FIN 48 liabilities for interest and penalties, subsequent to adoption of FIN 48 on January 1, 2007. The effective tax rate in 2007 was favorably impacted by a deferred tax asset of $0.5 million (net of a valuation allowance of $0.7 million) from a state income tax credit that resulted from the relocation of certain studio facilities in that state.

 

Including the tax effect of income from discontinued operations, (1) for the year ended December 31, 2007, the current and deferred portions of our income tax expense were a tax benefit of $8.9 million and a tax expense of $9.6 million, respectively; and (2) for the year ended December 31, 2006, the current and deferred portions of our income tax expense were a tax benefit of $0.3 million and an income tax expense of $36.0 million, respectively.

 

Our net non-current deferred tax liabilities were $235.6 million and $229.2 million as of December 31, 2007 and 2006, respectively. The deferred tax liability primarily relates to differences between book and tax bases of our FCC licenses. Under the provisions of SFAS No. 142, we do not amortize our FCC licenses for financial statement purposes, but instead test them annually for impairment. Since our FCC licenses are amortized for tax purposes, our deferred tax liability will increase over time. We do not expect the significant portion of our deferred tax liability to reverse unless: (1) our FCC licenses become impaired; or (2) our FCC licenses are sold for cash, which would typically only occur in connection with the sale of the assets of a station or groups of stations or the entire company in a taxable transaction.  Due to the impairment loss in 2007, our deferred tax liabilities decreased by $33.0 million.

 

Income (Loss) From Continuing Operations:

 

 

 

December 31, 2007

 

December 31, 2006

 

 

 

(dollars in millions)

 

Income (Loss) from Continuing Operations

 

$

(8.4

)

$

47.8

 

Amount of Change

 

$

(56.2

)

 

 

Percentage Change

 

(117.6

)%

 

 

 

The decrease in income (loss) from continuing operations was primarily attributable to the reasons described above under Income (Loss) From Continuing Operations Before Income Taxes, net of income tax expense.

 

30



Liquidity And Capital Resources

 

Our Credit Agreement

 

Our credit agreement (the “Bank Facility”), currently with a syndicate of  19 banks, provides for a $1,050 million senior secured credit facility that matures on June 30, 2012 and is comprised of $650 million in revolving credit (“Revolver”) and a $400 million term loan (“Term A”). The Term A reduces beginning September 30, 2009 in quarterly amounts starting at $15 million and increasing to $60 million. The Revolver provides us with working capital and funds for general corporate purposes, including capital expenditures and any one or more of the following: repurchases of Class A common stock, repurchases of our Senior Subordinated Notes, dividends and acquisitions. The Bank Facility is secured by a pledge of 100% of the capital stock and other equity interest in all of our wholly owned subsidiaries. The Bank Facility requires us to comply with certain financial covenants and leverage ratios which are defined terms within the agreement, including: (1) Total Debt to Operating Cash Flow of 6 times; and (2) Operating Cash Flow to Interest Expense of 2 times. Management believes we are in compliance with all financial covenants and leverage ratios and all other terms of the Bank Facility.

 

Our Former Credit Agreement

 

Our former credit agreement (“Former Facility”) consisted of a five-year $900 million (as amended) senior secured revolving credit agreement with a syndicate of banks that was to mature on August 11, 2009.  The Former Facility was secured by a pledge of 100% of the capital stock and other equity interest in all of our 100% owned subsidiaries and required us to comply with certain financial covenants and leverage ratios, which were defined terms within the agreement.

 

Liquidity

 

We have used a significant portion of our capital resources to acquire radio station assets, repurchase shares of our Class A common stock, pay dividends to our shareholders and repurchase some of our Senior Subordinated Notes. Generally, our acquisitions, share repurchases, reductions of our outstanding debt, dividends, Senior Subordinated Note repurchases and other capital requirements are funded from one or a combination of the following sources: (1) internally generated cash flow; (2) our credit agreement; (3) the sales of radio stations; and (4) the issuance and sale of securities.

 

As of December 31, 2008, $298.5 million was the maximum amount available under our current $1,050 million Bank Facility that matures on June 30, 2012. The amount available for borrowing is determined by our financial covenants, which are impacted by many factors, including but not limited to changes in our operating performance, acquisitions, dispositions and debt retirement.  Assuming the use of the borrowed proceeds has no effect on operating cash flow (as determined under our Bank Facility), as of December 31, 2008, $122.8 million of the $298.5 million is available for borrowing as a result of our Bank Facility’s leverage ratio covenant.

 

As of December 31, 2008, we had $4.3 million in cash and cash equivalents. During the year ended December 31, 2008, we decreased our net outstanding debt by $140.0 million (which includes a $7.9 million discount on the retirement of our senior subordinated debt) due in part to the cash available from the sale of a station in Austin, Texas, for $20.0 million, $12.2 million net cash proceeds made available from the sale of three radio stations in our Rochester, New York, market as well as the receipt of $14.6 million in refunded income taxes. As of December 31, 2008, we had outstanding $835.2 million in senior debt, including: (1) $750.0 million under our Bank Facility; (2) $83.5 million in Senior Subordinated Notes; and (3) $1.5 million in a letter of credit.

 

We may seek to obtain other funding or additional financing from time to time. We believe that cash on hand and cash from operating activities, together with available borrowings under the Bank Facility, will be sufficient to permit us to meet our liquidity requirements in 2009. Our lenders require that we must be in compliance with certain covenants in our credit agreements, and we believe that we will maintain our compliance with these covenants. The current economic crisis has reduced demand for advertising in general, including advertising on our radio stations.  If our revenues were to be significantly less than planned due to difficult market conditions or for other reasons, our ability to maintain compliance with the financial covenants in our credit agreements would become increasingly difficult without remedial measures.  Such remedial measures would include management’s plans to further reduce operating costs and opportunistically repurchase Senior Subordinated Notes at a discount. If our remedial measures were not successful in maintaining covenant compliance, then we would negotiate with our lenders for relief, which relief could result in higher interest expense.  Failure to comply with our financial covenants or other terms of our credit agreements and failure to negotiate relief from our lenders could result in the acceleration of the maturity of all outstanding debt. Under these circumstances, the acceleration of our debt could have a material adverse effect on our business.

 

31



Operating Activities

 

Net cash flows provided by operating activities were $130.6 million and $93.5 million for the years ended December 31, 2008 and 2007, respectively. The increase in 2008 was mainly attributable to a net decrease in working capital requirements of $42.0 million, primarily due to: (1) a $22.2 million reduction in prepaid and refundable income taxes as we received income tax refunds in 2008 of $14.6 million; (2) a $13.8 million reduction in outstanding accounts receivable; and (3) an increase in accounts payable and accrued liabilities of $6.7 million primarily due to $8.3 million that was accrued as of December 31, 2006, paid in 2007 and that related to a settlement with the NYAG and an investigation by the FCC.

 

Net cash flows provided by operating activities were $93.5 million for the year ended December 31, 2007 as compared to $101.6 million for the year ended December 31, 2006.  The decrease was primarily due to: (1) a decrease in net income (after excluding the effect of a non-cash loss on impairment of $51.0 million, net of a tax benefit of $33.0 million) largely due to an increase in TBA fees and interest expense for the reasons described under Results of Operations; and (2) an increase in working capital of $10.6 million that was primarily due to: (a) the payment in 2007 of the $8.3 million in accrued expenses as of December 31, 2006 relating to an investigation by and settlement with the NYAG plus a reserve for an investigation by the FCC; and (b) an increase in prepaid and refundable income taxes associated with the 2007 loss for tax purposes that will be refundable from prior years’ tax obligations.

 

Investing Activities

 

Net cash flows provided by investing activities were $31.9 million for the year ended December 31, 2008, and net cash flows used in investing activities were $273.9 million for the year ended December 31, 2007. For the year ended December 31, 2008, the cash provided by investing activities primarily reflects $20.0 million in proceeds from the sale of a station in Austin and $12.2 million net cash proceeds from the sale of three stations in Rochester, New York, offset by cash used in investing activities for the additions to property and equipment of $8.6 million.

 

Net cash flows used in investing activities were $273.9 million for the year ended December 31, 2007, as compared to $45.1 million for the year ended December 31, 2006.  The net cash flows used in investing activities for the year ended December 31, 2007 as compared to the year ended December 31, 2006 reflect: (1) purchases of radio station assets of $268.3 million compared to $30.0 million, respectively; and (2) additions to property and equipment of $9.3 million as compared to $13.7 million, respectively. The net cash flows used in investing activities for the year ended December 31, 2007 were offset by: (i) $2.9 million from the sale of investments; (ii) $1.8 million from insurance recovery proceeds; and (iii) $1.4 million from the reduction of station acquisition deposits and costs.

 

Financing Activities

 

Net cash flows used in financing activities were $169.2 million for the year ended December 31, 2008, and the net cash flows provided by financing activities were $180.5 million for the year ended December 31, 2007. For the year ended December 31, 2008, the cash flows used in financing activities primarily reflect the net repayment of debt (including the repurchase of our Senior Subordinated Notes) of $132.2 million, the payment of dividends of $21.6 million and the repurchase of our common stock of $13.9 million.

 

Net cash flows provided by financing activities were $180.5 million for the year ended December 31, 2007 as compared to net cash flows used in financing activities of $61.7 million for the year ended December 31, 2006. The net cash flows provided by financing activities for the year ended December 31, 2007 reflect a net increase in outstanding indebtedness of $297.5 million, offset by: (1) the payment of $58.0 million in dividends; (2) the repurchase of $55.0 million of our Class A common stock; and (3) deferred financing expense of $4.7 million related to our new credit facility. The net cash flows used in financing activities for the year ended December 31, 2006 reflect: (i) the repurchase of $100.5 million of our Class A common stock; and (ii) the payment of $60.4 million in dividends to shareholders, offset by a net increase in outstanding indebtedness of $99.0 million.

 

NYSE — Continued Listing

 

Our common stock is currently listed on the New York Stock Exchange (“NYSE”).  The continued listing requirements of the NYSE include, among other things:

 

32



•             If the average closing price of an NYSE listed company’s common stock, over a 30 consecutive trading day period, is below $1.00, then the issuer will have a six month period to cure the deficiency.

 

•             If the average market capitalization of an NYSE listed company’s common stock, over a 30 consecutive trading day period, is below $25 million, then the issuer we will be subject to immediate NYSE delisting.  While the NYSE rules generally do not provide for a cure period with respect to this continued listing requirement, on January 22, 2009, the NYSE announced a temporary reduction of this threshold to $15 million through April 22, 2009.

 

•             If an NYSE listed company’s: (a) average market capitalization, over a 30 consecutive trading day period, is below $75 million, and (b) total stockholders’ equity is less than $75,000,000; then the issuer may be subject to NYSE delisting.  In such event, the listed company will have an opportunity to submit a plan to the NYSE to cure such deficiency.  If the NYSE accepts the plan, the issuer will have up to 18 months to cure the deficiency.

 

On December 1, 2008, we received notice from the NYSE that we were not in compliance with the $1.00 minimum closing price requirement.  Pursuant to NYSE rules, we have advised the NYSE that we intend to cure this deficiency.  In order to do so, on June 1, 2009: (i) the closing price of our common stock must be at least $1.00, and (ii) the average closing price of our common stock, over the preceding 30 consecutive trading day period, must be at least $1.00.  If we fail to meet these requirements, our common stock will be subject to delisting.

 

Accordingly, it is possible our common stock may be subject to suspension and delisting procedures. If our common stock is delisted from the NYSE, then our common stock may trade on the Over-the-Counter Bulletin Board.  Delisting from the NYSE also could make trading our common stock more difficult for our investors and negatively impact the price of our common stock.

 

Income Taxes

 

During the year ended December 31, 2008, we paid a nominal amount in income taxes and during the years ended December 31, 2007 and 2006, we paid income taxes of $0.5 million and $0.3 million, respectively. During these years, we have benefited from the tax deductions for depreciation and amortization on acquired assets. We anticipate that it will not be necessary to make any additional quarterly estimated federal, and most state, income tax payments for 2009, based upon projected quarterly taxable income and our ability to utilize federal net operating loss carryforwards from 2008 and certain state net operating loss carryforwards beginning with 2006.

 

Dividends

 

Our Board of Directors approved dividends on a quarterly basis effective with the first quarter of 2006 through the third quarter of 2008.  Our Board of Directors did not declare a dividend for the fourth Quarter of 2008.  Any future dividends will be at the discretion of the Board of Directors based upon the relevant factors at the time of such consideration.

 

We have used a portion of our capital resources to pay dividends in the aggregate amount of $140.0 million during the years ended December 31, 2008, 2007 and 2006.  Prior to the payment of our first quarterly dividend as a public company in March 2006, we had not declared any dividends on any class of our common stock.

 

Share Repurchase Programs

 

Over the past several years, our Board of Directors authorized several programs to repurchase our Class A common stock. Under these repurchase programs, we repurchased and immediately retired: (1) in 2008, 2.1 million shares for an aggregate of $13.9 million at an average price of $6.72 per share; (2) in 2007, 2.2 million shares for an aggregate of $55.0 million at an average price of $25.28 per share; and (3) in 2006, 3.5 million shares for an aggregate of $100.5 million at an average price of $28.98 per share. Depending on market conditions and other factors, these repurchases may be commenced or suspended at any time or from time to time without prior notice. As of February 15, 2009, $25.4 million shares remained authorized as available for repurchase under the current program that will expire on June 30, 2009. We expect to use cash available under our Bank Facility and internally generated cash flow as a source of funds to repurchase shares under the current program.

 

33



Senior Subordinated Note Repurchases

 

On March 5, 2002, we issued $150.0 million of 7.625% Senior Subordinated Notes due March 1, 2014. At December 31, 2008, we have $83.5 million outstanding as we repurchased and retired $66.5 million of the Notes during the year 2008.

 

We may from time to time seek to repurchase and retire our outstanding debt through cash purchases, open market purchases, privately negotiated transactions or otherwise. Such repurchases, if any, will depend on prevailing market conditions, our liquidity requirements, contractual restrictions and other factors. The amounts involved may be material.

 

Interest on the Notes, which are in denominations of $1,000 each, accrues at the rate of 7.625% per annum and is payable semi-annually in arrears on March 1 and September 1. We may redeem the Notes effective March 1, 2009 at a redemption price of 101.271% of their principal amount plus accrued interest. The Notes are unsecured and rank junior to our senior indebtedness. Our Senior Subordinated Notes also require us to comply with certain covenants that limit, among other things, our ability to incur indebtedness and to make certain payments. The maturity could be accelerated if we do not maintain certain covenants, which are, in general, less restrictive than the covenants under the Bank Facility.

 

Capital Expenditures

 

Capital expenditures for the year ended December 31, 2008 were $8.6 million as compared to $9.3 million in 2007 and $13.7 million in 2006. We anticipate that capital expenditures in 2009 will be between $3.0 million and $5.0 million.

 

Credit Rating Agencies

 

On a continuing basis, credit rating agencies such as Moody’s Investor Services and Standard and Poor’s evaluate our debt in order to assign a credit rating. Any future significant downgrade in our credit rating could adversely impact our future liquidity by limiting or eliminating our ability to obtain debt financing, or include, among other things, interest rate changes under any future credit agreements, debentures, notes or other types of debt.  Effective for 2009, we have elected to discontinue our subscription to such ratings services.

 

Contractual Obligations

 

The following table reflects a summary of our contractual obligations as of December 31, 2008:

 

 

 

Payments due by period

 

 

 

 

 

Less than

 

1 to 3

 

3 to 5

 

More Than

 

Contractual Obligations:

 

Total

 

1 year

 

years

 

years

 

5 years

 

 

 

(amounts in thousands)

 

 

 

 

 

 

 

 

 

 

 

 

 

Long-term debt obligations (1)

 

$

955,146

 

$

38,462

 

$

62,539

 

$

769,553

 

$

84,593

 

Operating lease obligations

 

72,034

 

11,936

 

21,020

 

15,104

 

23,974

 

Purchase obligations (2)

 

287,525

 

98,197

 

91,803

 

60,256

 

37,269

 

Other long-term liabilities (3)

 

30,489

 

1,320

 

12,724

 

5,615

 

10,830

 

Total

 

$

1,345,194

 

$

149,915

 

$

188,086

 

$

850,528

 

$

156,666

 


(1)          (a) The maturity of our Bank Facility, with outstanding debt in the amount of $750.0 million as of December 31, 2008, could be accelerated if we do not maintain certain covenants.
(b) Under our $83.5 million 7.625% Senior Subordinated Notes, the maturity could be accelerated if we do not maintain certain covenants or could be repaid in cash by us at our option prior to the due date of the notes.
(c) The above table includes projected interest expense under the remaining term of our Bank Facility and our 7.625% Senior Subordinated Notes.

 

(2)          (a) We have purchase obligations of $285.4 million that include contracts primarily for on-air personalities, sports programming rights, ratings services, music licensing fees, equipment maintenance and certain other operating contracts.
(b) In addition to the above, we have $2.1 million in liabilities related to our obligation to provide a letter of credit and for certain construction obligations.

 

34



(3)          Included within total other long-term liabilities of $30.5 million are FIN 48 liabilities of $4.3 million, which have been reflected in the above table in the column labeled as “More Than 5 Years” as it is impractical to determine whether there will be a cash impact to an individual year.  See Note 7, Income Taxes, in the accompanying notes to the consolidated financial statements for a discussion of the change to deferred tax liabilities.

 

Off-Balance Sheet Arrangements

 

We utilize letters of credit to back certain payment and performance obligations. Letters of credit are subject to limits based on amounts outstanding under our credit facility. We had an outstanding letter of credit of $1.5 million as of December 31, 2008.

 

We enter into interest rate contracts (collars and swaps) to hedge a portion of our variable rate debt. See Note 9 in the accompanying notes to the consolidated financial statements for a detailed discussion of our derivative instruments.

 

We do not have any relationships with unconsolidated entities or financial partnerships, such as entities often referred to as structured finance or special purpose entities, which would have been established for the purpose of facilitating off-balance sheet financial arrangements or other contractually narrow or limited purposes at December 31, 2008. Accordingly, we are not materially exposed to any financing, liquidity, market or credit risk that could arise if we had engaged in such relationships.

 

We do not have any other off-balance sheet arrangements as of December 31, 2008.

 

As Of December 31, 2007, A Third Party Had A Variable Interest In Several Of Our Entities Holding Assets To Be Disposed

 

On January 17, 2007, we entered into an agreement with a third party to exchange certain radio stations in Cincinnati, Ohio, and Seattle, Washington, for certain radio stations in San Francisco, California, and $1.0 million in cash. Concurrently with entering into this asset exchange agreement, we entered into a time brokerage agreement. The provisions of FIN 46R, “Consolidation of Variable Interest Entities, an Interpretation of ARB No. 51,” include any variable interest entities that are required to be consolidated by the primary beneficiary. In connection with this transaction, we determined that FIN 46R was applicable as the buyer had a variable interest in and was the primary beneficiary of our entity that contained the Cincinnati radio station assets. As the primary beneficiary, the purchaser could incur the expected losses that could arise from the variability of the fair value of the variable interest entity (“VIE”). As a result, as of December 31, 2007 we deconsolidated the assets and liabilities of those entities holding our Cincinnati assets into a balance sheet classification as an investment in deconsolidated subsidiaries in the amount of $119.3 million. The investment in deconsolidated subsidiaries reflects the fair value of all of the assets and liabilities of the variable interest entity that contain the Cincinnati assets that were disposed of in the first quarter of 2008 under the asset exchange agreement (see Note 4 in the accompanying consolidated financial statements for a further discussion of the Bonneville disposition).

 

Recently Issued Pronouncements Effective Subsequent To The Year Ended December 31, 2008

 

FAS No. 142-3

 

In April 2008, the FASB issued FAS No. 142-3, “Determination of the Useful Life of Intangible Assets,” which amends the factors that should be considered in developing the renewal or extension assumptions used to determine the useful life of recognized intangible assets under FAS No. 142, “Goodwill and Other Intangible Assets.”  FAS No. 142-3, which requires expanded disclosure regarding the determination of intangible asset useful lives, also improves the consistency between the useful life of a recognized intangible asset under FAS No. 142 and the period of expected cash flows used to measure the fair value of the asset under FAS No. 141R.  FAS No. 142-3 is effective for us on January 1, 2009. The impact to us would be limited to the application of this standard to future acquisitions.

 

FAS No. 161

 

In March 2008, the FASB issued FAS No. 161, “Disclosures about Derivative Instruments and Hedging Activities - an amendment of FASB Statement No. 133.” FAS No. 161 changes the disclosure requirements for derivative instruments and hedging activities. Entities are required to provide enhanced disclosures about: (1) how and why an entity uses derivative

 

35



instruments; (2) how derivative instruments and related hedged items are accounted for under SFAS No. 133 and its related interpretations; and (3) how derivative instruments and related hedged items affect an entity’s financial position, financial performance and cash flows. As a result of the guidance in FAS No. 161, which is effective for us on January 1, 2009, we will include the relevant disclosures in our financial statements beginning with the first quarter in 2009.

 

FAS No. 160

 

In December 2007, the FASB issued FAS No. 160, “Noncontrolling Interests in Consolidated Financial Statements - an Amendment of ARB No. 51.”  FAS No. 160 will change the accounting and reporting for minority interests, which will be recharacterized as noncontrolling interests and classified as a component of equity.  FAS No. 160 requires retroactive adoption of the presentation and disclosure requirements for existing minority interests, with all other requirements applied prospectively.  FAS No. 160 is effective for us as of January 1, 2009. The adoption of FAS No. 160 did not have an impact on our financial position, results of operations or cash flows.

 

FAS No. 141R

 

In December 2007, the FASB issued FAS No. 141R, “Business Combinations,” that will significantly change how business combinations are accounted for through the use of fair values in financial reporting and will impact financial statements both on the acquisition date and in subsequent periods. Some of the changes, such as the accounting for contingent consideration, will introduce more volatility into earnings. FAS No. 141R, which is effective for us as of January 1, 2009, will apply to all business combinations that will close on or after January 1, 2009.

 

Critical Accounting Policies

 

Our discussion and analysis of our financial condition and results of operations are based upon our consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States. The preparation of these financial statements requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities as of the date of the financial statements and the amount of reported revenues and expenses during the reporting period. We base our estimates on historical experience and various other assumptions that we believe to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily available from other sources. Actual results may differ from these estimates under different circumstances or by using different assumptions.

 

We consider the following policies to be important in understanding the judgments involved in preparing our financial statements and the uncertainties that could affect our financial position, results of operations or cash flows. For a summary of our significant accounting policies, including the critical accounting policies discussed below, see the accompanying notes to the consolidated financial statements.

 

Revenue Recognition

 

We recognize revenue from the sale of commercial broadcast time to advertisers when the commercials are broadcast, subject to meeting certain conditions such as persuasive evidence that an arrangement exists, the price is fixed and determinable and collection is reasonably assured. These criteria are generally met at the time an advertisement is broadcast, and the revenue is recorded net of advertising agency commission. Based upon past experience, the use of these criteria has been a reliable method to recognize revenues.

 

Allowance For Doubtful Accounts

 

We must make an allowance for doubtful accounts for estimated losses resulting from our customers’ failure to make payments to us. We specifically review historical write-off activity by market, large customer concentrations, customer creditworthiness, the economic conditions of the customer’s industry, and changes in our customer payment practices when evaluating the adequacy of the allowance for doubtful accounts. Our historical estimates have been a reliable method to estimate future allowances. Our historical reserves have averaged less than 4.0% of our outstanding receivables. Due to the recent economic downturn and its effect on our business and our customer base, we increased our accounts receivable reserve to 5.6% as of December 31, 2008. If the financial condition of our customers or markets were to deteriorate, resulting in an impairment of their ability to make payments, then additional allowances could be required. Our basic and diluted net loss per share would be negatively impacted by $0.02, assuming a 1% increase in our outstanding accounts receivable allowance of $0.8 million as of December 31, 2008 (net of a full valuation allowance against any tax benefit).

 

36



Table of Contents

 

Radio Broadcasting Licenses And Goodwill

 

We have made acquisitions in the past for which a significant amount of the purchase price was allocated to broadcasting licenses and goodwill assets.  As of December 31, 2008, we have recorded approximately $813.7 million in radio broadcasting licenses and goodwill, which represents 81.6% of our total assets at that date. In assessing the recoverability of these assets, we must conduct impairment testing required by SFAS No. 142 and charge to operations an impairment expense only in the periods in which the recorded value of these assets is more than their fair value.  In 2008, we recorded an impairment loss of $835.7 million for radio broadcasting licenses and goodwill. We believe our estimate of the value of our radio broadcasting licenses and goodwill assets is a critical accounting estimate as the value is significant in relation to our total assets, and our estimate of the value uses assumptions that incorporate variables based on past experiences and judgments about future performance of our stations. These variables include but are not limited to: (1) the forecast growth rate of each radio market, including population, household income, retail sales and other expenditures that would influence advertising expenditures; (2) market share and profit margin of an average station within a market; (3) estimated capital start-up costs and losses incurred during the early years; (4) risk-adjusted discount rate; (5) the likely media competition within the market area; and (6) terminal values. Changes in our estimates of the fair value of these assets could result in material future period write-downs in the carrying value of our broadcasting licenses and goodwill assets.  Please refer to Note 3, Intangible Assets And Goodwill, in the accompanying notes to the consolidated financial statements for a discussion of several key assumptions used in the fair value estimate of our broadcasting licenses and goodwill during our fourth quarter 2008 interim impairment test.

 

Market Capitalization

 

As of December 31, 2008, our total market capitalization was $54.6 million less than our equity book value.  We believe this difference can be attributed to the recent volatility of our stock price in the current economic environment and to the control premium that a market participant may pay in the event we were acquired.  In the accompanying notes to the financial statements, please refer to Note 3, Intangible Assets And Goodwill, for a discussion of the impact to our equity book value as a result of the fourth quarter 2008 impairment loss.

 

Contingencies And Litigation

 

On an ongoing basis, we evaluate our exposure related to contingencies and litigation and record a liability when available information indicates that a liability is probable and estimable. We also disclose significant matters that are reasonably possible to result in a loss or are probable but not estimable.

 

Estimation Of Our Tax Rates

 

We must make certain estimates and judgments in determining income tax expense for financial statement purposes. These estimates and judgments must be used in the calculation of certain tax assets and liabilities because of differences in the timing of recognition of revenue and expense for tax and financial statement purposes.

 

We must assess the likelihood that we will be able to recover our deferred tax assets. In 2008, we recorded a full valuation allowance for our net deferred tax assets primarily due to our cumulative losses over the past three years.  As changes occur in our assessments regarding our ability to recover our deferred tax assets, our tax provision is decreased in any period in which we determine that the recovery is probable.

 

In addition, the calculation of our tax liabilities requires us to account for uncertainties in the application of complex tax regulations. We recognize liabilities for uncertain tax positions based on the two-step process prescribed within the interpretation of FIN 48. The first step is to evaluate the tax position for recognition by determining if the weight of available evidence indicates that it is more likely than not that the position will be sustained on audit based upon its technical merits, including resolution of related appeals or litigation processes, if any. The second step requires us to estimate and measure the tax benefit as the largest amount that has greater than a 50% likelihood of being realized upon ultimate settlement. It is inherently difficult and subjective to estimate such amounts, as this requires us to determine the probability of various possible outcomes. We reevaluate these uncertain tax positions, and review whether any new uncertain tax positions have arisen, on a quarterly basis. This evaluation is based on factors including, but not limited to, changes in facts or circumstances, changes in tax law, effectively settled issues under audit, historical experience with similar tax matters, guidance from our tax advisors, and new audit activity. A change in recognition or measurement would result in the recognition of a tax benefit or an additional charge to the tax provision in the period in which the change occurs.

 

37



Table of Contents

 

We believe our estimates of the value of our tax contingencies and valuation allowances are critical accounting estimates, as they contain assumptions based on past experiences and judgments about potential actions by taxing jurisdictions. It is reasonably likely that the ultimate resolution of these matters may be greater or less than the amount that we have currently accrued.  In past years, our estimate of our tax rate has varied from 37.5% to 42.7%. For 2008, if we excluded the discrete items of tax (including the increase in our valuation allowance) and the impairment loss, then our tax rate would have been in the low 40 percent range. The effect of a 1% increase in our estimated tax rate as of December 31, 2008, would be a decrease in the income tax benefit of $7.5 million (before the impact of a change in the valuation allowance) and an increase in net loss of $7.5 million (net loss per basic and diluted common share of $(0.20) for the year ended December 31, 2008).

 

Valuation Of Share-Based Compensation

 

We determine the fair value of restricted stock units with service and market conditions using a Monte Carlo simulation model. The fair value is based on the use of certain assumptions regarding a number of highly complex and subjective variables.  If other reasonable assumptions were used, the results could differ.

 

We determine the fair value of our employee stock options at the date of grant using a Black-Scholes option-pricing model. The Black-Scholes option-pricing model was developed for use in estimating the value of exchange-traded options that have no vesting restrictions and are fully transferable. Our employee stock options have characteristics significantly different from these traded options. In addition, option-pricing models require the input of highly subjective assumptions, including the expected stock price volatility and expected term of the options granted.

 

Intangibles

 

As of December 31, 2008, approximately 81.6% of our total assets consisted of radio broadcast licenses and goodwill, the value of which depends significantly upon the operational results of our business. We could not operate our radio stations without the related FCC license for each station.  FCC licenses are subject to renewal every eight years; consequently, we continually monitor the activities of our stations to ensure they comply with all regulatory requirements. Subject to delays in processing by the FCC, historically, all of our licenses have been renewed at the end of their respective eight-year periods, and we expect that all licenses will continue to be renewed in the future. (See Part I, Item 1A, “Risk Factors,” for a discussion of the risks associated with the renewal of licenses.)

 

Inflation

 

Inflation has affected our performance in terms of higher costs for radio station operating expenses, including wages and equipment.  The exact impact cannot be reasonably determined.

 

ITEM 7A.                    QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

 

We are exposed to market risk from changes in interest rates on our variable rate Bank Facility. From time to time, we may seek to limit our exposure to interest rate volatility through the use of derivative rate hedging instruments. If the borrowing rates under our LIBOR loans were to increase 1% above the rates as of December 31, 2008, our interest expense under our Bank Facility would increase by approximately $2.0 million on an annual basis, including any interest benefit or interest expense associated with the use of outstanding derivative rate hedging instruments. We do not have interest rate risk related to our Senior Subordinated Notes, which have a fixed interest rate of 7.625%.

 

During the year ended December 31, 2008, we entered into the following derivative rate hedging transactions in the aggregate notional amount of $550.0 million to fix interest on our variable rate debt. These rate hedging transactions are tied to the one-month LIBOR interest rate.

 

38



Table of Contents

 

 

 

 

 

 

 

 

 

 

 

 

 

Effective

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Date That

 

Notional

 

 

 

 

 

 

 

 

 

Fixed

 

 

 

Notional

 

Amount

 

Type of

 

Notional

 

Effective

 

 

 

LIBOR

 

Expiration

 

Amount

 

After

 

Hedge

 

Amount

 

Date

 

Collar

 

Rate

 

Date

 

Decreases

 

Decrease

 

 

 

(in millions)

 

 

 

 

 

 

 

 

 

 

 

(in millions)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Swap

 

$

225.0

 

Jan. 28, 2008

 

n/a

 

3.03%

 

Jan. 28, 2011

 

Jan. 28, 2010

 

$

150.0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Collar

 

$

100.0

 

Feb. 28, 2008

{

Cap
Floor

 

4.00%
2.14%

}

Feb. 28, 2011

 

n/a

 

n/a

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Swap

 

$

125.0

 

March 28, 2008

 

n/a

 

2.91%

 

Sept. 28, 2011

 

n/a

 

n/a

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Swap

 

$

100.0

 

May 28, 2008

 

n/a

 

3.62%

 

May 28, 2012

 

n/a

 

n/a

 

 

On February 28, 2008, our derivative rate hedging transaction, that effectively fixed LIBOR at 5.8% for a notional amount of $30.0 million, matured.

 

The fair value (based upon current market rates) of the rate hedging transactions is included as derivative instruments  in long-term assets and/or liabilities as the maturity dates are greater than one year.  Our rate hedging transactions are tied to the one-month LIBOR interest rate, which may fluctuate significantly on a daily basis. The fair value of the hedging transaction is affected by a combination of several factors, including the change in the one-month LIBOR rate and the forward interest rate to maturity. Any increase in the one-month LIBOR rate and/or the forward interest rate to maturity results in a more favorable valuation, while any decrease in the one-month LIBOR rate and/or forward interest rate to maturity results in a less favorable valuation. The fair value of our derivative instruments outstanding as of December 31, 2008 was a liability of $15.2 million, which was a $15.2 million change from the fair value of the derivative instruments at their inception in 2008. This negative change was primarily due to the effect of a decrease in the forward interest rate to maturity.

 

Our credit exposure under our hedging agreements, or similar agreements we may enter into in the future, is the cost of replacing such agreements in the event of non-performance by our counter-party. To minimize this risk, we select high credit quality counter-parties.  We do not anticipate nonperformance by such counter-parties, and no material loss would be expected in the event of the counter-parties’ nonperformance.

 

Our cash equivalents are money market instruments consisting of short-term government securities and repurchase agreements that are fully collateralized by government securities.  We do not believe that we have any material credit exposure with respect to these assets.

 

Our credit exposure related to our accounts receivable does not represent a significant concentration of credit risk due to the quantity of advertisers, the minimal reliance on any one advertiser, the multiple markets in which we operate and the wide variety of advertising business sectors.

 

See also additional disclosures regarding liquidity and capital resources made under Part II, Item 7 above.

 

ITEM 8.                       FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

 

Our consolidated financial statements, together with related notes and the report of PricewaterhouseCoopers LLP, our independent registered public accounting firm, are set forth on the pages indicated in Part IV, Item 15.

 

ITEM 9.                       CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

 

None.

 

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ITEM 9A.                    CONTROLS AND PROCEDURES

 

Evaluation Of Controls And Procedures

 

We maintain “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) that are designed to ensure that: (1) information required to be disclosed in our Exchange Act reports is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission’s rules and forms; and (2) such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow for timely decisions regarding required disclosure.  In designing and evaluating our disclosure controls and procedures, our management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and our management is required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures.

 

We carried out an evaluation, under the supervision of and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of our disclosure controls and procedures as of December 31, 2008.  Based on the foregoing, our President/Chief Executive Officer and Executive Vice President - Operations/Chief Financial Officer concluded that, as of December 31, 2008, our disclosure controls and procedures were effective at the reasonable assurance level.

 

Changes In Internal Controls

 

There has been no change in the Company’s internal controls over financial reporting during the Company’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Company’s internal controls over financial reporting.

 

Management’s Report On Internal Control Over Financial Reporting

 

Internal control over financial reporting refers to the process designed by, or under the supervision of, our Chief Executive Officer and Chief Financial Officer, and effected by our board of directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles, and includes those policies and procedures that:

 

·                  pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company;

 

·                  provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company; and

 

·                  provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on the financial statements.

 

Internal control over financial reporting cannot provide absolute assurance of achieving financial reporting objectives because of its inherent limitations. Internal control over financial reporting is a process that involves human diligence and compliance and is subject to lapses in judgment and breakdowns resulting from human failures. Internal control over financial reporting also can be circumvented by collusion or improper management override. Because of such limitations, there is a risk that material misstatements may not be prevented or detected on a timely basis by internal control over financial reporting. However, these inherent limitations are known features of the financial reporting process. Therefore, it is possible to design into the process safeguards to reduce, though not eliminate, this risk. Management is responsible for establishing and maintaining adequate internal control over financial reporting for the Company.

 

Management has used the framework set forth in the report entitled “Internal Control - Integrated Framework” published by the Committee of Sponsoring Organizations (“COSO”) of the Treadway Commission to evaluate the effectiveness of the Company’s internal control over financial reporting.  Based on this evaluation, management has concluded that the

 

40



Table of Contents

 

Company’s internal control over financial reporting was effective as of December 31, 2008. The effectiveness of the Company’s internal control over financial reporting as of December 31, 2008 has been audited by PricewaterhouseCoopers LLP, an independent registered public accounting firm, as stated in their report which appears herein.

 

David J. Field, President and Chief Executive Officer

Stephen F. Fisher, Executive Vice President - Operations and Chief Financial Officer

 

ITEM 9B.                    OTHER INFORMATION

 

None.

 

PART III

 

ITEM 10.                      DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

 

The information required by this Item 10 is incorporated in this report by reference to the applicable information set forth in our proxy statement for the 2009 Annual Meeting of Shareholders, which we expect to file with the Securities Exchange Commission prior to April 30, 2009.

 

ITEM 11.                      EXECUTIVE COMPENSATION

 

The information required by this Item 11 is incorporated in this report by reference to the applicable information set forth in our proxy statement for the 2009 Annual Meeting of Shareholders, which we expect to file with the Securities Exchange Commission prior to April 30, 2009.

 

ITEM 12.                      SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED SHAREHOLDER MATTERS

 

The information required by this Item 12 is incorporated in this report by reference to the applicable information set forth in our proxy statement for the 2009 Annual Meeting of Shareholders, which we expect to file with the Securities Exchange Commission prior to April 30, 2009.

 

ITEM 13.                      CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS AND DIRECTOR INDEPENDENCE

 

The information required by this Item 13 is incorporated in this report by reference to the applicable information set forth in our proxy statement for the 2009 Annual Meeting of Shareholders, which we expect to file with the Securities Exchange Commission prior to April 30, 2009.

 

ITEM 14.                      PRINCIPAL ACCOUNTING FEES AND SERVICES

 

The information required by this Item 14 is incorporated in this report by reference to the applicable information set forth in our proxy statement for the 2009 Annual Meeting of Shareholders, which we expect to file with the Securities Exchange Commission prior to April 30, 2009.

 

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Table of Contents

 

PART IV

 

ITEM 15.                      EXHIBITS, FINANCIAL STATEMENT SCHEDULES

 

(a)           The following documents are filed as part of this Report:

 

Document

 

Page

 

 

 

Consolidated Financial Statements

 

 

Report of Independent Registered Public Accounting Firm

 

45

 

 

 

Consolidated Financial Statements

 

 

Balance Sheets as of December 31, 2008 and December 31, 2007

 

46

Statements of Operations for the Years Ended December 31, 2008, 2007 and 2006

 

48

Statements of Comprehensive Income (Loss) for the Years Ended December 31, 2008, 2007 and 2006

 

49

Statements of Shareholders’ Equity for the Years Ended December 31, 2008, 2007 and 2006

 

50

Statements of Cash Flows for the Years Ended December 31, 2008, 2007 and 2006

 

51

Notes to Consolidated Financial Statements

 

53

 

 

 

Index to Exhibits

 

104

 

42



(b)           Exhibits

 

Exhibit
Number

 

Description

3.01

 

Amended and Restated Articles of Incorporation of the Entercom Communications Corp, as amended on December 19, 2007. (1)

3.02

 

Amended and Restated Bylaws of the Entercom Communications Corp. (2)

4.01

 

Indenture dated as of March 5, 2002 by and among Entercom Radio, LLC and Entercom Capital, Inc., as co-issuers, the Guarantors named therein and HSBC Bank USA, as trustee. (3)  (Originally filed as Exhibit 4.02)

4.02

 

First Supplemental Indenture dated as of March 5, 2002 by and among Entercom Radio, LLC and Entercom Capital, Inc., as co-issuers, the Guarantors named therein and HSBC Bank USA, as trustee. (3)  (Originally filed as Exhibit 4.03)

10.01

 

Employment Agreement, dated July 1, 2007, between Entercom Communications Corp. and David J. Field. (4)

10.02

 

First Amendment To Employment Agreement, dated December 15, 2008, between Entercom Communications Corp. and David J. Field. (5)

10.03

 

Employment Agreement, dated July 1, 2007, between Entercom Communications Corp. and Joseph M. Field. (6)

10.04

 

First Amendment To Employment Agreement, dated December 15, 2008, between Entercom Communications Corp. and Joseph M. Field. (5)

10.05

 

Employment Agreement, dated December 19, 2007, between Entercom Communications Corp. and Stephen F. Fisher. (7)

10.06

 

First Amendment To Employment Agreement, dated December 15, 2008, between Entercom Communications Corp. and Stephen F. Fisher. (5)

10.07

 

Employment Agreement, dated December 17, 1998, between Entercom Communications Corp. and John C. Donlevie. (8)

10.08

 

Entercom Non-employee Director Compensation Policy. (9)

10.09

 

Amended and Restated Entercom Equity Compensation Plan. (10)

10.10

 

Entercom Annual Incentive Plan. (11)

10.11

 

Credit Agreement dated as of June 18, 2007 among Entercom Radio, LLC, as the Borrower, Entercom Communications Corp., as the Parent, Bank of America, N.A. as Administrative Agent and L/C Issuer, JP Morgan Chase Bank, N.A. as Syndication Agent, BMO Capital Markets, Corp., BNP Paribas, Mizuho Corporate Bank, LTD., Suntrust Bank as Co-Documentation Agents and The Other Lenders Party Hereto. (12)

21.01

 

Information Regarding Subsidiaries of Entercom Communications Corp. (6)

23.01

 

Consent of PricewaterhouseCoopers LLP. (6)

31.01

 

Certification of President and Chief Executive Officer required by Rule 13a-14(a) or Rule 15d-14(a), as created by Section 302 of the Sarbanes-Oxley Act of 2002. (6)

31.02

 

Certification of Executive Vice President and Chief Financial Officer required by Rule 13a-14(a) or Rule 15d-14(a), as created by Section 302 of the Sarbanes-Oxley Act of 2002. (6)

32.01

 

Certification of President and Chief Executive Officer pursuant to 18 U.S.C. § 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002. (13)

32.02

 

Certification of Executive Vice President and Chief Financial Officer pursuant to 18 U.S.C. § 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002. (13)


(1)      &#