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11. What are the statutory requirements for newspaper publication of legal notices?

Before accepting and publishing legal notices that are required or permitted under state law in North Carolina, a newspaper must have filed a sworn affidavit with the clerk of the superior court in the county where the newspaper is published listing and verifying the actual rates across various classes of advertising that the newspaper typically offers to commercial advertisers.^[192]  The owner or manager of a newspaper that fails to comply with this requirement can be charged with a Class 1 misdemeanor.^[193]  In addition, state and municipal officers and boards may not contract with a newspaper to pay more than the local commercial rates offered by the newspaper when they are required or permitted by law to provide legal notice by newspaper publication.^[194] 

Not every newspaper is qualified under the statutes to publish legal advertisements that are effective under the law.  A newspaper must meet three criteria under the statutes to be legally qualified to publish effective legal advertisements:  First, the newspaper must have a “general circulation to actual paid subscribers” when the legal notice is published; second, the newspaper must “have been admitted to the United States mails in the Periodicals class in the county or political subdivision where [the] publication, advertisement or notice is required to be published;” and, third, the newspaper must “have been regularly and continuously issued in the county in which the publication, advertisement or notice is authorized or required to be published, at least one day in each calendar week for at least 25 of the 26 consecutive weeks immediately preceding the date of the first publication of [the] advertisement, publication or notice.”^[195]  However, a newspaper that meets these qualifications, but for some reason has “fail[ed] for a period not exceeding four weeks in any calendar year to publish one or more of its issues,” remains qualified under the statutes to publish legal notices.^[196]     

The “general circulation” requirement is not defined in the statutes but includes both qualitative and quantitative aspects.  Most importantly, according to the N.C. Supreme Court, the term implicitly means that a newspaper must have content that appeals to the general public and that includes general interest items such as “national, state or county news; editorials; human interest stories; and advice columns, among others.”^[197]  In addition, the court has said that the term “general circulation” also inherently requires more than a de minimis number of readers in the area targeted for legal notice, which is measured under the statutes by the number of “actual paid subscribers” and not copies sold in newsstands or distributed for free.^[198]  Although there is no minimum number that automatically meets this standard, the number of subscribers must be high enough for the newspaper to reach a “diverse group of people” in the area targeted for legal notice.^[199]       

When a city or town spans two or more adjoining counties, a newspaper published in that city or town is qualified to publish legal notices in that city or town, and in each of the counties in which the city or town is located, if the newspaper is admitted to the mails in one of the counties the city or town spans and the newspaper otherwise meets the statutory qualifications for publishing effective legal notice in the other county or counties in which the city or town is located.^[200]  Under these circumstances, the newspaper does not need to have facilities or be admitted to the mails in each of the counties in which the city or town is located.^[201]  For example, assume that a newspaper is published in City A, and that City A lies in both County 1 and County 2.  Assume also that the newspaper is admitted to the mails in County 1 and has its facilities in a portion of City A that also is located in County 1.  Under these circumstances, the newspaper would be qualified to accept legal notices required to be published in County 2 so long as the newspaper meets all of the other statutory requirements to publish effective legal notices in County 2.  

According to a separate section of the statutes, county and municipal tax liens must be published “at least one time in one or more newspapers having general circulation in the taxing unit.”^[202]  Tax liens must be advertised between March 1 and June 30 each year.  According to the N.C. Supreme Court, to qualify to publish tax liens under the statutes, a newspaper must have a “general circulation to actual paid subscribers in the taxing unit,” a standard that has four criteria:  (1) The newspaper “must have a content that appeals to the public generally;” (2) the newspaper “must have more than a de minimis number of actual paid subscribers in the taxing unit;” (3) the newspaper’s “paid subscriber distribution must not be entirely limited geographically to one community, or section, of the taxing unit;” and (4) the newspaper “must be available to anyone in the taxing unit who wishes to subscribe to it.”^[203]

Proof that a newspaper is qualified to publish legal notices may be secured by sworn affidavit on behalf of the newspaper.  Under the statutes, when the “owner, partner, publisher, or other authorized officer or employee” of a newspaper swears in a written statement before a notary public that the newspaper satisfies the statutory criteria on a particular date, then all state courts must accept that statement in legal proceedings as sufficient proof that the newspaper indeed met the statutory requirements on that date.^[204]  The same holds true if such a sworn statement is filed with the clerk of the superior court in which the publication of a legal advertisement was required.  These provisions do not preclude the use of “any other competent evidence” aside from an affidavit to prove that a newspaper was qualified by statute to publish legal advertisements as of a certain date.^[205]         

The statutory qualifications for newspapers to accept legal advertisements as well as the affidavit requirements mentioned above do not apply in counties where there are no newspapers that meet the statutory qualifications to accept legal notices for publication.^[206]  However, the commercial rate requirements discussed above still apply in such a situation.  When legal notice by newspaper publication is required in a county where there is no qualified newspaper, a qualified newspaper in an adjoining county or in a county within the same district court district may be used so long as the qualified newspaper has a general circulation in the county where the legal notice is required to be published.^[207]

Proof of publication and the date of publication of a legal notice in a newspaper can be made by affidavit sworn under oath by the “publisher, proprietor, editor, managing editor, business or circulation manager, advertising, classified advertising or any other advertising manager or foreman of the newspaper.”^[208]  For a newspaper published by a corporation, the “president, vice president, secretary, assistant secretary, treasurer, or assistant treasurer of the corporation” may make the affidavit.^[209]  The statutes allow proof of publication or date of publication by other “competent evidence” although a qualifying affidavit is considered prima facie evidence of these elements.^[210] 

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