FCC Proposes Changes In Foreign Sponsorship Requirements

The Federal Communications Commission Thursday released a Second Notice of Proposed Rulemaking (Second Notice) to strengthen the process for identifying foreign governmental entities in the wake of the D.C. Circuit’s ruling in National Association of Broadcasters (NAB) v. FCC. Thursday’s Second Notice proposes, among other things, a certification process with standardized language for broadcasters and lessees to use in order to demonstrate that the appropriate inquiries have been made in determining whether a foreign governmental entity has sponsored the programming.

On April 22, 2021, the Commission released a Report and Order requiring broadcasters to transmit clear disclosures with programming provided by a foreign governmental entity and establishing a definition of a foreign governmental entity. Subsequently, the NAB and others filed a Petition for Review of the action with the U.S. Court of Appeals for the District of Columbia Circuit. In its July 12, 2022 ruling, the D.C. Circuit determined that the Commission lacked the statutory authority under sections 317(c) and (e) of the Act to require licensees to independently check two federal databases to verify whether a lessee is a “foreign governmental entity” and vacated this requirement of the Commission’s rules.

 

“The principle that the public has a right to know the identity of those who use our airwaves to solicit our support is a long-standing tenet of broadcasting and I continue to stand by that,” said Chairwoman Jessica Rosenworcel. “This proposal will help strengthen the process for identifying foreign governments broadcasting in the United States and fill in the gaps left in the wake of the D.C. Circuit’s recent ruling. The bottom line is that this is about supporting transparency and democratic values—full stop.”

The proposal considers the following:

• Proposes that a broadcaster must certify that it has informed its lessee of the foreign sponsorship identification rules and obtained, or sought to obtain, a certification from its lessee stating whether the lessee is or is not a “foreign governmental entity;”
• Proposes that a lessee must submit a certification in response to a broadcaster’s request;
• Proposes to incorporate into the FCC’s rules standardized certification language for broadcasters and lessees to use in their certifications;
• Contains an alternative proposal to the certification requirement. Under this approach, in the event that a lessee states it is not a foreign governmental entity, a broadcaster must obtain from the lessee appropriate documentation showing that the lessee’s name does not appear on either of the two federal government websites referenced in the Commission’s April 2021 Order.

In addition, this Second Notice provides stakeholders an additional opportunity to comment on a pending petition regarding how to distinguish between advertising and programming arrangements for the lease of airtime. The item also asks whether the Commission should establish a presumption that any broadcast matter that is two minutes or less in length, absent any other indicia, should be considered “advertising” that is exempt from the application of the foreign sponsorship identification rules.

Comments will be due 30 days following publication in the Federal Register, with reply comments due 45 days after publication.