In the latest salvo of the back and forth fight over requiring broadcasters to verify foreign governmental sponsorship of programming, on October 6, 2022, the Federal Communications Commission (“FCC” or “Commission”) released a Second Notice of Proposed Rulemaking (“Second NPRM”). The Second NPRM comes as a response to this summer’s unanimous D.C. Circuit opinion vacating the requirement that broadcasters independently verify whether parties leasing time on their stations are “foreign governmental entities,” or agents thereof, by searching two federal databases. The National Association of Broadcasters had challenged the rule as beyond the statutory authority of the FCC, and the Court heartily agreed.
Down but not out, the FCC now proposes a new certification process with standardized language for broadcasters and programmers subject to its foreign sponsorship disclosure requirements. The new FCC proposal seeks to, in its own words, “fill in the gaps” left by the D.C. Circuit’s vacatur of the independent investigation requirement. If adopted, the new rules would require broadcasters to certify that they have (1) informed their programmers of the FCC’s foreign sponsorship identification rules and (2) sought certification from each programmer regarding its status as a foreign governmental entity or agent. Additionally, programmers would be required to certify that (1) they are or are not a foreign governmental entity and (2) whether they know of any entity or individual further back in the programming production/distribution chain that qualifies as a foreign governmental entity and has provided some form of compensation, or the programming itself, in exchange for the broadcast of that programming.
The Second NPRM also proposes standardized certification language be used in order to “minimize the compliance burden on [broadcasters] and programmers and bring greater uniformity to the certification process.” Both certifications must also be uploaded by broadcasters to the relevant station’s online public inspection file (“OPIF”) within 30 days of entering into or renewing a programming agreement. The newly proposed certification requirement would replace broadcasters’ existing requirement of memorializing their inquiries regarding the foreign sponsorship identification status of their programmers. Similar to when the FCC adopted the original foreign sponsorship identification rules, broadcasters would enjoy a six-month grace period to come into compliance with the proposed certification requirement and other provisions of the Second NPRM, if enacted.
As an alternative, the FCC proposes a process akin the independent investigation requirement vacated by the D.C. Circuit as unlawful. This alternative approach would require broadcasters to request that its programmers provide documentation of the programmers’ foreign status in the Foreign Agent Registration Act (“FARA”) database or in the FCC’s U.S.-based foreign media outlet report, partially shifting investigative and disclosure responsibilities from broadcasters to programmers. For example, programmers could provide broadcasters with screenshots showing that the programmer’s name does not appear on either of the two databases. The Second NPRM also provides interested parties an additional opportunity to comment on a pending Petition for Clarification “regarding the applicability of the foreign sponsorship identification rules to advertisements sold by local broadcast stations.”
The FCC is seeking comment on the feasibility and legality of both the standardized language certification requirement and the alternative approach. Once the Second NPRM is published in the Federal Register, the public will have 30 days and 60 days, respectively, to file comments and reply comments with the Commission. If you have any questions or are interested in bringing any concerns you may have before the FCC by filing a comment, please contact a Fletcher, Heald and Hildreth attorney and we would be glad to help.