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Broadcasters Question Hill Appetite

Eshoo Eyes Bill to Restore Vacated Part of FCC Foreign-Sponsored Content ID Rules

Rep. Anna Eshoo, D-Calif., is eyeing potential legislation to reverse the U.S. Court of Appeals for the D.C. Circuit’s July ruling that vacated the FCC’s requirement that broadcasters check federal databases to determine if entities leasing time on their stations are agents of foreign governments (see 2207120069). Broadcast industry officials told us they don’t believe a bid to resurrect the vacated requirement -- that broadcasters check programming lessors against Foreign Agents Registration Act and FCC databases -- would get much traction in Congress.

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We have to draw the line and address what” the D.C. Circuit “brought about,” Eshoo told us in late July, just before the House left for the six-week August recess. The House is to return Sept. 13. The FCC “can do some things” on its own despite the court’s ruling, but “legislation is required” to fully restore the foreign-sponsored content order the FCC unanimously adopted in 2021 (see 2104220074), Eshoo said: “Obviously I’m disappointed” that the court overruled parts of the order because “this is something that I have been on for years. I have written to many” FCC chairs “on this very issue” before Chairwoman Jessica Rosenworcel moved forward on bipartisan rules.

I think it’s important to take care of this, obviously,” but “we’ll see” if the bill is something that can even move through the House Commerce Committee before this Congress ends at the beginning of January, Eshoo said: “We have a limited amount of time” left on the legislative calendar, with the House set to be in session for only another 28 days in 2022.

Broadcasters doubt Congress will have sufficient appetite to move legislation to fully restore the FCC’s rules. Rob Folliard, Gray Television senior vice president-government relations and distribution, believes it’s unlikely such legislation would pass both chambers. Lawmakers may not consider legislation necessary due to the limited scope of the D.C. Circuit's ruling, one broadcaster said. Congress also has many bigger, more attractive issues on its plate, the broadcaster said.

What would you gain from this other than making more stations bankrupt?” asked Multicultural Media, Telecom and Internet Council Senior Adviser David Honig. MMTC, NAB and the National Association of Black Owned Broadcasters jointly challenged the order’s database requirements. NAB and NABOB didn’t comment.

The rules were a burden on smaller broadcasters and several safeguards already exist against foreign bad actors making use of broadcasters, Honig said. He noted the Committee for the Assessment of Foreign Participation in the U.S. Telecommunications Services Sector reviews station deals involving substantial foreign ownership. Broadcasters are also bound by FCC’s existing sponsorship ID rules, attorneys said.

Most of the order’s filing requirements remain in place, including a Sept. 15 deadline for stations to show that foreign agents lease none of their programming blocks. “Broadcasters should get declarations from each program supplier confirming that the supplier is not a foreign government or its representative, and has not been paid by a foreign government to produce the program that will be airing on the station,” Wilkinson Barker broadcast attorney David Oxenford said last week in a blog post.

Eshoo “feels very strongly about this issue” and if the desire is to ensure the FCC can implement all the rules as written, the commission does “not have the authority” to do that without action from Congress, said University of Minnesota media law professor Christopher Terry. Since the Supreme Court’s June ruling in West Virginia v. EPA (see 2206300066), which further clamped down on the ability of agencies like the FCC to regulate without clear direction from Congress, “you’re going to see a lot more instances” where lawmakers will have to make “more specific delegations” of authority via legislation “if they want the commission to do something specific.”

It's “debatable” whether specific legislation is needed to undo the D.C. Circuit’s ruling due to its limited scope, Terry said. The court’s decision “really doesn’t fundamentally alter the sponsorship ID rules. You’re talking about one part of a larger regulatory scheme that’s been in place for a long time.” Do “I like that Russian propaganda plays on our airwaves?” he said: “Of course not. You don’t see me stand with NAB very often, but they’ve got a point” that “it’s a burden on the stations to do” the kind of additional verification the vacated part of the rules required.