Foreign Sponsored Content Item Circulated at FCC
An item circulated to FCC commissioner offices last week involves possible updates to the foreign-sponsored content rules, according to broadcast industry officials. The item is expected to be an NPRM seeking comment on updates to the rules, following the July U.S. Court of Appeals for the D.C. Circuit decision striking down some of the requirements in July, officials said.
The FCC declined to comment on the details of the item. “We can confirm that an item was shared with the offices, but we don’t have anything to share about the specifics of the item, which is under review, other than to note that foreign sponsorship identification is an issue of transparency,” said an FCC spokesperson. “It is essential that audiences know when a broadcast station has been compensated to air content coming from a foreign government.” The item doesn’t appear to be listed on the agency’s online circulation list.
The D.C. Circuit decision struck down provisions of the FCC’s rules requiring broadcasters to check FCC and Foreign Agents Registration Act databases to see if entities leasing time on their stations are agents of foreign governments. Filing requirements and disclosure obligations from the rules remain in place, and broadcasters had a Sept. 15 deadline to show that they haven’t leased programming blocks to foreign agents.
Broadcast industry officials told us the draft item on circulation is expected to seek comment on requiring broadcasters to inform the Media Bureau when an entity has informed them that it's a foreign agent, and it also asks about a suggestion made by one of the D.C. Circuit judges during oral argument in the case. During that proceeding in April, Judge Cornelia Pillard raised the idea of requiring entities to submit screenshots documenting their absence from the FARA database (see 2204120059). Paul Hastings attorney Stephen Kinnaird, who represented petitioners NAB, the Multicultural Media, Technology and Internet Council, and the National Association of Black Owned Broadcasters, responded then that the screenshot requirement "would have been perfectly reasonable" and preferable to the agency's database requirement. Kinnaird also said then that requiring the entities leasing broadcast time to submit such screenshots would be within the FCC's authority.
After the D.C. Circuit ruling, FCC Chairwoman Jessica Rosenworcel indicated the agency might respond. “Transparency in broadcasting matters. That's why the FCC unanimously determined licensees must disclose when foreign governments or their representatives lease time on public airwaves. But a court halted this effort today so we'll look for new ways to address this going forward," she tweeted then.
Federal court rulings against agency policies can often provide guidance or a roadmap to how the agency could make regulations that pass the court’s muster, said Fletcher Heald broadcast attorney Frank Montero in an interview. “This is what agencies do,” he said. Rep. Anna Eshoo, D-Calif., also said she might seek to respond to the court’s ruling through legislation (see 2209020032.