FCC: Agency Gave Proper Notice of Foreign-Sponsored Content Changes
The FCC gave proper notice that the 2024 foreign-sponsored content rules could apply to noncandidate political advertising and public service announcements, the agency said in a brief Friday filed in docket 24-1296 at the U.S. Court of Appeals for the D.C. Circuit. It also said Congress authorized the requirement that stations obtain certifications that their air time isn’t being leased by foreign governments. The law gives the FCC the power to require broadcasters to use “reasonable” diligence to determine the sponsor of an ad or lease, the agency said, citing the U.S. Supreme Court’s Loper Bright v. Raimondo decision striking down Chevron deference. “The use of the term ‘reasonable’ means Congress ‘authorized’ the agency ‘to exercise a degree of discretion’ in determining the diligence required,” the FCC said.
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Though NAB has argued that the rules violate the Administrative Procedure Act because the foreign-sponsored content NPRM didn’t specifically seek comment on applying them to non-candidate political ads and PSAs, the FCC disagreed. Language in the NPRM sought comment on how to distinguish regular ads from the leased airtime that was the focus of the proceeding and suggested content as one way to do so, the FCC said. This should have put commenters on notice that the 2021 foreign-sponsored content rules’ exemption of “traditional, short-form advertising” would be reexamined, the FCC said. “The clarification that issue advertisements and paid PSAs are covered, not excluded from the rules, was easily a ‘logical outgrowth’ of the NPRM.”
The agency also rejected NAB's constitutional arguments about the rules. “Applying the foreign sponsorship identification rules to issue advertisements and paid PSAs, while excluding political candidate advertisements, is consistent with the First Amendment,” the FCC said. “Even if that exclusion looks to content, it is well established that lesser First Amendment scrutiny applies to broadcast regulations.” Along with the court challenge, NAB has asked the OMB to block or delay the rules under the Paperwork Reduction Act (see 2501140066). As commissioner, new FCC Chairman Brendan Carr voted against the rules in May (see 2406100063).