The FCC decided in June to tighten its foreign program sponsorship disclosure requirements, but now the National Association of Broadcasters is asking a federal appeals court to set aside the new rules.
The modified sponsorship identification requirements for foreign government-provided programming (MB Docket No. 20-299) took effect on Aug. 15. It was a re-do for the commission after the U.S. Court of Appeals in 2022 sided with broadcasters and struck down an aspect of the rules that required broadcasters to independently investigate whether lessees were foreign governmental entities.
Admonishing the newly-adopted rules, in an email to Radio World, the NAB said it strongly opposes the FCC’s latest record-keeping order, “which overreaches without adequate justification or public notice.”
The NAB continued: “These expanded requirements place an unnecessary burden on broadcasters who already comply with strict FCC regulations, while social media platforms, the true conduits for foreign propaganda, remain largely unregulated.”
In its defense, the FCC says it replaced a verification requirement with an approach that avoids the investigatory obligation on the part of licensees.
The commission says the revised approach provides radio and television broadcast licensees with two options for demonstrating that they have met their duty of inquiry — a.k.a. that they have sought to obtain the information needed to determine whether programing is sponsored, paid for or furnished by a foreign governmental entity.
The new rules also require broadcasters to make a public disclosure, at the time of broadcast, identifying the foreign source of the programming.
The NAB has argued against the revised disclosure requirements, saying it believes the FCC lacks the power to regulate lessee disclosures and, further, impose certification requirements on broadcasters and lessees.
“Under current FCC rules, the small number of stations airing foreign-government-sponsored content already prominently disclose it to their audiences,” said the NAB in its email. “Broadcasters have never opposed these rules and are fierce advocates of keeping their audiences informed.”
The NAB in its court filing says the newly-adopted rules exceed the FCC’s authority under the Communications Act of 1934, violates First Amendment-protected speech and includes several other tripping points.
It contends the FCC violated the mandatory-notice-and-comment procedures by extending the foreign sponsorship identification rules to certain short-form advertising that previously was expressly excluded from the rules.
NAB also argues that the commission “failed to engage in reasoned decision making, offering no evidence to support the rule’s expansion and drawing nonsensical distinctions between exempt and non-exempt advertising.”
The FCC lacks the authority to impose corroboration requirements on lessees, via certifications or documentation of their status, the NAB continues.
“These suspect foreign government lessees include churches seeking to air their services, schools wanting to air sporting events, local businesses with programming related to their specific lines of business and now those seeking to air advertisements on political issues,” the NAB wrote in the petition for review.
The advocacy group concluded by asking that the court set aside the FCC order.
“The NAB respectfully requests that this court hold unlawful, vacate, enjoin and set aside the order and grant such additional relief as may be necessary and appropriate.”
Under the new disclosure requirements, broadcasters have two options for showing that they have sought the information needed to determine if programming is provided by a foreign government. A station can complete a written certification using the standardized certification language provided by the FCC, or draft similar written language of their own.
Option two includes having the licensee ask the lessee to supply screenshots verifying searches of its own name on differing government websites as proof of legitimacy.
These sponsor ID rules do not apply to sales of advertising for commercial goods and services. They also do not apply to political candidate advertisements, according to the order. However, the new rules include political issue ads by non-candidates and paid public service announcements.
The FCC also declined to create an exemption from the rules for religious programming and locally-produced and/or distributed programming.
The FCC’s foreign program sponsorship disclosure vote in June was 3-2 along party lines with Republicans on the commission dissenting.
FCC Chairwoman Jessica Rosenworcel said in a statement at the time: “If a foreign government (like the Chinese government) pays to broadcast programming or campaign advertising, a disclosure is required at the time it is aired (simply saying it is from the Chinese government). As listeners, viewers, and citizens this is something we are entitled to know.”
