FCC Still Reviewing Plan to Expand Broadcasters’ Obligations to Obtain Certifications from All Program Buyers on their Connection to Foreign Governments – What is Being Proposed? 

In October 2022, I noted in an article that many broadcasters were totally confused by the FCC’s rules requiring that they seek certifications as to whether or not a foreign government is behind anyone buying programming time on a broadcast station.  In our 2022 article, we noted that, even though broadcasters did not fully understand the existing rule, the FCC was considering expanding that requirement to require use of a specific form to obtain these certifications from program buyers.  From notices filed with the FCC recently, it appears that there have been several meetings with the Commission and representatives of the broadcasting community about these proposed enhanced certifications, making it appear that the FCC is nearing a decision.  It appears that the new certifications, if adopted, will be very cumbersome, particularly for the unsophisticated program buyers who are likely to be many of the buyers of program time on small market stations.  These buyers are likely to find the certification process somewhat intimidating, and may even be scared off from buying any broadcast programming time as a result.  We thought we should take another look at what is already required and what is now being proposed.

Currently, the certifications that broadcasters must obtain from a program buyer must indicate that the programmer is not a “foreign government entity,” a term that includes any foreign government or foreign-government owned entity, an agent of a foreign government, or someone who has been paid by a foreign government to produce the program.  As we noted (see our articles here and here), the rules requiring these certifications went into effect on March 15, 2022 for any new agreements effective after that date, and September 15, 2022 for obtaining certifications from programmers who were already on the air as of March 15.  They cover not only those who buy program time on a broadcast station, but also those that provide program time free to broadcasters with the understanding that the programming will be aired.  The certifications do not cover programming that the broadcaster buys (either for money or through barter – including by giving the programming supplier advertising time that the programmer can resell in exchange for the programming).  And they are not required for spot advertising buys. 

When I am speaking at broadcast association meetings across the country, I am almost always asked why the FCC is seeking this information.  The FCC decided that it had to act in this area when, in a couple of high-profile cases in major markets, program time was being purchased by entities that represent foreign governments – with Russian and Chinese news and information programming being of the most concern.  When these instances were highlighted by other US government agencies and through political complaints, the FCC felt that it had to act.  I don’t think that many broadcasters would have concerns if the rules were limited to situations where a foreign government is in fact buying program time or doing a time brokerage agreement with the intent of airing its slanted news to US citizens.  I can’t imagine that many would object to requiring that such programming make clear to the public that it is sponsored by an entity related to a foreign government.  But the concern that many have raised with the new proposals is that they are not limited to the intended harms against which they are designed.  Instead, they apply broadly and already impose burdens on broadcasters and programmers even in instances where there is no doubt that companies buying time on broadcast stations are not posing any threat to US interests.

And now, the pending FCC proposal is to add to that paperwork burden. In its Second Notice of Proposed Rulemaking in 2022, the FCC asked whether it should expand the existing obligations to identify foreign government-backed programming.  The FCC’s proposal seeks to standardize the certifications obtained by broadcasters from entities that buy program time on their stations.  Under the rules that went into effect in 2022, licensees could come up with their own forms to get certifications from the buyers of program time to assure that they were not agents of foreign governments, often simply including a representation in their contracts with program buyers containing the required certification.  While having a standardized form is often a good idea so that broadcasters have no doubt that the wording that they are using is the right wording, that standardized wording can become so detailed that compliance can become unduly burdensome.  The proposed new FCC language is very thorough and thus very detailed, and to many exceeds the point at which it imposes an unreasonable burden on those that would be subject to its requirements.  Rather than take our word for the claim that the certification is detailed, take a look at the language that the FCC is proposing to require each buyer of program time review and sign:

(1) I am authorized on behalf of [Lessee] to certify to the following:

a. [Licensee] has informed [Lessee] at the time of [entering into OR renewal of] this agreement of the foreign sponsorship disclosure requirement contained in 47 CFR § 73.1212(j);

b. [Licensee] has inquired of [Lessee] at the time of [entering into OR renewal of] this agreement whether [Lessee] falls into any of the categories listed in the Federal Communications Commission’s (FCC) rules at 47 CFR § 73.1212(j) such that the [Lessee] qualifies as a “foreign governmental entity,”; i. The term “government of a foreign country” has the meaning given such term in the Foreign Agents Registration Act of 1938 (FARA), 22 U.S.C. § 611(e); ii. The term “foreign political party” has the meaning given such term in the Foreign Agents Registration Act of 1938 (FARA), 22 U.S.C. § 611(f); iii. The term “agent of a foreign principal” has the meaning given such term in the Foreign Agents Registration Act of 1938 (22 U.S.C. § 611(c)), and who is registered as such with the Department of Justice, and whose “foreign principal” is a “government of a foreign country,” a “foreign political party,” or directly or indirectly operated, supervised, directed, owned, controlled, financed, or subsidized by a “government of a foreign country” or a “foreign political party” as defined in subsection 73.1212(j)(i) and (ii), and that is acting in its capacity as an agent of such “foreign principal;” iv. The term “United States-based foreign media outlet” has the meaning given such term in Section 722(a) of the Communications Act of 1934 (47 U.S.C. § 624(a)). 21 Federal Communications Commission FCC 22-77

c. [Licensee] has inquired of [Lessee] at the time of [entering into OR renewal of] this agreement whether [Lessee] knows if any individual/entity further back in the chain of producing or distributing the programming that will be aired pursuant to the lease agreement, or a sub-lease, qualifies as a “foreign governmental entity,” as that term is defined in 47 CFR § 73.1212(j)(2), and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself;

d. [Lessee] certifies that it [is OR is not] a “foreign governmental entity,” as that term is defined in 47 CFR § 73.1212(j)(2);

e. If applicable: [Lessee] certifies that to its knowledge [Individual/Entity] qualifies as a “foreign governmental entity,” as that term is defined in 47 CFR § 73.1212(j)(2), and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself;

f. If applicable: [Lessee] certifies that to its knowledge there is no individual/entity further back in the chain of producing or distributing the programming that will be aired pursuant to the lease agreement, or sub-lease, that qualifies as a “foreign governmental entity,” as that term is defined in 47 CFR § 73.1212(j)(2), and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself;

g. If applicable: [Lessee] certifies that to its knowledge there is an individual/entity further back in the chain of producing or distributing the programming that will be aired pursuant to the lease agreement, or sub-lease, that qualifies as a “foreign governmental entity,” as that term is defined in 47 CFR § 73.1212(j)(2), and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself. The name, address, phone number, and email address, if known, of such individual/entity is [individual/entity name, address, phone number, and email address, if known];

h. To the extent applicable, [Lessee] has provided [Licensee] the information needed to append the following disclosure to lessee’s programming consistent with the FCC’s rules, found at 47 CFR § 73.1212(j)(1)(i): “The [following/preceding] programming was [sponsored, paid for, or furnished], either in whole or in part, by [name of foreign governmental entity] on behalf of [name of foreign country].”

i. [Lessee] certifies that during the course of the lease agreement, [Lessee] commits to notify [Licensee] if [Lessee’s] status as a “foreign governmental entity” changes or if [Lessee] learns that there is an individual/entity further back in the chain of producing or distributing the programming that will be aired pursuant to the lease agreement, or sub-lease, that qualifies as a “foreign governmental entity,” as that term is defined in 47 CFR § 73.1212(j)(2), and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself. 22 Federal Communications Commission FCC 22-77

j. I, [insert name of individual/entity authorized to certify on behalf of Lessee] by my signature attest to the truth of the statements listed above.

While sophisticated entities (like those backed by foreign governments) might have the resources to parse the language of this certification, broadcasters should consider if the detail in the proposed wording would frighten the typical small market program time buyer, leading to less diverse broadcast programming.  Will every church, real estate broker, foreign language programmer, or other buyer of program time on the typical station be willing to sign this certification – and if they do, will they have any idea of what it means?

The Second Notice would also require that all certifications obtained from program buyers be uploaded to the station’s online public file.  The current rules only require that certifications from entities that do in fact have foreign government connections be included in the public file.  If the FCC’s proposal is adopted, every certification from every local church, real estate broker, or travel agent attesting that they are not foreign agents would have to be included in the public file.  In addition, for each program, the broadcaster would themselves have to sign a certification of similar length, making clear that they have received the program buyer’s certification and explained what all the elements of the certification are.  That, too, would need to be included in the public file. 

The vast majority of broadcasters have never been approached by a foreign entity to buy program time (or, in the few cases where there have been foreign government-backed entities who have sought program time, they have been innocuous commercial purchases, like those by the Tourist Bureau of some resort destination or an airline owned by a foreign government investment fund).  Virtually all program time sold by broadcasters, especially by small-market broadcasters, is sold to someone the broadcaster already knows through the community or through their broadcast industry connections.  For instance, there are churches across the country that buy time on stations for the broadcast of their Sunday services, real estate brokers who buy time on TV stations to broadcast videos of the homes that they have for sale, or local professionals who host programs (e.g., lawyers or travel agents) to talk about their area of expertise with the hopes of interesting listeners in their services.  Local radio stations often have weekly or even daily programs that spotlight local businesses (for which the local business pays money to be featured).  Some stations will feature local programmers who play music to serve immigrant, ethnic, or minority communities.  These are not situations where there is anything nefarious occurring – these are business transactions to promote local community interests.  Yet all are seemingly caught up in the sweep of the FCC’s actions proposing to require that broadcasters assure themselves that no foreign government is influencing broadcast programming.

As noted above, some broadcasters have already filed comments in the FCC proceeding to explain how burdensome these requirements will be, and to urge the FCC to be more realistic about their expectations.  Interested broadcasters can themselves file something in this proceeding by going to the FCC’s Electronic Comment Filing System, typing in the Docket number of this proceeding (20-299), and providing their comments.  We recently wrote an article where we acknowledged that, while the FCC can regulate broadcasters, is this really the time for regulation that was not narrowly designed to address some specific demonstrable harm, especially where the new regulation provides a great potential for “gotcha” moments where if any paperwork is overlooked, the broadcaster can get penalized?  This proceeding may be one of those times when the FCC should consider if these new proposals are really narrowly targeted to get to the proposed harms, or whether the rules already in place capture the information that the FCC seeks.  Sometimes, the FCC should leave things as they are, and broadcasters who share these concerns may want to let the FCC know their feelings.