Broadcasters told a federal appeals court that the FCC's decision to make broadcasters affirmatively investigate whether programming -- including ads and infomercials -- was being paid for by foreign entities was an arbitrary and capricious, unconstitutional response to a "phantom" problem.

That came in a reply brief in broadcasters' challenge to the FCC's unanimous vote last April to boost disclosures for programming on airtime leased by a foreign entity, a decision that came amid heightened focus in D.C. on disinformation campaigns and despite pushback from broadcasters, who argue the FCC is adding regulations to an already overregulated service, including charging broadcasters with the responsibility to investigate for that foreign ownership.

The FCC two weeks ago filed their brief in defense of the decision.

In defense of the suit, the National Association of Broadcasters told the court in its brief this week that broadcasters' duty to find out who pays for programming is confined to doing due diligence to find out from those it deals with directly the source. That is because a court has already ruled that statutory language imposes no burden of "independent investigation" by licensees.

And even if that were not the case, NAB said, the rule change violates the First Amendment because it compels speech, which is a content-based regulation that has to be "narrowly tailored" to further a "sufficiently important" governmental interest.

NAB said far from being sufficiently important, the requirement is "pointless" because it addresses a phantom harm, not real ones, since it is a harm "never known to occur," said NAB.

On the other side, the affirmative obligation on broadcasters means that since, it says, there is a minuscule" chance of any lessor being on the government's foreign entities list, lessors will say, truthfully, that they are not, triggering the broadcasters' obligation to investigate that claim and confirm it. ■

The Federal Communications Commission is defending its decision to make broadcasters do some extra due diligence in identifying foreign leased programming, a decision that came amid concerns about foreign disinformation in U.S. media.

Calling it a “minimal extension” of its longstanding regulations regarding foreign programming sponsorship, the FCC told the U.S. Court of Appeals for the D.C. Circuit it should not block that rule “extension.” The National Association of Broadcasters and others asked the court to do so in the form of a motion to stay the rule.

The FCC said broadcasters‘ beef is with a single “straightforward administrative requirement” — that stations “perform a name search on two government websites in order to confirm that the party to whom a broadcaster leases airtime is not a foreign governmental entity.”

There is a high bar for a judicial stay, including imminent and irreparable harm absent such a stay and likelihood of the success of NAB's case. The FCC said it will likely take several months for the new rule to take effect, because the Office of Management and Budget must sign off on the information collection obligations. The FCC said NAB has not shown that the rule, when it does go into effect, will cause irreparable harm. It rejects the NAB‘s claim that “unrecoverable compliance costs” — if the rule goes into effect and the court later overturns the compliance requirement — are irreparable harm because the economic hit isn‘t that big.

The NAB also said a stay would cause irreparable harm because it would run afoul of the First Amendment. The FCC said the disclosure requirement burdens speech, but does not prevent it; said it is narrowly tailored, as any speech regulations must be; and noted that the Supreme Court has said broadcasters have the most limited speech protections of “all forms of communications.”

Also: Broadcasters Seek Stay of Disclosure Rule

As to the NAB‘s winning, the FCC said requiring a name search in two government databases was a reasonable interpretation of the statutory requirement that broadcasters exercise due diligence in determining the source of their foreign-supplied programming

Late last month, broadcasters petitioned the court to stay the FCC's implementation of its decision to boost disclosure requirements for foreign government-sponsored programming, at least until that court can hear their underlying case for reversing that requirement.

The FCC voted unanimously last April to boost disclosures for programming on airtime leased by a foreign entity. The move came amid heightened focus in D.C. on disinformation campaigns and despite pushback from broadcasters, who argue the FCC is adding regulations to an already overregulated service, including charging broadcasters with the responsibility to investigate for foreign ownership.

The NAB, the Multicultural Media, Telecom and Internet Council and the National Association of Black Owned Broadcasters petitioned the FCC to stay the decision, but it declined to do so.

The commission suggests broadcasters essentially have no cause for their action.

FCC: Rule Was Made ‘Reasonably’

“The FCC reasonably determined that the challenged rule is necessary to ensure appropriate disclosure of broadcast sponsorship by foreign governmental entities. As we have shown, it does not violate the First Amendment rights of NAB’s members, and is only a modest extension of the existing broadcast sponsorship identification regulations, which NAB does not challenge,” the agency said. ”There is, in short, no basis for suspending the targeted, straightforward steps the FCC has taken to ‘increase transparency and ensure that audiences of broadcast stations are aware when a foreign government, or its representatives, are seeking to persuade the American public.’ ”

Broadcasters argued the FCC doesn’t have the authority to impose the obligation to investigate “every existing or new leased programming agreement” on broadcasters to ensure they do not run afoul of FCC rules.

Suggesting the FCC was signaling broadcasters for special mistreatment, they said the FCC order didn't say anything about undisclosed foreign government programming on cable systems or over-the-top video, where, they argue, the real problem is.

The FCC pointed out that the D.C. Circuit has already concluded in another case that a rule “is not fatally underinclusive simply because an alternative regulation, which would restrict more speech or the speech of more people, could be more effective.” Besides, it said, the agency is only empowered by the Communications Act to impose sponsorship ID requirements on broadcast stations.

Only about a quarter of Americans have even some trust in the information they get from social media outlets, down from about a third who said so in 2016, and a mere 4% say they have a lot of trust in that information.

That is according to a just-released Pew Research analysis, based on a June 2021 survey of 10,606 adults.

Only 19% of Republicans say they have some trust, down from 32% in 2016. But Democrats aren't that much more trusting at only about a third (34%) having some trust, about even with five years ago.

In other results, over the past five years, which coincides with the drumbeat of attacks on the media by Donald Trump, the percentage of those Republicans who say they have at least some trust in national news outlets has been sliced in half since 2016, from 70% of Republicans and Republican "leaners" to only 35% in 2021.

Also Read: Pew: Social Media Still Draw Crowd Despite D.C.'s Concerns

By contrast, 78% of Democrats and leaners say they have "a lot" or "some" trust in national news organizations, down slightly from a previous 86%.

Looking at both Republicans and Democrats combined, six in 10 say they have at least some trust in national news organizations, but that is down from 65% in late 2019.

Republicans have much more trust in local news organizations at 66% with at least some trust (that percentage is 84% for Democrats). But that is down from 79%.

The margin of error for the survey is plus or minus 1.5 percentage points.

House Democrats said their Wednesday (Feb. 24) hearing in the Communications Subcommittee entitled "Fanning the Flames: Disinformation and Extremism in the Media" was not an assault of the First Amendment or speech freedoms of those media, but an attempt to open a dialog and debate on their role in disinformation toward the end of curbing it.

Also Read: House Democrats Pressure Distributors

Republicans begged to differ, saying the hearing, in combination with a letter from House Democrats to distributors pressing them on carriage of Fox News, Newsmax TV and OANN, was clearly a threat to the First Amendment and a political effort to censor speech Democrats disagreed with. 

The twain did not meet, at least during today's hearing.

Driving the issue for Democrats was the pandemic and what they said was disinformation on traditional media, like downplaying its severity or the need for masks, as well as the Jan. 6 Capitol Insurrection, part of the blame for which Rep. Anna Eshoo (D-Calif.), one of the legislators who wrote distributors, said was built on a "foundation of lies" some of them coming from the media echo chamber about bogus claims of election fraud.

Trying to separate the hearing from the accusations Democrats were censoring speech, Eshoo said she recognized that the First Amendment prevents Congress from abridging speech, but did not stop Congress from examining the impact of misinformation.

Subcommittee Republican Leader Bob Latta (R-Ohio) was not assuaged, he said that while disinformation was a serious issue, the hearing was instead about the majority silencing certain viewpoints, including by asking private companies to stop carrying certain news content.

He called the hearing deeply troubling and a case of doubling down on the left's cancel culture instead of encouraging factual local and national news.

Rep. Steve Scalise (R-La.) called for some balance in calling out extremist speech's impact on action. He pointed out that when he and a dozen others were shot in 2017 while practicing for a congressional softball game was fueled by "hypercharged" rhetoric from the left. Scalise said that criticism should be consistent and not "from only one part of the spectrum."

Also Read: Hill Media Letter Is Intimidation

Rep. Frank Pallone (D-N.J.) also said he was a staunch defender of the First Amendment which he conceded meant Congress could not pass laws limiting controversial speech. But he said that does not mean they should ignore disinformation that causes harm, and the hearing was meant to put a spotlight on the issue and prompt an open dialog to help solve a "dangerous problem."

He said some of the questions it raises may be uncomfortable, but could help journalists find ways to cover controversial issues that don't undermine democracy, ways he says they "have to try to find."

Pallone said too many outlets have not seriously wrestled with their orle in spreading disinformation and that the hearing "spotlight" on a "smart and sensible" discussion is the best hope for addressing the challenge, that challenge being what he called in some cases daily doses of of disinformation amplified on broadcast and cable, which disinformation and extremism he said was a threat to the country. 

Also unassuaged was Rep. Cathy McMorris Rodgers (R-Wash.), Republican's leader of the parent committee, wh said there has never been a more obvious direct attack on the First Amendment, despite what the Democrats were saying. 

Also Read: FCC's Carr Says Dems Are Trying to Censor Newsrooms

She said the Democrats' effort was an abuse of power and the "deeply troubling" hearing was a hyperpartisan attempt to "shame and blame." She said not just right-wing media, but CNN and MSNBC should be troubled by attempts by elected official to pressure private companies, which sounded to her more like something coming out of the Chinese Communist Party.

“Should CNN still be carried after hosting Governor Cuomo? For months, liberal media lauded him and legitimized his lethal response to COVID-19. He even won an Emmy for his use of TV to spread misinformation," she said. but ultimately has concluded that both sides should be free to speak their minds.

Rather than censorship and silence, she said, the answer is more speech.

She was backed in that view by witness and George Washington University Law professor Jonathan Turley. "I believe that free speech is the greatest protection against bad speech," he told the legislators. "That view is admittedly under fire and indeed may be a minority view today, but history has shown that public or private censorship does not produce better speech. It is a self-replicating and self-perpetuating path that only produces more censorship and more controlled speech. I encourage you (indeed I implore you) not to proceed down that slippery slope toward censorship."

Witness and veteran journalist Soledad O'Brien said there was a big issue with traditional media disinformation, but also said the answer was more responsible journalism, not government intervention (https://www.nexttv.com/news/soledad-obrien-paints-damning-portrait-of-media-disguised-as-journalism).

The Media Institute, a media company-backed free speech defender, came out strongly Tuesday (Feb. 23) in defense of a free media and in opposition to a letter from a pair of House Democrats calling on video distributors to defend their carriage of news outlets Fox News, Newsmax TV and OANN against charges--by those Democrats--that they spread disinformation and promote extremism.

Also Read: House Dems Pressure Distributors

In a statement, Media Institute president Richard Kaplar said the letters, which went to Comcast, Cox, Dish, Charter, Roku and others, were an attempt to chill speech of certain outlets by intimidating the companies that distribute them.

While Kaplar said the spread of disinformation and misinformation are of legitimate concern, what was not legitimate was to try to control the content of media outlets.

“The letter from two members of the House Energy & Commerce Committee to several cable, satellite, and streaming services demanding that they explain their moral or ethical principles in deciding which channels to carry, and that these content distributors explain why they plan to continue carrying certain news channels, is an affront to the First Amendment," he said.

Also Read: FCC's Carr Says House Dems Are Trying to Censor Newsrooms

The House Energy & Commerce Committee is holding a hearing this week on what the Democratic majority said is traditional media's role in promoting disinformation and extremism.

The House Energy & Commerce Committee has lined up at least three witnesses for its hearing next week titled "Traditional Media’s Role in Promoting Disinformation and Extremism."

Also Read: Hearst Hosts TV Debut of Hard Truth

Confirmed to testify are Soledad O'Brien, anchor of Matter of Fact and CEO, Soledad O'Brien Productions; Emily Bell, director, Tow Center for Digital Media, Columbia University; and Kristin Urquiza, co-founder, Marked by COVID.

“The prolonged severity of the COVID-19 pandemic and the attack on our Capitol on January 6 have driven home a frightening reality: the spread of disinformation and extremism by traditional news media presents a tangible and destabilizing threat,” said House E&C Chairman Frank Pallone (D-N.J.) and Communications Subcommittee Chairman Mike Doyle 9D-PA.) in announcing the Feb. 24 hearing.

The hearing will be remote via Cisco Webex.

Cable operators and broadcasters agree that the Federal Communications Commission should be careful in making sure viewers know where their video and audio content is coming from, an issue that has taken on new urgency in an age of disinformation campaigns by foreign actors.

The FCC effort currently applies only to broadcast material, but broadcasters say it should apply to cable as well. 

The FCC voted unanimously last October to establish disclosure requirements for broadcast TV and radio content sponsored by foreign governments. The proposed rules require “a specific disclosure at the time of broadcast if a foreign governmental entity has paid a radio or television station, directly or indirectly, to air material, or if the programming was provided to the station free of charge by such an entity as an inducement to broadcast the material.”

The disclosures must be made at the beginning and end of each program and at least once per hour for programming longer than 60 minutes, though those are tentative guidelines, with the wording, time, frequency and duration still to be determined.

Broadcasters and cable operators are all for disclosure of potentially harmful disinformation, but argue that the current language could mean labeling non-malicious, or as the National Association of Broadcasters put it, “sweep in a much broader swath of content than the intended target of foreign propaganda,” and thus needlessly tarnish it with the scarlet letter of a disclosure warning.

The NAB has argued that the FCC needs to confine the disclosures to programming on controversial issues of public importance, to exclude advertising and B-roll footage and archival material and to adopt a “due diligence” standard for determining whether or not material needs to be disclosed, essentially meaning best efforts at such a determination should be sufficient.

NCTA-The Internet & Television Association said if the FCC does decide to apply the rules to cable as well as broadcast, as a Democratic commission is likely to do, it should follow NAB’s lead by not making the disclosures overly broad. The FCC also should not require program distributors to “conduct investigations into whether an entity or individual is in fact a foreign governmental” but instead require them to “exercise reasonable diligence by asking the entity whether it qualifies as a foreign governmental entity,” rather than the FCC’s proposal of making broadcasters, and potentially cable operators, review the Justice Department’s Foreign Agents Registration Act database and the commission’s list of U.S.-based foreign media outlets, NCTA said.

NCTA said the more rigorous reviews would “place unrealistic expectations on cable operators and broadcasters,” require them to guess what the FCC will later conclude is reasonable diligence and result in an “administrative quagmire.”

The Biden White House has signaled clear concerns with foreign media content. In the Feb. 3 daily briefing, press secretary Jen Psaki was asked about the White House’s position on RT (Russia Today). Psaki said she had not spoken with the president about RT, but said it was “pretty factual” to say the outlet was a Russian propaganda tool.

“I think there is no question as we are trying to decipher information that is accurate or inaccurate it is important for the American people to know that there are outlets working on behalf of foreign governments who have an agenda,” Psaki said. 

Florida real estate developers Ken and Linda McGurn have donated $2 million to the University of Florida (they are both alumni) to launch a Fellowship Program for Media Integrity and the Fight Against Disinformation.

Also Read: Groups Seek Federal Protections for Journalists

The money will go to fellowships at the university's College of Journalism and Communications, Levin College of Law and the Consortium on Trust in Media and Technology.

One of the legacies of President Donald Trump was his undermining of the credibility of the mainstream media, branding stories critical of him as fake news, as well as his support of debunked conspiracy theories as news and/or information.

The scholarships will go to lawyers and scholars as well as journalists in an effort to combat the "perilous trend" of lack of trust in news and information. “The spread of false information and increasing distrust of credible news organizations is a scourge that is polarizing our nation and endangering our ability to survive as a democracy,” said Linda McGurn in a statement.

Also Read: Trump Has Crossed Dangerous Line Says Journalist Group

The goals of the program are to "[d]evelop ways to educate the public about disinformation and the technology that contributes to its spread; regulate disinformation within the confines of the First Amendment; and support reporting and decision-making rooted in evidence and facts."

That effort will include courses, workshops, white papers and policy proposals.

As part of its #WhatToExpect2020 project to fight election disinformation, PEN America has launched an interactive quiz to test web surfers' knowledge of how to "spot, fact check, and stop" false information.

The quiz includes personalities--Ian Cumming, John Lithgow, and others--featured in its YouTube video on disinformation.

The PEN America Project includes "disinformation defense" workshops, regional town halls, and a webinar on "election calls, projections, and how news organizations plan to navigate the challenges of election night 2020."

PEN (which stands for Poets, Playwrights, Editors, Essayists, Novelists) America defends free expression worldwide.

The House Energy & Commerce Committee has scheduled a joint subcommittee hearing June 24 to look at the impact of disinformation online. 

The issue is one of the hottest in Washington, with the President pushing back on his tweets being fact checked and constantly branding stories critical of him as fake news. 

The Communications and Consumer Protection Subcommittees will hold the hearing, titled “A Country in Crisis: How Disinformation Online Is Dividing the Nation.” 

Appropriately, or ironically, the hearing on the spread of misinformation and dangerous disinformation online will be held online.  

The remote hearing will take place via Cisco Webex and accessible on the E&C website.  

No word yet on witnesses. 

The European Commission has issued a new Code of Practice on Disinformation, which comnprises voluntary self-regulations on a host of things, from transparency and political advertising to closing fake accounts, to try and head off online election meddling ahead of the spring 2019 European elections.

The EC billed it as "first time worldwide that industry agrees, on a voluntary basis, to self-regulatory standards to fight disinformation."

The code was the product of "online platforms, leading social networks, advertisers and agencies," according to the commission, which released the code Wednesday (Sept. 26).

The code is meant to achieve the objectives of an April communication from the commission.

The basic commitments are pretty general, as could be expected of a self-regulatory code, with language like "could include" and "reasonable efforts." The commitments do include:

1) Use commercially reasonable efforts not to promote accounts or Web sites that consistently misrepresents information about themselves, including taking compensation from them.

2) Commit to "enabling public disclosure of political advertising (defined as for or against election of a candidate or passage of referenda in national and European elections), which could include actual sponsor identity and amounts spent.

3) Use "reasonable efforts towards devising approaches to publicly disclose "issue-based advertising."

The signatories to the code commit to producing an annual report of their efforts to counter disinformation, and make it public, so it is a "reviewable by a third party."

In the case of advertisers, the World Federation of Advertisers will provide aggregated reporting to identify "barnd safety activities" by brands. In the case of ad agencies, the European Association of Communications Agencies (EACA) will do the same thing for ad agencies.

Signatories will review the code every 12 months.