A bipartisan, bicameral effort in Congress is looking to help the Federal Communications Commission reinstate a new rule requiring broadcasters to do more due diligence when identifying foreign-sponsored programming and FCC Democrats are on board with the effort.

Not only would it restore a mandate to check two government databases, but broadcasters would have to check anywhere else the FCC thinks they should go to establish the identity of foreign programming.

After the FCC unanimously passed a new rule saying broadcasters had to check two government databases (the Department of Justice’s Foreign Agents Registration Act website and the FCC’s U.S.-based foreign media outlets reports) to ensure that such programming was identified to viewers, the U.S. Court of Appeals for the D.C. Circuit vacated that new rule, saying the agency didn't have the authority to require that extra step.

The FCC had said broadcasters needed to check the two federal sources to determine a sponsor's identity, which went beyond the 1934 Communications Act requirement to ask employees and advertisers for the information necessary to establish sponsorship.

Also: Court Nixes FCC Double Verification Mandate

Just last week FCC chair Jessica Rosenworcel circulated a new proposal to toughen the foreign-sponsorship identification rules without the mandatory database check, hoping that will pass muster with the courts.

But Monday (Oct. 17), Rep. Anna Eshoo (D-Calif.) and Sens. Brian Schatz (D-Hawaii) and Marsha Blackburn (R-Tenn.) introduced House and Senate versions of a bill, the Identifying Propaganda on Our Airwaves Act, that would give the FCC the statutory backing to require broadcasters to check those databases or, for that matter, “any additional source of information the Commission designates that may enable the licensee to verify whether the matter broadcast by the radio station was paid for or furnished by a foreign governmental entity.”

“By giving the FCC the authority to require disclosure of this foreign propaganda, our bipartisan bill will help stop this practice and improve programming transparency on TV and the radio,” Schatz said.

“The legislation grants the FCC the authority to require broadcasters to check sources that actually identify foreign agents and their shell companies when entering into and renewing airtime lease agreements for sponsored programming on the radio,” Blackburn said.

“The principle that the public has a right to know the identity of those who solicit their support is a fundamental and long-standing tenet of broadcasting,” Rosenworcel said. "Consumers deserve to trust that public airwaves aren't being leased without their knowledge to foreign governments. I appreciate the leadership of Senators Schatz and Blackburn and Representative Eshoo for their efforts to increase transparency and ensure consumers know who is behind the information transmitted over public airwaves."

Commissioner Geoffrey Starks said: “The fact that foreign governmental entities are covertly broadcasting on our television and radio stations is alarming. The American people have a right to know the identity of those using the public airwaves in order to be informed and make their own decisions in separating truth from disinformation.”

The FCC had argued that double verification fell within reasonable diligence and its general authority to prescribe appropriate rules and regulations. The National Association of Broadcasters (NAB) had argued broadcasters had told the 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, pointing to a past court decision that statutory language imposes no burden of “independent investigation” by licensees.

The new bill includes that statutory language does impose the “burden” of independent investigation.

“We are closely reviewing this legislation," said NAB spokesperson Alex Siciliano. "NAB and several other broadcast organizations have worked to ensure the rules are focused on the handful of broadcasters that air foreign government-sponsored programming, without creating burdens for the vast majority of broadcasters that do not air this content. As we have made clear from the beginning, we share the goal of ensuring that the public understands when it is watching or listening to foreign propaganda.” ■

The FCC said broadcasters' challenge of its new program sponsorship rule changes are wrong on all counts.

That point was made in the commission's brief to the U.S. Court of Appeals for the D.C. Circuit.

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 FCC now requires a TV station to both ask whether a lessee is a foreign governmental entity and if they say no, confirm that with a check of the Justice Department’s online Foreign Agents Registration Act database." It argues that "reports of hidden broadcast program sponsorship by foreign governments or their representatives through the leasing of airtime called for a measured response to protect the public’s right to know."

The National Association of Broadcasters, joined by the Multicultural Media, Telecom and Internet Council and the National Association of Black Owned Broadcasters, challenged the decision in D.C. Circuit, which has principal jurisdiction over FCC decisions.

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.

In its brief to the court this week, the FCC laid out its case succinctly: "The Commission reasonably interpreted Section 317 [of the Communications Act] to authorize a limited and straightforward name search requirement to verify that a party leasing airtime is not a foreign governmental entity. Broadcasters have long been subject to sponsorship identification rules (which Petitioners do not challenge here), the added burden of the new rule is minimal, and the rule serves a substantial governmental interest. The rule therefore complies with the First Amendment and the Administrative Procedure Act."

The government is allowed to regulate speech, but it must take the least restrictive means and have a strong, or for the most restrictive measures, compelling government interest in doing so. The Administrative Procedure Act said an agency must not be arbitrary or capricious. ■

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.

The FCC has voted unanimously to take steps to "improve" the foreign ownership review process by which the FCC submits foreign communications outlet ownership proposals to executive branch agencies for national security reviews, a process that has historically been labeled the "team telecom" review.

The FCC billed the changes as improving timeliness and transparency. It came in response to President Trump's executive order on setting timelines for such reviews and rechristening the team telecom the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector.

The committee's aim is to help keep the telecommunications sector secure from foreign threats to national security, including by revoking existing licenses if necessary. The new committee will be chaired by Attorney General William Barr and funded by the Department of Justice.

The FCC's rules in response to the order sets a 120-day time frame for initial reviews, and a possible 90-day extension in some circumstances. It also requires certain certifications from applicants with reportable foreign ownership to protect national security and law enforcement.

The report and order also requires the committee to provide status reports on its reviews to the FCC, makes clearer what applicants need to be referred for a national security review, standardizes review questions, and more.  

The FCC's International Bureau will seek comment on those standardized questions.

FCC commissioner Michael O'Rielly said the item would go a long way to ensuring that applicants get and answer within "a reasonable time frame.

Commissioner Jessica Rosenworcel said the changes "which include strict timeframes and increased clarity about just which applications will be referred to this committee, will improve national security review. They also add much-needed transparency to the process.”

But while she applauded the new rules as progress, she wanted more: "We make a mistake if we stop here," she said. "We should establish a clear standard and process for revoking a foreign carrier’s existing authorizations on national security grounds. Right now we don’t have one and that means are hands are unnecessarily tied when it comes to national security. We also should require periodic review and renewal of foreign carrier’s FCC authorizations.”

FCC commissioner Geoffrey Starks approved the item, but said there is more work to be done on the issue of undersea cables. “While the Commission has been rightfully focused on removing threats within U.S. networks, whether through foreign-made equipment or via authorizations to operate within the United States, we can’t neglect a critical aspect of modern communications that is also subject to the Commission’s oversight -- the international carriage of traffic between the US and the rest of the world via undersea cables...These cables carry 99% of the world’s internet traffic," he said.

“Adversary states like China are seeking to tamper with, block, or access our communications on these cables by routing them through their territories, taking ownership interests, and controlling the companies that manufacture and install them. The FCC and Team Telecom need to work together to ensure that we have sufficient protections, including alternate routes, so we can keep our communications secure.”

FCC chairman Ajit Pai said the vote was a critical milestone, offering much-needed clarity on the rules of the road and fixing a broken review process. He said the U.S. benefits from both foreign and domestic investment and praised the influx of foreign capital, but said it must be balanced with national security, trade policy, foreign policy and law enforcement interests that may be implicated by foreign investment.

He said the FCC rules complement the executive order and provide clear direction to applicants and more efficient and effective reviews. In a press conference following the meeting, Pai said he has been concerned about those cables for a while and he wants to make sure the FCC works with all its partners to secure those undersea infrastructures.

Pai thanked commissioner O'Rielly for pushing for a revise of the team telecom reviews.

“As the Commission rightly scrutinizes certain foreign ownership transactions for national security, law enforcement and trade concerns, today’s action will help provide certainty in the process and appropriately limit regulatory and administrative burdens for run of the mill transactions," said USTelecom in a statement. "This order keeps Team Telecom resources directed squarely on its mission – identifying and evaluating foreign threats to our network services and infrastructure. The Commission should use its discretion to implement its reforms immediately in order to make the review process more efficient for applicants and Team Telecom.”

President Donald Trump has ordered the review and possible revocation of the applications for, or sales of, FCC licenses, but it has nothing to do with the President's view of media outlets or his legal team's threats against TV station owners. 

Trump issued an executive order Saturday (April 4) establishing the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector. 

Related: FCC Denies China Mobile Interconnect 

The committee's aim is to help keep the telecommunications sector secure from foreign threats to national security, including by revoking existing licenses if necessary. The new committee will be chaired by Attorney General William Barr and funded by the Department of Justice. 

The committee will make recommendations to the FCC on whether it should "dismiss an application, deny an application, condition the grant of an application upon compliance with mitigation measures, modify a license with a condition of compliance with mitigation measures, or revoke a license." 

The committee will comprise Barr, the Secretary of Defense, the Secretary of Homeland Security, and any other head of an agency or an assistant to the President and Trump's discretion. It will be authorized to collect info from applicants to help with that review. That info can't be disclosed outside the committee and committee advisers. 

Related: FCC Sets Deadlines for Foreign-Owned Media Outlet Reports

Advisers to the committee will include the Secretary of State, the Secretary of the Treasury, the Secretary of Commerce, the director of the Office of Management and Budget, the United States Trade Representative, the director of National Intelligence, the administrator of General Services, the assistant to the president for National Security Affairs, the Assistant to the president for Economic Policy, the director of the Office of Science and Technology Policy, and the chair of the Council of Economic Advisers. 

The FCC will refer applications to the committee for review. If the committee determines that granting a license does  not raise a risk to national security or law enforcement, it will tell the FCC so. It has 120 days to make a recommendation from the time applicant responses to committee questions are complete. That is, unless it says it needs to further evaluate the application, in which case it gets another 90 days to make a recommendation. 

Related: Russian Television Says It Has Registered As Foreign Agent

The committee can also review existing licenses, but that will take a majority vote of the committee. For any license reviewed, existing or applied for, the Director of National Intelligence will provide a written threat assessment. The director has 30 days to provide that assessment from when the committee has gotten all the answers it requested from an applicant or from when the chair seeks such an assessment. 

“I applaud the President for formalizing Team Telecom review and establishing a process that will allow the Executive Branch to provide its expert input to the FCC in a timely manner, "said FCC Chairman Ajit Pai. "Now that this Executive Order has been issued, the FCC will move forward to conclude our own pending rulemaking on reform of the foreign ownership review process. As we demonstrated last year in rejecting the China Mobile application, this FCC will not hesitate to act to protect our networks from foreign threats. At the same time, we welcome beneficial investment in our networks and believe that this Executive Order will allow us to process such applications more quickly.”

“Releasing the strategy is an important step toward building out secure, trusted 5G networks across the United States," said 5G Action Chairman Mike Rogers. "Providing certainty for businesses and coordinating nationwide efforts will go a long way to helping driving American innovation and investment.”