The FCC has voted to boost broadcasters' disclosure requirements for programming on airtime leased by a foreign entity. The move comes amidst heightened focus on disinformation campaigns and despite some pushback from broadcasters, who argue the FCC is adding regs to an already overregulated service.
The vote on "Enhancing Transparency of Foreign Government-Sponsored Programming," came at the FCC's April 22 public meeting was unanimous and was on a report and order (final action) requiring clear disclosures for broadcast programming that has been provided by a foreign government or its representative.
The FCC's foreign disclosure rules were last updated in 1963.
The item requires broadcasters both to provide clear and uniform disclosures at "reasonable intervals" when airing leased content sponsored by a foreign government, but also take a number of steps to determine if leased airtime is being used for such programming. It also requires broadcasters to place copies of their disclosures in their public files.
The item in final form was actually a partial victory for broadcasters. While it still requires them to search two government-provided sources* for determining the origin of leased programming as part of a "reasonable" due diligence standard, it only applies to leased programming and the FCC eliminated the requirement that stations have to conduct "unbounded" internet searches as well, which broadcasters had argued was overly burdensome and the FCC agreed.
Commissioner Geoffrey Starks said he supported that and other minor changes since they were in response to input that had "informed the record," which was how the rulemaking process should work, he said.
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.
In a blog post in advance of the FCC vote, and looking to head off a host of mandates related to establishing the origins of foreign programming, National Association of Broadcasters General Counsel Rick Kaplan said broadcasters supported the goal of helping the public better understand when they are listening to programming sponsored by a foreign government, only a handful of such cases exist--as opposed to on satellite TV, for example, or online--and not enough cases to justify "yet more asymmetric regulation." Translation: Broadcasters already have ownership and programming regs that don't apply to their competitors.
The FCC did not extend the reporting requirement to cable or satellite, as broadcasters had suggested would only be fair if broadcasters were subject to them.
Foreign governments and their agents can't hold a broadcast license, but in announcing the April 22 vote, acting chair Jessica Rosenworcel had said that "foreign governmental entities are increasingly purchasing time on domestic broadcast stations," which is why she said the FCC was acting. She reiterated that at the meeting, pointing out that included from China and Russia.
Rosenworcel also pointed out that Rep. Anna Eshoo (D-Calif.) had called on the FCC multiple times to do something about foreign ownership disclosure, so the vote was a testament to her persistence.
Overregulating in the interest of the legitimate disclosure goal was "old-world regulation at its worst," Kaplan argued in advance of the April 22 vote. "There is simply no good reason why the Commission needs to saddle thousands of leases with new burdens of any kind, especially when the Commission hasn’t even asserted that broadcasters often do not know in the first instance if content they are airing is sponsored by a foreign government," he said.
But the FCC commissioners concluded broadcasters should get new program leasing disclosure obligations, just not quite as many as originally planned.
“NAB supports the FCC’s goal of ensuring that the public understands when it listens to or views programming supplied by foreign governmental entities," said National Association of Broadcasters senior VP of communications, Ann Marie Cumming. "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. Even though we do not believe the Commission ultimately achieved this aim, we greatly appreciate the efforts of Commissioners Carr and Simington to avoid undue regulatory burdens, and the efforts of the Media Bureau to constructively engage with us throughout this proceeding.”
“The American people have a right to know when a foreign adversary is buying up time on airwaves owned by the American public to broadcast anti-American propaganda," said Eshoo after the vote. "We know for a fact that Russian state-sponsored media outlets RT and Sputnik meddled in our 2016 elections and have continued to undermine trust in our democracy ever since,” said Rep. Eshoo. “I welcome the FCC’s decision to finalize a rule to defend our democracy and protect American airwaves.”
*Broadcasters must check the Justice Department's FARA [Foreign Agents Registration Act] web site and the FCC's foreign media outlet reports.
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