By: David Oxenford,
Wilkinson Barker Knauer LLP
The FCC this week announced that broadcasters must now comply with new rules designed to identify when programming is run on U.S. stations that was provided by a foreign governmental entity pursuant to a lease of airtime. While this seems like a narrow purpose, the new rules will impose a burden on broadcasters. Because of First Amendment considerations, the FCC cannot totally prohibit the broadcast of such programming, but it adopted this rule to ensure that audiences are informed about programming backed by a foreign government. The NAB and other groups have appealed the FCC’s rules, and that appeal is pending. The court also denied a request to delay the requirements of the new rules from going into effect. Thus, broadcasters must begin to comply with the rules now.
The FCC’s rules require broadcasters to make a very specific sponsorship identification disclosure in programming aired under an agreement for the lease of airtime if that programming has been supplied by a “foreign governmental entity” (defined in the rule), or if anyone involved in the production or distribution of that programming aired pursuant to the lease agreement (or a sub-lease) qualifies as a foreign governmental entity. A foreign government entity is defined by the FCC rule (Section 73.1212(j)) to “include governments of foreign countries, foreign political parties, agents of foreign principals, and United States-based foreign media outlets.” The rule goes on to give other specific definitions of these terms.
A copy of this disclosure must be placed in the station’s online public file. The new rules also impose on broadcasters a burden to exercise “reasonable diligence” to determine whether the new requirements apply, which include making inquiries of their airtime lessees and confirming their answers by checking government websites. The rule states that broadcasters should do the following to confirm if the rules apply:
Independently confirming the lessee’s status, by consulting the Department of Justice’s FARA website and the Commission’s semi-annual U.S.-based foreign media outlets reports, if the lessee states that it does not fall within the definition of “foreign governmental entity” and that there is no separate need for a disclosure because no one further back in the chain of producing/transmitting the programming falls within the definition of “foreign governmental entity” and has provided an inducement to air the programming
Broadcasters also should consider adding language to airtime leases requiring the lessees to certify that they are not foreign governmental entities (or if they are, to include the required sponsorship identifications in the programming).
The FCC’s mandate could be read to reach all leases of program time – from the purchase of a Sunday-morning hour for a local church to air its services, to the Saturday afternoon block of program time bought by the local real estate company to promote the homes that they have listed to a lease of a digital multicast channel on your station. The only type of programming explicitly exempted is traditional “short-form” spot advertising.
These new rules impose a burden on broadcasters with respect to existing leases and should be considered in planning all future leases (or renewals of existing leases) for blocks of broadcast time. If you have not discussed these rules with your station’s own attorneys already and received specific guidance on the obligations that the new rules impose, and what purchasers of time may be covered by these requirements, you should do so immediately. The new requirements are in effect for newly-entered leases of airtime (including new renewals of existing leases), though broadcasters have six months to do their due diligence and otherwise come into compliance with the rules for programming aired under existing leases. So call your lawyers now to understand the important new rules now in effect!
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access). There are no additional costs for the call; the advice is free as part of your MAB membership.