When providing briefings on FCC issues at a number of broadcast conventions in the past few months, I find that broadcasters are most often surprised by the relatively new FCC rule that requires that they verify that any buyer of programming time on their station is not an agent of a foreign government.  This week, the burden that this rule (about which we wrote here) imposed on broadcasters was eased, when a Court overturned one aspect of the obligations imposed by the FCC.

The FCC rule, Section73.1212(j), is designed to ensure that all broadcast programming that is paid for or sponsored by a foreign government or one of its agents is specifically identified on the air as having foreign government backing.  The FCC required specific wording for on-air identifications for this programming paid for or produced by foreign governments or those that they finance.  In addition, broadcast stations are required to get assurances in writing from all parties who pay for programming on their stations that the programmer is not a foreign government or an agent of any such government.  The FCC rule went further, requiring that each station verify by checking FCC and DOJ databases that any programmer who certified that they were not a foreign government agent was in fact not a government agent.  It was that last requirement – the requirement to check DOJ and FCC databases – that the Court rejected this week.

The NAB and others had challenged the FCC’s requirement that broadcasters check these databases. Many broadcasters feared that such an obligation required that they check these databases whenever they sold program length time to anyone – even when it was clear that the programmer was not a foreign government agent.  So the church, real estate broker or local lawyer who bought airtime all would theoretically have to be run through these databases to assure the broadcaster that the buyer was not a foreign government agent.  The Court this week said that the obligation to take these proactive steps to verify that the program buyer is not a foreign agent was beyond the FCC’s authority. There is a statutory obligation for a broadcaster to require that programmers identify the true sponsor of a program, but the court said that once the broadcaster makes that inquiry of the program buyer and those involved in the supply chain for the program, there is no further obligation for the broadcaster to investigate the truth of what they are told.  The obligation to check the government databases, according to the Court, went too far.

Importantly, this decision does not alter the broadcaster’s obligation to have the programmer verify in writing that it is not a foreign agent and that no one in the program chain has received money from a foreign government to produce the program (or, if they have received foreign government money, the station must run the required on-air identification and place relevant information in its online public file).  But, once this Court’s decision is effective after the time for appeal has passed, broadcasters no longer need to verify the information that they are provided by vetting that information through checking the government databases.  So be sure that any agreement for the purchase of program time contains the required representation from the programmer – but soon (assuming that there is no successful appeal of the Court’s decision) there will be no need to verify that information in the government databases.  And check with your own legal counsel to verify compliance with all remaining requirements of this rule.