With so much focus on the upcoming regulatory fee deadline, broadcasters may well overlook another more imminent deadline – Thursday, September 15 is the deadline for broadcasters to have assured themselves that no buyer of program time on their stations is a foreign government or an agent of a foreign government. As we wrote here, the NAB successfully obtained a court decision eliminating the obligation for broadcasters to verify that no buyer of program time is listed in the Department of Justice’s Foreign Agents Registration Act database or on the FCC’s database of foreign government video programmers. However, the underlying obligation of licensees to obtain certifications from buyers of program time on their stations confirming that they are not a foreign government, or an agent of a foreign government, remains in place.
New agreements for the sale of program time should have, since March 15, contained representations from the program buyer that they are not a foreign government or a representative of a foreign government, and that no foreign government has paid the programmer to produce the programs or to place it on broadcast stations. Programming provided to the station for free with the expectation that it will be broadcast should also be confirmed as not coming from a foreign government or an agent of a foreign government. By this Thursday (September 15), stations need to verify that the providers of programming under agreements that were in existence before March 15 are not foreign governments or their agents.
For any programs that are provided by a foreign government or their agents, an enhanced sponsorship identification is required. For more on the specific definitions used in the FCC rules on this requirement (Section 73.1212(j)) can be found in our article here. One question that we have been asked repeatedly is whether network and barter programs, where the station gives a programmer advertising time in exchange for the programming, is covered by this requirement to obtain a certification. In its Order adopting the rule, the FCC stated that it considered barter programming to be programming bought by the station, not programming that the programmer pays for or donates for free in exchange for its airing. The FCC stated:
In barter-type arrangements, which can include network affiliation agreements, the program supplier provides the station its program, which the station purchases by allowing the program provider to use some or all of the station’s advertising airtime during the program. Thus, in barter arrangements the broadcaster effectively purchases programming in exchange for valuable consideration in the form of advertising time, thereby immunizing the exchange from the sponsorship identification requirement.
But other program providers who buy program time, or provide programming for free to a station, need to be verified immediately. For example, churches that buy an hour on Sunday morning, or a real estate agent that buys a half hour to show the homes that they have for sale, and other similar program buyers need to provide the station with certifications as to whether or not they are backed by a foreign government or foreign governmental agent. Contact your legal adviser to make sure that you have the information that you need to meet this upcoming deadline.
Addendum, September 14: We have been receiving many questions about this requirement and the associated public file obligations. Broadcasters do not need to place into the public file certifications obtained from buyers of program time confirming that they are not receiving backing from foreign governments. The public file only requires disclosure of information concerning purchases of program time by foreign governments or their agents.