Just about a year ago, the FCC issued an Order which, as we wrote here, contained some good news and some bad news for broadcasters. The good news was that the FCC came up with a relatively short form (far shorter than the multi-page form originally proposed) that broadcasters could use to assess whether a buyer of program time on the station was a foreign government or an agent a foreign government. This assessment of buyers of program time was required by FCC rules that became effective in 2022. In 2022, no form was provided, so broadcasters had to come up with their own certifications to get assurances that program time buyers were not foreign governments or their agents (and if they were, public file and other enhanced on-air disclosures were required). Last week, the FCC announced the effective date of a new form which, if signed by the broadcaster and the ad buyer, provides broadcasters with a safe harbor for assurances that the buyer is not a foreign agent (the forms are at Appendix C and D on pages 47 and 48 of the 2024 FCC Order).[1]
The bad news in the order from last year was that the FCC extended the requirement that this assessment be made from buyers of program time, to also include buyers of paid PSAs and other spots that are not for a commercial product or service (including political issue ads – but excepting candidate ads on the theory that those ads had already been vetted for foreign influence by the qualification of the candidate to run for office). While these rules were adopted a year ago, they have been on hold, until now, while a standard Paperwork Reduction Act review was completed (as required for all rules imposing new paperwork obligations on those subject to the rules).
That assessment has now been completed, resulting in the FCC’s Public Notice of the effective date of these rules. However, the FCC, perhaps recognizing that the rule was adopted a considerable period of time ago and was subject to much challenge (in fact, the NAB is still pursuing an appeal of the extension of these rules to paid PSAs, issue ads, and other spot time not for a commercial product or service, as the extension was done with no real notice that this change was being contemplated), has extended the compliance date for the use of the new form until December 8.
One unusual aspect of the FCC’s announcement last week of the effective date was that it ignored the FCC’s decision to extend these rules to spot time that is not for a commercial product or service. Last week’s announcement did not specifically state that those rules are now in effect, nor did it indicate that the application of the rule to spot time was on hold. While there had been informal advice from FCC staff that the extension of the obligation to spot time was subject to the Paperwork Reduction Act review (and the extension to spot time was specifically argued as an unnecessary new paperwork burden in pleadings filed with the Office of Management and Budget that conducts this review), there is nothing in writing that states that this new obligation is effective or that it is covered by the December 8 compliance deadline. We advise readers to consult with their own counsel for advice on how to handle this requirement (and to watch for the results of the NAB court appeal, which could be released at any time).
As we noted in prior articles (see, for instance, our article here), if the compliance requirement to get certifications from buyers of spot time becomes effective, all sorts of anomalous results will likely follow. State or federal agencies who buy time to publicize new government programs or to promote state tourism will be required to certify that they are not agents of foreign governments (and one would certainly hope that they are not!). Charities promoting big local events (e.g., the Race for the Cure or a religious revival meeting) will need to get certifications that their buyers are not foreign government agents. Significant paperwork will be required to try to ferret out the few foreign entities trying to use US airwaves to put forth their messages (and the few instances where foreign buyers usually are found are airlines or tourist board’s promoting vacation services). Absent any decision to revisit these burdensome rules as part of pending petitions for reconsideration or any relief from the appeals court, these rules may be here to stay. Do your research and stay alert for continued developments on the rollout of these new rules.
[1] Under the new rules, broadcasters can alternatively request that the buyer provide a screenshot of the appropriate pages of the Department of Justice’s Foreign Agents Registration Act database listing agents of foreign governments, showing that the ad buyer is not on the list. We do not expect that, for the routine buyer of program time (e.g., a church buying an hour on an AM station on Sunday morning for the broadcast of its service, or a real estate broker buying half an hour on a TV station to show homes for sale in the station’s service area), this option will be very popular. Broadcasters can also use their own form that captures the same information as the FCC’s form – but they are then operating without the assurances that all required information has been requested.