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Last week, the FCC released its long-expected decision on foreign government sponsored programming.  As you will recall, in 2022, the FCC adopted rules that required enhanced sponsorship identifications when program time bought (or, in the FCC’s words, “leased”) on broadcast stations was sponsored by a foreign government or an agent of a foreign government.  In addition, it required broadcasters to verify whether program buyers were agents of foreign governments, both by getting certifications from program buyers as to whether they represented foreign governments and by checking a Department of Justice database (compiled under the Foreign Agents Registration Act) to see if the buyer was registered as a foreign agent (see our articles here and here).  When a court threw out the requirement that broadcasters check those databases (see our article here), the FCC responded with a Second Notice of Proposed Rulemaking proposing that, instead of the FARA research, broadcasters needed to obtain a 13-paragraph certification as to whether any program buyer was a foreign government entity, and to include in the public file all such certifications, regardless of the response (as opposed to the existing requirement only obligating the broadcaster to put certifications in the public file when they indicated that the buyer was in fact an agent of a foreign government) (see our articles here and here on that proposal).  In the order released last week, the FCC decided not to require that enhanced certification (or the requirement to put negative responses into the public file), but instead came up with an unexpected addition to the requirement – that certifications must be obtained not just from buyers of program time, but also from buyers of advertising spot time, if the advertisers are not promoting commercial products and services. 

The order simplifies the certification requirement from the detailed multi-page certification in complex legalese that had been proposed in the Second Notice.  Instead, the FCC offers a relatively short certification (contained in Appendix D of the order) for program buyers to sign, with two basic questions – whether any foreign government entity ( a foreign government, a foreign political party, or an agent of one of those groups) is the purchaser of the programming; and whether the purchaser or any producer of the programming is being paid by a foreign government entity.  In the vast majority of cases, we expect that the answer to both questions will be “no.”  In the event that a programmer or program producer is an agent of a foreign government, then an additional question applies, requiring that the programmer provide the licensee appropriate sponsorship identification information for the enhanced on-air sponsorship identifications and for the required public file disclosure obligations.  Even using this FCC form questionnaire is not necessary, if the licensee can obtain that information using different words.  So, in at least some instances, broadcasters may be able to continue to use their existing certification language. Consult your attorney to see if the language you are using will comply with what the FCC will require when this order becomes effective. Continue Reading FCC Releases Decision on Broadcaster’s Obligations to Identify Foreign Government Sponsored Programming – There is Some Good News, and Some Bad News Affecting Issue Ads

In October 2022, I noted in an article that many broadcasters were totally confused by the FCC’s rules requiring that they seek certifications as to whether or not a foreign government is behind anyone buying programming time on a broadcast station.  In our 2022 article, we noted that, even though broadcasters did not fully understand the existing rule, the FCC was considering expanding that requirement to require use of a specific form to obtain these certifications from program buyers.  From notices filed with the FCC recently, it appears that there have been several meetings with the Commission and representatives of the broadcasting community about these proposed enhanced certifications, making it appear that the FCC is nearing a decision.  It appears that the new certifications, if adopted, will be very cumbersome, particularly for the unsophisticated program buyers who are likely to be many of the buyers of program time on small market stations.  These buyers are likely to find the certification process somewhat intimidating, and may even be scared off from buying any broadcast programming time as a result.  We thought we should take another look at what is already required and what is now being proposed.

Currently, the certifications that broadcasters must obtain from a program buyer must indicate that the programmer is not a “foreign government entity,” a term that includes any foreign government or foreign-government owned entity, an agent of a foreign government, or someone who has been paid by a foreign government to produce the program.  As we noted (see our articles here and here), the rules requiring these certifications went into effect on March 15, 2022 for any new agreements effective after that date, and September 15, 2022 for obtaining certifications from programmers who were already on the air as of March 15.  They cover not only those who buy program time on a broadcast station, but also those that provide program time free to broadcasters with the understanding that the programming will be aired.  The certifications do not cover programming that the broadcaster buys (either for money or through barter – including by giving the programming supplier advertising time that the programmer can resell in exchange for the programming).  And they are not required for spot advertising buys. Continue Reading FCC Still Reviewing Plan to Expand Broadcasters’ Obligations to Obtain Certifications from All Program Buyers on their Connection to Foreign Governments – What is Being Proposed? 

The new year brings a series of noteworthy regulatory deadlines for broadcasters in January.  As always, broadcasters should consult with their own attorneys and advisors to make sure that they are aware of and ready to act on any other deadlines that are not listed below.

Congress still has not passed budget bills for the fiscal year that started on October 1, and some of the “continuing resolutions” to fund the federal government at last year’s levels run out on January 19, with the FCC’s budget set to expire on February 2.  Thus, at least a partial government shutdown may well occur if Congress fails to act this month.  As we previously discussed here and here, if a government shutdown does occur, some government agencies may have to cease all but critical functions if they do not have any residual funds to continue operations.  If no funding is approved, the FCC will announce how any shutdown will affect it, including whether it has any residual funds to keep operating beyond any general funding deadline.  Watch Congressional actions and any FCC announcements to see how any deadlines that apply to your station will be affected by the funding deadline.

With those concerns in mind, let’s look at some of the specific dates and deadlines for broadcasters in January.  Beginning January 1, television stations affiliated with the Top 4 Networks and operating in Nielsen Designated Market Areas (DMAs) 91 through 100 will be added to the list of markets that are subject to the FCC’s audio description rules.  The DMAs where the rules become effective on January 1 are:  El Paso (Las Cruces), Paducah-Cape Girardeau-Harrisburg, Cedar Rapids-Waterloo-Iowa City & Dubuque, Burlington-Plattsburgh, Baton Rouge, Jackson, MS, Fort-Smith-Fayetteville-Springdale-Rogers, Boise, South Bend-Elkhart, and Myrtle Beach-Florence – in addition to Chattanooga and Charleston, SC, which were previously in DMAs 92 and 91, respectively, but are now in DMAs 84 and 88.  We reported here on the FCC’s recent reminder that these new markets will be subject to the audio description requirements as of January 1.  TV stations associated with the Top 4 networks in these markets are required to provide audio description for 50 hours of programming per calendar quarter, either during prime time or in children’s programming, and 37.5 additional hours of audio description per calendar quarter between 6 a.m. and 11:59 p.m. local time, on each programming stream that carries one of the top four commercial television broadcast networks (ABC, CBS, FOX and NBC). Continue Reading January Regulatory Dates for Broadcasters – Expansion of Audio Description Requirements, Music Royalty Cost of Living Increases, Quarterly Issues/Programs Lists, Childrens Television Programming Reporting, Political Windows, and More

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

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Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The Senate Commerce Committee announced that it will hold a hearing on February 14 on the long-delayed nomination of Gigi
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Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • By a Public Notice issued on December 15, the FCC’s Public Safety and Homeland Security Bureau told broadcasters to submit

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In speaking to many broadcast groups around the country in the last few months, I have found that many broadcasters are totally confused by the FCC’s rules requiring that they seek certifications from anyone buying programming time on their stations (or providing programming for free in exchange for that programming being broadcast on the station).  These certifications must indicate that the programmer  is not a “foreign government entity,” a term that includes any foreign government or foreign-government owned entity, an agent of a foreign government, or someone who has been paid by a foreign government to produce the program.  As we noted (see our articles here and here), the rules requiring these certifications went into effect on March 15, 2022 for any new agreements effective after that date, and September 15, 2022 for obtaining certifications from programmers who were already on the air as of March 15.  Now, the FCC has asked in a Second Notice of Proposed Rulemaking whether it should expand these obligations to identify foreign government-backed programming.  In addition, a bill has been introduced in Congress that would authorize the FCC to impose the obligation it attempted to impose on broadcasters initially – that they check databases maintained by the Department of Justice (the Foreign Agents Registration Act database) and by the FCC to confirm the accuracy of the certifications obtained from programmers as to whether or not they are agents of foreign governments (see our article here on the Court decision rejecting the requirement that broadcasters check these databases).

When I am speaking at broadcast association meetings across the country, I am almost always asked why the FCC is seeking this information.  The FCC decided that it had to act in this area when, in a couple of high-profile cases in major markets, program time was being purchased by entities that represent foreign governments – with Russian and Chinese news and information programming being of the most concern.  When these instances were highlighted by other US government agencies and through political complaints, the FCC felt that it had to act.  I don’t think that many broadcasters would have concerns if the rules were limited to situations where a foreign government is in fact buying program time or doing a time brokerage agreement, with the intent of airing its slanted news to US citizens, with such programming being required to be identified to the public as being sponsored by an entity related to a foreign government.  But the concern that many have raised is that the FCC’s requirements impose significant burdens on broadcasters and programmers even in instances where there is no doubt that companies buying time on broadcast stations are not posing any threat to US interests.
Continue Reading FCC Seeks Comments on Tighter Requirements for Broadcasters to Identify Foreign Government Sponsored Programming – And A Bill Introduced in Congress – What Does It Mean for Broadcasters?