Rule2021-12207
Sponsorship Identification Requirements for Foreign Government-Provided Programming
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 17, 2021
Effective
July 19, 2021
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Federal Communications Commission (Commission) modifies its rules to adopt specific disclosure requirements for broadcast programming that is sponsored, paid for, or provided by a foreign government or its representative pursuant to leasing agreements.
Full Text
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<title>Federal Register, Volume 86 Issue 115 (Thursday, June 17, 2021)</title>
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[Federal Register Volume 86, Number 115 (Thursday, June 17, 2021)]
[Rules and Regulations]
[Pages 32221-32239]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-12207]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MB Docket No. 20-299; FCC 21-42; FR ID 26887]
Sponsorship Identification Requirements for Foreign Government-
Provided Programming
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) modifies its rules to adopt specific disclosure
requirements for broadcast programming that is sponsored, paid for, or
provided by a foreign government or its representative pursuant to
leasing agreements.
DATES: Effective July 19, 2021. Compliance with Sec. 73.1212(j) and
(k) will not be required until the Commission publishes a document in
the Federal Register announcing the compliance date.
FOR FURTHER INFORMATION CONTACT: Radhika Karmarkar, Media Bureau,
Industry Analysis Division, <a href="/cdn-cgi/l/email-protection#683a090c000103094623091a05091a03091a280e0b0b460f071e"><span class="__cf_email__" data-cfemail="633102070b0a08024d2802110e0211080211230500004d040c15">[email protected]</span></a>, (202) 418-1523.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order (Order), FCC 21-42, in MB Docket No. 20-299, adopted on April
22, 2021, and released on April 22, 2021. The complete text of this
document is available electronically via the search function on the
FCC's Electronic Document Management System (EDOCS) web page at <a href="https://apps.fcc.gov/edocs_public/">https://apps.fcc.gov/edocs_public/</a> (<a href="https://apps.fcc.gov/edocs_public/">https://apps.fcc.gov/edocs_public/</a>). To
request materials in accessible formats for people with disabilities
(braille, large print, electronic files, audio format), send an email
to <a href="/cdn-cgi/l/email-protection#65030606505551250306064b020a13"><span class="__cf_email__" data-cfemail="e2848181d7d2d6a2848181cc858d94">[email protected]</span></a> (mail to: <a href="/cdn-cgi/l/email-protection#4b2d28287e7b7f0b2d2828652c243d"><span class="__cf_email__" data-cfemail="0c6a6f6f393c384c6a6f6f226b637a">[email protected]</span></a>) or call the FCC's
[[Page 32222]]
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice),
(202) 418-0432 (TTY).
Synopsis
1. Introduction: For over 60 years, the Commission's sponsorship
identification rules have required that disclosures be made on-air when
a station has been compensated for broadcasting particular material.
Reports regarding foreign governmental entities' increased use of
leasing agreements to broadcast programming without disclosing the
source thereof, however, persuade us that more is required to ensure
transparency on the airwaves. By this Order, the Commission seeks to
address circumstances in which a foreign governmental entity, pursuant
to a lease of airtime, is responsible for programming, in whole or in
part, on a U.S. broadcast station. In this Order, the use of the term
``foreign government-provided programming'' refers to all programming
that is provided by an entity or individual that falls into one of the
four categories discussed below. In turn, the phrase ``provided by''
when used in relation to ``foreign government programming'' covers both
the broadcast of programming in exchange for consideration and
furnishing of any ``political program or any program involving the
discussion of a controversial issue'' for free as an inducement to
broadcast the programming. Although under U.S. law foreign governments
and their representatives are restricted from holding a broadcast
license directly, there is no limitation on their ability to enter into
a contract with the licensee of a station to air programming of its
choosing or to lease the entire capacity of a radio or television
station. Nor does the Commission prohibit such arrangements going
forward. Rather, in such instances, the rules the Commission adopts in
this document will require that the programming aired pursuant to such
an agreement contain a clear, standardized disclosure statement
indicating to the listener or viewer that the material has been
sponsored, paid for, or furnished by a foreign governmental entity and
clearly indicate the foreign country involved.
2. The foreign sponsorship identification rules the Commission
adopts in this Order seek to eliminate any potential ambiguity to the
viewer or listener regarding the source of programming provided from
foreign governmental entities. Based upon comments received in response
to the notice of proposed rulemaking (NPRM), 85 FR 74955, Nov. 24,
2020, and as detailed further below, the Commission amends Sec.
73.1212 of the Commission's rules to require a specific disclosure at
the time of broadcast if material aired pursuant to the lease of time
on the station has been sponsored, paid for, or furnished by a foreign
governmental entity that indicates the specific entity and country
involved. In so doing, the Commission will increase transparency and
ensure that audiences of broadcast stations are aware when a foreign
government, or its representatives, are seeking to persuade the
American public. Through the public filing requirements associated with
disclosures, the Commission will also enable interested parties to
monitor the extent of such efforts to persuade the American public.
3. The new rules seek to address the primary means identified in
the record by which foreign governmental entities are accessing U.S.
airwaves to persuade the American public without adequate disclosure of
the true sponsor, namely the lease of time to air programming on a U.S.
licensed broadcast station. In focusing its disclosure requirement on
such situations, the Commission seeks to address an important issue of
public concern while going no further than necessary, thus balancing
considerations of the First Amendment with the need for consumers to be
sufficiently informed as to the origin of material broadcast on
stations licensed on their behalf in the public interest. Further, the
Commission's approach incorporates existing provisions of and
definitions contained in the Foreign Agents Registration Act (FARA) (22
U.S.C. 611) and the Communications Act of 1934, as amended, so as to
minimize the burden on broadcasters as they determine whether the
programming is from a foreign governmental entity. In addition, the
Commission discusses the steps that broadcasters must take to satisfy
the statutory ``reasonable diligence'' standard in determining whether
a foreign governmental entity is the source of programming provided
over their stations.
4. In this manner, the Commission refines its rules to further
ensure that the public is fully informed on the source of programming
consumed. The Commission finds it is critical that the American public
be aware when a foreign government has sponsored, paid for, or, in the
case of political programs or programs involving the discussion of a
controversial issue, furnished the programming for free as an
inducement to air the material, particularly given what seems to be an
increase in the dissemination of programming in the United States by
foreign governments and their representatives.
5. Background: The principle that the public has a right to know
the identity of those that solicit their support is a fundamental and
long-standing tenet of broadcasting. Congress and the Commission have
sought to ensure that the public is informed when airtime has been
purchased in an effort to persuade audiences, finding it essential to
ensure that audiences can distinguish between paid content and material
chosen by the broadcaster itself. Accordingly, beginning with the Radio
Act of 1927, broadcast stations have been required to announce the name
of any ``person, firm, company, or corporation'' that has paid
``valuable consideration'' either ``directly or indirectly'' to the
station at the time of broadcasting any programming for which such
consideration has been given. With the creation of the Federal
Communications Commission and the adoption of the Communications Act of
1934 (the Act), this disclosure requirement was incorporated almost
verbatim into section 317 of the Act. Over the years, various
amendments to the rules, decisions by the Commission, and a 1960
amendment to section 317 of the Act have continued to underscore the
need for transparency and disclosure to the public about the true
identity of a program's sponsor.
6. The Commission last implemented a major change to its
sponsorship identification rules in 1963 when it adopted rules
implementing Congress's 1960 amendments to the Act. The NPRM contained
a thorough history of the background of the Commission's sponsorship
identification rules. The sponsorship identification rules largely
tracked the provisions of section 317 of the Act and make up the
current Sec. 73.1212 of the Commission's rules. As the NPRM noted,
however, even with these rules in place there appear to be instances
where foreign governments pay for the airing of programming, or provide
it to broadcast stations free of charge, and the programming does not
contain a clear indication, if any indication at all, to the listener
or viewer that a foreign government has paid for or provided the
programming's content. Given the passage of nearly 60 years since the
sponsorship identification rules were last updated and growing concerns
about foreign government-provided programming, the Commission
determined last year that there was a further need to review the
sponsorship identification rules to ensure that, consistent with its
statutory mandate, foreign government program
[[Page 32223]]
sponsorship over the airwaves is evident to the American public.
7. Significantly, the Commission's current sponsorship
identification rules do not require a station to determine or disclose
whether the source of its programming is in fact a foreign government,
registered foreign agent, or foreign political party (what the
Commission refers to as a foreign governmental entity). As the NPRM
notes, in many instances a foreign government, foreign agent, or
foreign political party providing programming to licensees may not be
immediately identifiable as such. In other instances, the linkage
between the foreign governmental entity and the entity providing the
programming may be deliberately attenuated in an effort to obfuscate
the true source of the programming. Although current rules require the
disclosure of the sponsor's name, the relationship of that sponsor to a
foreign country is not required as part of the current disclosure.
8. Consequently, to ensure that the American public can better
assess the programming that is delivered over the airwaves, the
Commission found that there is a need to identify instances where
foreign governmental entities are involved in the provision of
broadcast programming. To that end, the NPRM proposed to adopt specific
disclosure requirements for broadcast programming to inform the public
when programming has been paid for, or provided by, a foreign
governmental entity and to identify the country involved. Specifically,
the NPRM proposed that when a foreign governmental entity has paid a
radio or television station, directly or indirectly, to air material,
or if the programming was provided to the station free of charge by
such an entity as an inducement to broadcast the material, the station,
at the time of the broadcast, shall include a specified disclosure
indicating the name of the foreign governmental entity, as well as the
related country.
9. In defining ``foreign governmental entity,'' the NPRM relied
directly on parts of the FARA statute (specifically the definitions of
a ``government of a foreign country,'' ``foreign political party,'' and
``agents of foreign principals''), which covers entities and
individuals whose activities the United States Department of Justice
(Department of Justice or DOJ) has identified as requiring disclosure
because their activities are potentially intended to influence American
public opinion, policy, and law. In addition, the NPRM proposed to
include ``United States-based foreign media outlets,'' as defined by
the Communications Act. Under the proposal, any programming provided by
a ``foreign governmental entity'' would be considered a ``political
program'' under section 317(a)(2) of the Act, and thus require
identification of the sponsor of particular broadcast programing, even
if the only inducement to air the programming was the provision of the
programming itself. The NPRM further explored the ``reasonable
diligence'' standard that broadcasters must employ pursuant to their
statutory (47 U.S.C. 317 (c)) and regulatory (47 CFR 73.1212(b) and
(e)) requirements to determine whether its programming was provided by
a foreign governmental entity.
10. The NPRM proposed that the disclosure requirements should apply
in the context of time brokerage agreements (TBAs) and local marketing
agreements (LMAs). Moreover, the NPRM proposed to apply the new rules
to entities authorized pursuant to section 325(c) to produce programing
in the United States and transmit it to a non-U.S. licensed station in
a foreign country for broadcast back into the United States. Also, the
NPRM proposed that the disclosure requirements would apply equally to
any programming transmitted on a radio or television stations'
multicast streams. Finally, in addition to specifying the
characteristics of the proposed disclosures on television and radio,
the NPRM proposed that stations place a copy of the announcement in
their online public inspection file (OPIF).
11. A total of seven commenters filed comments and reply comments
in response to the NPRM. The commenters generally support the
Commission's goal of identifying foreign sponsorship of programming.
Commenters assert, however, that the Commission must address how
current regulations are inadequate before adopting new rules, and
several commenters suggest ways to narrow the proposed scope of the
rules to more directly address the programming that is of most concern,
as discussed further below.
12. Discussion: For the reasons discussed below, the Commission
adopts the rules proposed in the NPRM with modifications to address
more precisely the primary method by which foreign governmental
entities appear to be gaining carriage for their programming on U.S.-
licensed broadcast stations without disclosing the origin of such
programming, namely through leasing agreements with such stations. By
narrowly focusing its requirements, the Commission seeks to minimize
the burden of compliance on licensees, including those public
television and radio stations that carry programming from entities that
depend upon tax credits, access to international locations, and
historical or archival footage from foreign governmental sources in
producing their programming. The Commission further notes that such
tailoring is in keeping with the First Amendment by focusing its rules
narrowly on the area of potential harm.
13. Specifically, as discussed below, the new rules require foreign
sponsorship identification for programming content aired on a station
pursuant to a lease of airtime if the direct or indirect provider of
the programming qualifies as a ``foreign governmental entity.'' In the
first section below, the Commission analyzes which entities or
individuals meet that definition and find that they include governments
of foreign countries, foreign political parties, certain agents of
foreign principals, and U.S.-based foreign media outlets. Next, the
Commission discusses the scope of the foreign sponsorship
identification rules, explaining why and how the Commission narrows the
scope of the NPRM's proposed requirements to focus on programming aired
on U.S. broadcast stations pursuant to an agreement for the lease of
time. The Commission then discusses the scope of the reasonable
diligence obligation that broadcast licensees must satisfy to determine
if its lessee is a foreign governmental entity such that disclosures
are necessary. Next, the Commission discusses the content and frequency
requirements for the mandated disclosures that will ensure the
identification of foreign government-provided programming is conveyed
effectively to the public. As the Commission makes clear in that
section, the rules also require quarterly filings of copies of the
disclosures, as well as the name of the program to which any
disclosures are appended, in stations' OPIF. Then, the Commission
concludes that its foreign sponsorship identification rules apply
equally to any programming broadcast pursuant to a section 325(c)
permit. Finally, the Commission concludes that its foreign sponsorship
identification rules satisfy the First Amendment and provide a cost-
benefit analysis of those new rules.
14. Entities or Individuals Whose Involvement in the Provision of
Programming Triggers a Disclosure. The Commission requires that
programming aired on a station pursuant to a lease of airtime have a
foreign sponsorship identification if the entity who has directly or
indirectly provided the programming qualifies as a foreign governmental
entity as defined herein. Specifically, a ``foreign governmental
[[Page 32224]]
entity'' is defined as an entity included in one of the following
categories:
(1) A ``government of a foreign country'' as defined by FARA (22
U.S.C. 611(e));
(2) A ``foreign political party'' as defined by FARA (22 U.S.C.
611(f));
(3) An individual or entity registered as an ``agent of a foreign
principal,'' under section 611(c) of FARA (22 U.S.C. 611(c)), whose
``foreign principal'' is a ``government of a foreign country,'' a
``foreign political party,'' or is directly or indirectly operated,
supervised, directed, owned, controlled, financed, or subsidized by a
``government of a foreign country'' or by a ``foreign political party''
as defined by FARA, and that is acting in its capacity as an agent of
such ``foreign principal;''
(4) An entity meeting the definition of a ``U.S.-based foreign
media outlet'' pursuant to section 722 of the Act that has filed a
report with the Commission (47 U.S.C. 624).
The adopted definition is largely consistent with the definition
proposed in the NPRM except for the exclusion of foreign missions for
the reasons discussed below.
15. As discussed in the NPRM, in establishing these categories to
define covered foreign governmental entities that will trigger the
disclosure requirement, the Commission relies on existing definitions,
statutes, or determinations by the U.S. Government as to when an entity
or individual is a foreign government, a foreign political party, or
acting in the United States as an agent on behalf of a foreign
government or foreign political party. Relying on these sources allows
us to draw on the substantial experience and authority in such matters
that already exists within the Federal Government and avoids involving
the Commission, or the broadcaster, in subjective determinations
regarding who qualifies as a foreign governmental entity.
16. FARA. In particular, the Commission finds that reliance on both
the definitions contained in FARA and the list of agents registered
pursuant to that act is appropriate. As discussed in the NRPM, this
long-standing statute was designed specifically to identify those
foreign entities or individuals that Congress has determined should be
known to the U.S. Government and the American public when they are
seeking to influence American public opinion, policy, and laws. The
Commission notes that no commenters object to the its proposed use of
the definitions set forth in FARA or the list of foreign agents
registered pursuant to that statute as the primary basis for its
foreign sponsorship identification rules. Accordingly, the Commission
finds that including ``government of a foreign country'' and ``foreign
political party,'' as defined by FARA, within the group of entities and
individuals that trigger its foreign sponsorship identification rules
is appropriate given its primary goal of ensuring that foreign
government-provided programming is properly disclosed to the public.
Rather than seeking to craft its own definitions, the Commission finds
it more appropriate to turn to a definition of ``foreign government''
and ``foreign political party'' contained in a pre-existing statute
designed to promote transparency about foreign governmental activity in
the United States. Similarly, including FARA-registered ``agents of
foreign principals'' who are defined by their engagement in certain
activities in the United States on behalf of foreign interests furthers
the Commission's goal of increasing transparency when such agents may
be seeking to persuade the audiences of broadcast stations.
17. The Commission notes that FARA generally requires an ``agent of
foreign principal'' undertaking certain activities in the United States
(such as, political activities or acting in the role of public
relations counsel, publicity agent, or political consultant) on behalf
of a foreign principal to register with the Department of Justice.
Section 611(b)(1) of FARA states that the term ``foreign principal''
includes the ``government of a foreign country'' and a ``foreign
political party'' (22 U.S.C. 611(b)(1)). For purposes of its foreign
sponsorship identification rules, the Commission includes FARA agents
whose foreign principal is either a ``government of a foreign
country,'' a ``foreign political party,'' or is directly or indirectly
operated, supervised, directed, owned, controlled, financed, or
subsidized by a ``government of a foreign country'' or by a ``foreign
political party'' as those terms are defined in sections 611(e) and (f)
of FARA respectively (22 U.S.C. 611(e), (f)). As stated in the NPRM, to
the extent that an agent of a foreign principal, whose ``foreign
principal'' is either a ``government of a foreign country'' or a
``foreign political party'' is providing programming to U.S. broadcast
stations in its capacity as an agent to that principal, it is
reasonable that the public should be made aware of that fact. The
Commission also clarifies, however, that the proposed disclosure is
required not only when programming is provided by an ``agent of a
foreign principal'' whose foreign principal is a government of a
foreign country or a foreign political party, but also when the foreign
principal is directly or indirectly operated, supervised, directed,
owned, controlled, financed, or subsidized by a government of a foreign
country or by a foreign political party. This clarification to the
original proposal will ensure that the foreign sponsorship
identification rules cannot be circumvented by the existence or
creation of additional corporate and/or ownership layers between the
entity acting as a foreign principal and the government of a foreign
country or foreign political party. This information is readily
ascertainable by those who examine the FARA database.
18. The Commission recognizes that a given entity may be registered
as an agent for multiple ``foreign principals'' or for a ``foreign
principal'' other than a ``government of a foreign country'' or a
``foreign political party.'' The Commission emphasizes, however, that
its foreign sponsorship identification rules apply only when the FARA
agent is acting in its capacity as a registered agent of a principal
that is a ``government of a foreign country,'' a ``foreign political
party,'' or is directly or indirectly operated, supervised, directed,
owned, controlled, financed, or subsidized by a government of a foreign
country or by a foreign political party.
19. U.S.-Based Foreign Media Outlet. In addition to drawing on
FARA-based definitions and registrations and consistent with the NPRM,
the Commission concludes that its foreign governmental entity
definition should also extend to any entity or individual subject to
section 722 of the Act that has filed a report with the Commission.
Section 722 extends to any U.S.-based foreign media outlet that: (a)
Produces or distributes video programming that is transmitted, or
intended for transmission, by a multichannel video programming
distributor (MVPD) to consumers in the United States and (b) would be
an agent of a ``foreign principal'' but for an exemption in FARA. The
Commission notes that Section 722 provides that the term ``foreign
principal'' has the meaning given such term in section 611(b)(1) of
FARA, which limits the scope of the definition of ``foreign principal''
to ``a government of a foreign country'' and a ``foreign political
party.'' The Commission incorporates this limitation from section 722
of the Act into its foreign sponsorship identification rules to include
both a ``government of a foreign country'' and ``foreign political
party,'' as those terms are defined by FARA, within its definition of
``foreign governmental entity.'' Although the
[[Page 32225]]
Commission could clarify--as the Commission has done with respect to
foreign agents--that the disclosure requirement also applies when an
outlet's foreign principal is directly or indirectly operated,
supervised, directed, owned, controlled, financed, or subsidized by a
government of a foreign country or by a foreign political party, the
Commission notes that such a clarification would accomplish nothing as,
pursuant to the National Defense Authorization Act (NDAA), only
entities whose foreign principals are a government of a foreign country
or a foreign political party are required to report as U.S.-based
foreign media outlets.
20. The Commission recognizes that the term ``U.S.-based foreign
media outlet'' refers to an entity whose programming is either
transmitted or intended for transmission by an MVPD, rather than by a
broadcaster. But the Commission notes that there is no prohibition on
such video programming also being transmitted by a broadcast television
station, and it seems likely that an entity that is providing video
programming to cable operators or direct broadcast satellite television
providers might also seek to air such programming on broadcast
stations. Hence, the Commission believes it is appropriate to include
``U.S.-based foreign media outlets'' within the ambit of its proposal
when the programming provided by such entities is aired by broadcast
stations. No commenter opposed this proposal in response to the NPRM.
21. Foreign Missions. While the NPRM proposed to include ``foreign
missions,'' as designated pursuant to the Foreign Missions Act, within
the Commission's definition of foreign governmental entities that
trigger foreign sponsorship identification, commenters have persuaded
us otherwise. In particular, American Public Television Stations (APTS)
and the Public Broadcasting Service (PBS) (referenced collectively
herein as APTS) expressed concern with the potential difficulty of
discerning whether an entity is considered a ``foreign mission'' under
the Foreign Missions Act. APTS noted that there is no single source
identifying all foreign missions analogous to those that exist for FARA
registrants and U.S.-based foreign media outlets. The Commission agrees
with commenters that the lack of a single source identifying all
foreign missions creates an additional burden for licensees, as such
entities cannot be as readily and consistently identified as FARA
registrants and U.S.-based foreign media outlets.
22. In addition, the Commission notes that, as discussed in the
NPRM, most ``foreign missions'' are foreign embassies and consular
offices. The primary purpose of the Foreign Missions Act is to confer
upon such missions certain benefits, privileges, and immunities, while
also requiring their observance of corresponding obligations in
accordance with international law and principles of reciprocity. Other
types of non-entities that are substantially owned or effectively
controlled by a foreign government are from time to time designated as
``foreign missions'' at the discretion of the Secretary of State. By
comparison the FARA statute is specifically designed to identify those
entities and individuals whose activities should be disclosed because
their activities are potentially intended to influence American public
opinion, policy, and law. Based on the concerns raised by APTS and its
own further review of the intent behind the statute, the Commission
finds reliance on the Foreign Missions Act to be inappropriate and
unnecessary for its intended purpose.
23. Other Potential Sources. In addition, the Commission declines
to adopt APTS's suggestion that the list of FARA registrants included
in the definition of foreign governmental entities be filtered through
the United States Treasury Department's Office of Foreign Assets
Control (OFAC) list of active U.S. sanctions. APTS asserts that its
proposal would narrow the list of entities who qualify as a ``foreign
governmental entity'' by linking this definition to a list of carefully
pre-determined countries whose interests are directly at odds with the
United States. The Commission declines to adopt this proposal. First,
doing so would seem to involve even more work for licensees, as it
would require them to consult the OFAC list in addition to the FARA
list. Second, and most importantly, the Commission finds the basis for
compiling the OFAC list to be inconsistent with its purposes here. The
Commission's goal in requiring additional disclosure by foreign
governmental entities is not premised on distinctions between countries
that may or may not be subject to the United States sanctions. Rather,
the Commission seeks to provide the American public with greater
transparency about programming provided by any foreign government,
consistent with the requirements of section 317 of the Act. In this
regard, the Commission finds that FARA, with its associated definitions
and reporting requirements premised on promoting transparency with
respect to foreign influence within the United States, is better
aligned with the goals of the instant proceeding than the OFAC list. As
the Department of Justice has explained when discussing FARA, the
government's concern is not the content of the speech but providing
transparency about the true identity of the speaker.
24. Scope of Foreign Programming that Requires a Disclosure. While
the Commission tentatively concluded in the NPRM that its proposed
foreign sponsorship disclosure rules should apply in any circumstances
in which a foreign governmental entity directly or indirectly provides
material for broadcast or furnishes material to a station free of
charge (or at nominal cost) as an inducement to broadcast such
material, the Commission now narrows its focus to address specifically
those circumstances in which a foreign governmental entity is
programming a U.S. broadcast station pursuant to the lease of airtime.
That is, for the reasons discussed below, the Commission will require a
specific disclosure at the time of broadcast if material aired pursuant
to the lease of time on the station has been sponsored, paid for, or,
in the case of political program or any program involving the
discussion of a controversial issue, if it has been furnished for free
as an inducement to air by a foreign governmental entity. While the
Commission focuses in this Order on the identification of programming
sponsored by foreign governmental entities aired through a lease of
time, the Commission reiterates that its existing sponsorship
identification rules, of course, continue to apply even outside the
specific context described herein. As explained below, leasing
agreements potentially subject to the rules include any arrangement in
which a licensee makes a block of broadcast time on its station
available to another party in return for some form of compensation.
25. Programming Aired Pursuant to a Lease of Time. Based on the
record before us, the Commission agrees with National Public Radio and
find that focusing on the airing of programming on U.S. broadcast
stations pursuant to leasing agreements will address the primary
present concern with foreign governmental actors gaining access to
American airwaves without disclosing the programming's origin to the
public. To date, it appears that the reported instances of undisclosed
foreign government programming aired on broadcast stations have
involved lease agreements between a licensee and
[[Page 32226]]
other entities. The record indicates that such contractual arrangements
present the most prevalent instances of undisclosed foreign government
programming to date. It also appears that it is through such
arrangements that foreign governmental entities have commonly aired
programming on U.S. broadcast stations, whether directly or indirectly,
without necessarily disclosing the origin of the programming.
Accordingly, the Commission believes that the foreign governmental
source of this programming should be disclosed in such circumstances.
26. Moreover, the Commission's action will serve to ensure greater
transparency to the public, and prevent foreign governments and their
representatives, which are barred from owning a U.S. broadcast license,
from leasing time on a station unbeknownst to the public or the
Commission. Notably, Section 310(a) of the Act outright bars ``any
foreign government or the representative thereof'' from holding a
broadcast license. In addition, Section 310(b) limits the interest that
a foreign corporation or individual can hold in a U.S. broadcast
license, either directly or indirectly. While the Commission has
revised its rules in recent years to permit a greater degree of
ownership in U.S. broadcast stations by non-governmental foreign
entities or individuals, acquisition of such interests requires
Commission approval following proper consideration and public review
and may also be subject to prior review and consideration by the
relevant executive branch agencies. Despite these longstanding
restrictions, and particularly the complete prohibition on a foreign
government or its representatives' holding a U.S. broadcast license,
some foreign governmental actors or their agents appear nonetheless to
be programming stations that they otherwise would not be able to own,
as detailed in the NPRM. When they do so, the American public and the
Commission may not be aware that a foreign governmental entity has
leased the time on the station and is programming the station.
27. As proposed in the NPRM, the disclosure requirements the
Commission adopts in this document apply to leasing agreements,
regardless of what those agreements are called, how they are styled,
and whether they are reduced to writing. The Commission recognizes that
leasing agreements within the broadcast industry may be known by
different designations. The terms time brokerage agreement (TBA) and
local marketing agreement (LMA) are used interchangeably to describe
contractual arrangements whereby a party other than the licensee, i.e.,
a brokering party, programs time on a broadcast station, oftentimes
also selling the advertising during such time and retaining the
proceeds. Such leasing agreements may be for either discrete blocks of
time (for example, two hours every day from 4 p.m. to 6 p.m.) or for
the complete broadcast capacity of the station (i.e., 24 hours a day,
seven days a week). The agreements can be for the duration of a single
day or for a term of years. Regardless of the title, terms, or duration
of such an agreement, the purpose of such a contractual agreement is to
give one party--the brokering party or programmer--the right and
obligation to program the station licensed to the other party--the
licensee or broadcaster. In this manner, the programmer is able to
program a radio or television station that it does not own or hold the
license to operate. A ``time brokerage agreement,'' also known as a
``local marketing agreement'' or ``LMA,'' is the sale by a licensee of
discrete blocks of time to a ``broker'' that supplies the programming
to fill that time and sells the commercial spot announcements in it.
28. For the purposes of applying the foreign sponsorship disclosure
requirement, a lease constitutes any agreement in which a licensee
makes a discrete block of broadcast time on its station available to be
programmed by another party in return for some form of compensation.
Thus, a licensee makes broadcast time available for purposes of the
rule any time the licensee permits the airing on its station of
programming either provided, or selected, by the programmer in return
for some form of compensation. In describing a lease of time, however,
the Commission does not mean to suggest that traditional, short-form
advertising time constitutes a lease of airtime for these purposes. The
Commission notes that such advertisements, whether they appear in
programming aired by the licensee or provided by a third-party
programmer pursuant to a lease, remain subject to the Commission's
existing sponsorship identification rules under Sec. 73.1212(f) and
must contain a clear indication of the sponsor of the advertisement.
The Commission's action in this document is focused on agreements by
which a third party controls and programs a discrete block of time on a
broadcast station. Ultimately, the Commission believes that requiring a
disclosure to inform the audience of the source of the programming
whenever a foreign governmental entity provides programming to a
station for broadcast pursuant to the lease of time is wholly
consistent with sections 317(a)(1) and (2) of the Act.
29. The Commission finds that its focus on situations where there
are leasing agreements between a station and a third party will narrow
the application of the disclosure rules appropriately, and ensure that
the new disclosure obligations do not extend to situations where there
is no evidence of foreign government sponsored programming. For
example, the record does not demonstrate that advertisements; archival,
stock, or supplemental video footage; or preferential access to filming
locations are a significant source of unidentified foreign sponsored
programming. In addition, given limitations on the ability of
noncommercial educational (NCE) stations to engage in leasing
arrangements, the Commission expects that NCE stations will rarely, if
ever, face the need to address the foreign sponsorship disclosure
rules, largely assuaging the concerns of NCE commenters. Therefore, the
Commission finds that limiting the application of its disclosure
requirement to the context of leasing agreements obviates a number of
issues and suggestions put forth by commenters concerned that the
Commission would inadvertently sweep in additional programming that
does not carry the same concerns with foreign influence as the
unidentified lease of programming time.
30. Programming Aired in Exchange for Consideration Under 317(a)(1)
of the Act. As discussed in the NPRM, section 317(a)(1) of the Act
requires the licensee of a broadcast station to disclose at the time of
broadcast if it has received any form of payment or consideration,
either directly or indirectly in exchange for the broadcast of
programming. While there is no minimum level of ``consideration''
required to trigger the disclosure requirement under this section, the
statute does permit the exclusion of services or property furnished
without charge or at nominal charge in certain circumstances. One
notable exception to the exclusion, however, is the provision of
certain material furnished free of charge or at nominal cost as an
inducement to air the program and that is related to any political
program or program involving the discussion of any controversial issue,
as discussed further below. Thus, consistent with the statute and
current sponsorship identification rules, the foreign sponsorship
identification rules the Commission adopts in this document will be
triggered if any money, service, or other valuable consideration is
directly or indirectly paid or promised to, or
[[Page 32227]]
charged or accepted by a broadcast station in the context of a lease of
broadcast time in exchange for the airing of material provided by a
foreign governmental entity.
31. While the Commission expects that such consideration received
by the station directly will be apparent from the terms and exercise of
any lease agreement, as discussed below, the Commission notes that
under section 507 of the Act, parties involved in the production,
preparation, or supply of a program or program material that is
intended to be aired on a broadcast station also have an obligation to
disclose to their employer or to the party for whom the programming is
being produced or to the station licensee, if they have accepted or
agreed to accept, or paid or agreed to pay, any money or valuable
consideration for inclusion of any program or material. Thus, as
detailed further below, the Commission requires that licensees will
exercise reasonable diligence to ascertain whether consideration has
been provided in exchange for the lease of airtime or in exchange for
the airing of materials directly or indirectly to the station, as well
as whether anyone involved in the production, preparation, or supply of
the material has received compensation, and that an appropriate
disclosure will be made about the involvement of any foreign
governmental entity. The Commission discusses what this obligation
means for the licensee and lessee below.
32. Programming Provided for Free as an Inducement to Air Under
317(a)(2). In addition to the payment of monetary or other valuable
consideration, section 317(a)(2) of the Act establishes that a
sponsorship disclosure may also be required in some circumstances, even
if the only ``consideration'' being offered to the station in exchange
for the airing of the material is the programming itself. As stated
above, the Commission believes that, as a practical matter, leasing
agreements will involve the exchange of money or other valuable
consideration from the programmer to the licensee. It is not typical
for a station to enter into an agreement for the lease of airtime in
exchange solely for the promise of free programming to be aired on the
station. However, to account for such a circumstance, and consistent
with the discussion in the NPRM, the Commission finds it is equally
important that the foreign sponsorship identification rules apply in
that instance, should such a circumstance arise. Section 317(a)(2)
provides that a disclosure is required at the time of broadcast in the
case of any ``political program or any program involving the discussion
of a controversial issue'' if the program itself was furnished free of
charge, or at nominal cost, as an inducement for its broadcast. The
Commission has previously interpreted ``political program'' in the
context of section 317(a)(2) to generally involve programming seeking
to persuade or dissuade the American public on a given political
candidate or policy issue.
33. While the NPRM tentatively concluded that all programming
provided by a foreign governmental entity should be treated as a
``political program'' pursuant to section 317(a)(2) of the Act, and,
thus, the provision of such programming in and of itself could be
sufficient to trigger a disclosure, based on the record before us and
upon further consideration, the Commission declines to expand the
definition of political program in this context. Rather, consistent
with the approach in this Order to narrow the scope of the rules to
target more appropriately the reported instances of undisclosed foreign
governmental programming, the Commission believes it is unnecessary to
expand the interpretation of ``political program'' and elect to apply
the existing interpretation of that term at this time. Similarly, for
purposes of the foreign sponsorship identification rules the Commission
will continue to interpret ``any program involving the discussion of
any controversial issue'' under section 317(a)(2) in a manner
consistent with precedent. The Commission finds that applying the
existing definition of ``political program'' consistent with long-
standing Commission precedent in this area addresses many of the
concerns raised by commenters about various types of programming that
inadvertently might be swept into the ambit the new foreign sponsorship
identification rules. The Commission also clarifies that its new rules
do not override the guidance provided in the Commission's 1963 seminal
order and accompanying public notice about what would be considered an
``inducement'' to broadcast programming.
34. Additionally, similar to the analysis above, the Commission
finds that section 507 of the Act applies in this context as well.
Specifically, the Commission believes it is reasonable to consider the
provision of any ``political program or any program involving the
discussion of a controversial issue'' by a foreign governmental entity
to a party in the distribution chain for no cost and as an inducement
to air that material on a broadcast station to be ``service or other
valuable consideration'' under the terms of section 507. Accordingly,
in the event that an entity involved in the production, preparation, or
supply of programming that is intended to be aired on a station has
received any ``political program or any program involving the
discussion of a controversial issue'' from a foreign governmental
entity for free, or at nominal charge, as an inducement for its
broadcast, the Commission finds that under section 507 it must disclose
that fact to its employer, the person for whom the program is being
produced, or the licensee of the station and will require an
appropriate foreign sponsorship identification. The Commission
discusses what this obligation means for the licensee and lessee below.
35. Reasonable Diligence. The Commission adopts its tentative
conclusion from the NPRM that the final responsibility for any
necessary foreign sponsorship identification disclosure rests with the
licensee in accordance with the statutory scheme. Accordingly, the
Commission finds that a broadcast station licensee must exercise
``reasonable diligence'' to determine if an entity within the scope
addressed above--i.e. an entity or individual that is purchasing
airtime on the station or providing any ``political program or any
program involving the discussion of a controversial issue'' free of
charge as an inducement to broadcast such material on the station--is a
foreign governmental entity, such that a disclosure is required under
the foreign sponsorship identification rules. As explained below, the
Commission concludes that such diligence requires that the licensee
must, at a minimum:
(1) Inform the lessee at the time of agreement and at renewal of
the foreign sponsorship disclosure requirement;
(2) Inquire of the lessee at the time of agreement and at renewal
whether it falls into any of the categories that qualify it as a
``foreign governmental entity'';
(3) Inquire of the lessee at the time of agreement and at renewal
whether it knows if anyone further back in the chain of producing/
distributing the programming that will be aired pursuant to the lease
agreement, or a sub-lease, qualifies as a foreign governmental entity
and has provided some type of inducement to air the programming;
(4) Independently confirm the lessee's status, at the time of
agreement and at renewal by consulting the Department of Justice's FARA
website and the Commission's semi-annual U.S.-based foreign media
outlets reports for the lessee's name. This need only be done if the
lessee has not already disclosed that it falls into one of the covered
categories and that there is no separate
[[Page 32228]]
need for a disclosure because no one further back in the chain of
producing/transmitting the programming falls into one of the covered
categories and has provided some form of service or consideration as an
inducement to broadcast the programming; and
(5) Memorialize the above-listed inquiries and investigations to
track compliance in the event documentation is required to respond to
any future Commission inquiry on the issue.
36. Finally, as discussed below, the Commission clarifies that the
lessee, in accordance with sections 507(b) and (c) of the Act likewise
carries an independent responsibility both to respond to the licensee's
inquiries and inform the licensee if, during the course of the lease
arrangement, it becomes aware of any information that would trigger a
disclosure pursuant to the new foreign sponsorship identification
rules.
37. Licensee's Responsibilities. Pursuant to section 317(c) of the
Act, the licensee bears the responsibility to engage in ``reasonable
diligence'' to determine the true source of the programming aired on
its station. Section 317(c) of the Act states that the licensee of each
radio station shall exercise reasonable diligence to obtain from its
employees, and from other persons with whom it deals directly in
connection with any program or program matter for broadcast,
information to enable such licensee to make the announcement required
by this section. This statutory provision is categoric and does not
provide any exceptions, as it is the licensee who has been granted the
right to use the public airwaves. As discussed in the NPRM, the
licensee of a broadcast station must ultimately remain in control of
the station and maintain responsibility for the material transmitted
over its airwaves, even when it has entered into a leasing agreement.
While this responsibility adheres in every instance, the Commission
finds that it is particularly important here, where the record shows
that the audience is typically unaware that the lessee/brokering party
that is sponsoring, paying for, or furnishing the programming could
either be a foreign governmental entity or be passing through
programming on behalf of such an entity.
38. As a threshold matter, the Commission expects the licensee to
convey clearly to the prospective lessee that there is a Commission
disclosure requirement regarding foreign government-provided
programming. In this regard, the Commission finds that ``reasonable
diligence'' also includes inquiring of the potential lessee whether it
qualifies under the definition of a ``foreign governmental entity.''
Given that the licensee is entering into a contractual agreement that
allows the lessee to program airtime or provide programming on the
station, the Commission finds it reasonable to expect that the licensee
make these basic inquiries of the lessee to ascertain whether the
programming to be aired will require a disclosure under the rules the
Commission adopt herein. The Commission notes that broadcasters may
choose to implement these requirements through contractual provisions
between the licensee and lessee though they are not required to do so.
39. The Commission also expects the licensee to inquire of the
lessee whether ``in connection with the production or preparation of
any program or program matter'' that it, or any sub-lessee, intends to
air it is aware of any money, service or other valuable consideration
from a foreign governmental entity provided as an inducement to air a
part of such program or program matter. Such an inquiry is consistent
with sections 507(b) and (c) of the Act, which impose a duty on the
lessee to inform the licensee to the extent it is aware of any payments
or other valuable consideration, including inducements to air for free,
associated with the programming such as to trigger a disclosure.
Likewise, section 317(b) of the Act imposes an associated requirement
on the licensee to make any disclosures necessitated by learning such
information pursuant to section 507 of the Act. The Commission finds
that this type of inquiry by the licensee is particularly important
given reports about instances where programming originating from
foreign governmental actors is being passed through program
distributors who lease time on U.S. broadcast stations.
40. If in response to the licensee's initial inquiry, the lessee
states that it falls within the definition of a ``foreign governmental
entity,'' or is otherwise aware of the need for a foreign sponsorship
identification disclosure, then the licensee needs to ensure that the
programming contains the appropriate disclosure. As discussed above,
licensees may become aware of the need for a foreign sponsorship
identification disclosure via the reporting obligation contained in
section 507 of the Act. On the other hand, if the lessee's response is
that it does not fall within the definition and is not separately aware
of the need for a disclosure, the Commission requires the licensee to
verify independently that the lessee does not qualify as a ``foreign
governmental entity.'' To do so, at a minimum, the licensee will need
to conduct certain independent searches. Specifically, the licensee
should check if the lessee appears on the Department of Justice's most
recent FARA list as an agent that is acting on behalf of a foreign
principal that is either a ``government of a foreign country,'' as
defined by FARA, or a ``foreign political party,'' as defined by FARA.
The licensee should also check if the lessee appears on the FARA list
as an agent whose principal is either directly or indirectly operated,
supervised, directed, owned, controlled, financed, or subsidized, in
whole or in part, by a ``government of a foreign country,'' as defined
by FARA, or a ``foreign political party'' as defined by FARA.
41. Put differently, if a lessee named ``ABC Corp.'' appears as an
agent on the FARA list, but ABC Corp.'s principal is XYZ Corp., the
licensee's search does not stop at this point simply because XYZ Corp.
is neither a government of a foreign country nor a foreign political
party. Rather the licensee should review ABC Corp's filing to see
whether XYZ Corp is in fact directly or indirectly operated,
supervised, directed, owned, controlled, financed, or subsidized, in
whole or in part, by a government of a foreign country or a foreign
political party. Such information will be indicated on the filing. If
there is such direct or indirect operation, supervision, direction,
ownership, control, financing, or subsidization, in whole or in part,
then the programming aired by ABC Corp. will need a foreign sponsorship
disclosure.
42. In this regard, the Commission notes that the FARA database is
simple to use and allows for a search by terms. Consequently, the
Commission anticipates that in most cases a licensee will need to do no
more than merely run a search of the lessee's name on the FARA
database. If the search does not generate any results, the licensee can
safely assume that the lessee is not a FARA agent and no further search
is needed on the FARA database. If the lessee's name does appear on the
FARA database, the licensee may need to review the materials filed as
part of a given agent's registration to ascertain whether the lessee
qualifies as a ``foreign governmental entity.'' The licensee should
also check if the lessee's name appears in the Commission's semi-annual
reports of U.S.-based foreign media outlets. If the lessee's name does
not appear on either the FARA list or in the U.S.-based foreign media
outlet reports then no further checks are needed of these sites.
Finally, the Commission requires that the
[[Page 32229]]
licensee memorialize its inquiries to track compliance and create a
record in the event of any future Commission inquiry.
43. The Commission requires that a licensee investigate the nature
of the party to whom it is leasing airtime both at the time the
agreement between the parties is executed and at renewal. As part of
its inquiries, the licensee should also inquire whether the lessee is
aware of anyone further back in the chain of producing/transmitting the
programming who might qualify as a foreign governmental entity and has
provided some form of consideration as an inducement to air the
programming. To the extent that the lessee confirms that it still
qualifies as a foreign governmental entity, no other investigation on
the part of the licensee is necessary beyond ensuring that the
disclosures specified by the rules continue to be made. If the lessee
indicates that it is no longer a foreign governmental entity, then
programming disclosures are no longer required under the rules after
the licensee independently verifies that this is the case.
44. The Commission requires reasonable diligence to be conducted
not only at the time of the agreement is entered into, but also at
renewal time. The Commission recognizes the lessee's status may change,
particularly if the duration of the lease agreement is for a term of
years. That is, over the course of the lease, not only might the lessee
in fact become, due to actions on its part, a ``foreign governmental
entity,'' for example, by entering into an agency relationship pursuant
to FARA, but it may also be the case that the lessee contests the
Department of Justice's designation of the lessee as a FARA agent such
that the lessee's name only appears on the FARA list subsequent to the
establishment of the lease agreement. Moreover, the Commission requires
the licensee to memorialize the results of its diligence in some manner
for its own records and maintain this documentation for the remainder
of the then-current license term or one year, whichever is longer. In
this manner, the licensee will have the necessary documentation should
the Commission inquire about a particular lease agreement or particular
programming aired on the licensee's station pursuant to the lease of
time.
45. In addition, the Commission strongly encourages licensees to
include a provision in their lease agreements requiring the lessee to
notify the licensee about any change in the lessee's status such as to
trigger the foreign sponsorship identification rules. The Commission
expects that inclusion of such a provision will impress upon the lessee
the importance of its rules and result in a statement to the licensee
if there is a change in status. Some commenters assert that in lieu of
the clear objective steps laid out above for meeting the statutory
``reasonable diligence'' requirement, the Commission should instead
require broadcasters to engage in ``reasonable diligence'' only if they
have reason to believe that their lessee is affiliated with a foreign
governmental entity. The Act does not, however, contain a threshold
showing of ``reason to believe'' in advance of requiring that
broadcasters engage in ``reasonable diligence.'' Moreover, the adoption
of such a subjective standard would make the rules adopted in the
instant Order virtually ineffectual and unenforceable by leaving it up
to the broadcasters' discretion whether to check the status of a
lessee, rather than relying on quick objective searches of reliable
government databases. Some of those that propose this ``reason to
believe'' standard assert by way of example that there is no reason to
believe that a church or school group with whom a licensee has had an
extended relationship is likely to be, or have any connection with, a
foreign governmental entity, and, hence there is no reason to inquire
about such a lessee's status or its programming. The practical
implication of linking the ``reasonable diligence'' steps described
above to a broadcaster's belief based on its previous long-term
relationships with given lessees, however, is that only new lessees or
perhaps those with characteristics unknown to the broadcaster will be
subject to ``reasonable diligence,'' an approach that would seem to
favor existing lessees at the expense of new and diverse entrants and
to jeopardize the Commission's efforts to ensure broadcast audiences
know who is seeking to persuade them.
46. Some commenters suggest that the requirement to check the FARA
list is unduly burdensome. The Commission finds that limiting the
application of its foreign sponsorship disclosure rules to situations
involving leasing agreements and also narrowing the scope of the term
``political program'' to align with prior interpretations, should
greatly diminish the overall compliance burden on licensees by limiting
the circumstances in which such searches will be necessary to those
areas that raise important issues of public concern--as compared to the
proposal laid out in the NPRM, which applied to all programming
arrangements and required a special disclosure for all programming
provided by a foreign governmental entity--while taking necessary steps
to ensure broadcasters will identify those instances where foreign
sponsorship identification is necessary. In addition, the objective
tests laid out above should facilitate compliance, by specifying what
licensees have to do to comply with the ``reasonable diligence''
requirement in terms of straightforward and limited search requirements
that minimize the burden on broadcasters and are necessary to ensure
that the public is adequately informed about the true identity of a
programmer's ties to a foreign government. Thus, the Commission finds
that these reasonable diligence inquiries do not pose undue burden on
broadcast licensees and, more importantly, will help ensure that the
licensee is cognizant of whether the entity seeking to lease time on
its station is a foreign governmental entity.
47. Lessee's Obligations. As previously discussed, pursuant to
section 507, the lessee also holds an independent obligation to
communicate information to the licensee relevant to determining whether
a disclosure is needed. In this regard, the Commission adopts the
tentative conclusion contained in the NPRM that sections 507(b) and (c)
of the Act impose a duty on the broker/lessee to inform the licensee to
the extent it is aware of any payments (or other valuable
consideration) associated with the programming such as to trigger a
disclosure. No party commented on the Commission's tentative conclusion
that sections 507(b) and (c) of the Act impose a duty on the broker/
lessee to inform the licensee to the extent it is aware of any payments
(or other valuable consideration) associated with the programming. As
stated in the NPRM, in its 1960 amendments to the Act, Congress imposed
on non-licensees associated with the transmission or production of
programming a requirement to disclose any knowledge of consideration
paid as an inducement to air particular material. Congress added this
provision in recognition that individuals other than the licensee were
increasingly involved in programming decisions. Thus, consistent with
the statute, the Commission concludes that it is incumbent on a lessee
to convey to the licensee its knowledge of any payment or consideration
provided by, or unpaid programming received as an inducement from, an
entity or individual that triggers the foreign sponsorship
identification rules laid out in this Order.
[[Page 32230]]
48. The Commission emphasizes here that the reach of sections
507(b) and (c) of the Act is not limited only to those entities or
individuals who have entered into lease agreements with the licensee.
Rather, these provisions impose a disclosure obligation on any person
who, in connection with the production or preparation of any program or
who supplies to any other person any program to convey any information
such person may have about the provision of any inducement to broadcast
the program in order to necessitate a sponsorship identification
disclosure by the licensee. Specifically, such non-licensees must
disclose to their employer, the person for which such program is being
produced (e.g., the next individual involved in the chain of
transmitting the programming to the licensee), or the licensee itself,
their knowledge of any payment or ``valuable consideration'' provided
or accepted by a foreign governmental entity. Section 507(a) of the Act
imposes a similar disclosure obligation on the licensee's own
employees. Likewise, section 317(b) of the Act imposes a parallel
requirement on licensees to make a required disclosure to the public at
the time of broadcast if they learn of the need for a disclosure via
the mechanism laid out in section 507 of the Act.
49. Reasonable Diligence Requirements to Apply on a Prospective
Basis. Some commenters have asked that any new rules only apply on a
going forward basis. Recognizing that some lease agreements may last
for several years, the Commission declines to delay application of its
rules to only new lease agreements. Rather, the Commission believes
that the public interest is best served if audiences are notified of
foreign sponsorship as soon as reasonably possible. Thus, in addition
to applying the rules to new lease agreements and renewals of existing
agreements, the Commission requires that lease agreements in place when
the changes to the rules adopted herein become effective come into
compliance with the new requirements, including undertaking reasonable
diligence, within six months. In this manner, the transparency the
Commission seeks to achieve can be accomplished in a way that does not
unduly burden licensees.
50. Contents and Frequency of Required Disclosure of Foreign
Sponsorship. Consistent with the NPRM, the Commission adopts
standardized language to inform audiences at the time of broadcast that
the program material has been provided by a foreign governmental
entity. Such standardized language will avoid confusion and ensure that
the information is conveyed clearly and concisely to the audience.
Accordingly, as discussed below, the Commissions adopts the disclosure
language proposed in the NPRM with two modifications, one to provide
greater flexibility in the language used and the other to harmonize its
labeling requirements with those imposed pursuant to FARA. In addition,
the Commission adopts a requirement that stations airing programming
subject to the proposed disclosure requirement must place copies of the
disclosures in their OPIFs, in a standalone folder marked as ``Foreign
Government-Provided Programming Disclosures'' so that the material is
readily identifiable to the public pursuant to the timing requirements
discussed below.
51. Labeling Requirement. First, as requested by NAB, the
Commission allows licensees the flexibility to use any of three terms
(sponsored, paid for, or furnished) in an on-air foreign sponsorship
disclosure statement, rather than mandate the use of ``paid for, or
furnished'' as proposed, in order to conform the new requirement more
closely to existing sponsorship identification requirements. The
Commission notes that the language proposed by the National Association
of Broadcasters (NAB) is consistent with existing sponsorship
identification requirements. To the extent that the foreign sponsorship
identification rules comport with existing rules and with how broadcast
station personnel are accustomed to operating, the Commission finds
that such allowances should facilitate compliance by licensees and
minimize the burden on them. Hence, at the time a station broadcasts
programming that was provided by a foreign governmental entity, the
Commission requires a disclosure identifying that fact and the origin
of the programming as follows:
The [following/preceding] programming was [sponsored, paid for,
or furnished,] either in whole or in part, by [name of foreign
governmental entity] on behalf of [name of foreign country].
52. In establishing this disclosure language, the Commission
recognizes that FARA also has a labelling requirement and clarify that
the programming need not have two separate labels--both the FARA label
and the Commission's full disclosure. Rather, for those entities that
are subject to FARA, the Commission accepts for compliance purposes the
contents of the FARA label as long as it is modified to include the
country associated with the foreign governmental entity named in the
label and comports with the format and frequency requirements described
below. As discussed further below, the Commission notes that FARA
requires only that FARA agents label materials, including broadcast
programming, with a conspicuous statement identifying the FARA agent
and its principal when distributed in the United States; therefore,
unless the licensee has registered under FARA, the licensee may not
have the required FARA label. Thus, for those entities not registered
under FARA, the Commission requires the disclosure language the
Commission adopts in this document. Moreover, the Commission finds that
its disclosure statement--or, alternatively, the passthrough of
modified FARA labels--provides audiences of broadcast stations greater
insight about the source of foreign government-provided programming
than may exist with existing FARA labeling practices. As described
above, the language the Commission adopts in this document requires
that the country associated with the foreign governmental entity be
named in the disclosure, which will provide additional information when
that entity is a foreign political party or an agent registered under
FARA.
53. In the interest of ensuring transparency for the intended
viewers and listeners of foreign government-provided programming, the
Commission also requires that, if the primary language of the
programming is other than English, the disclosure statement should be
presented in the primary language of the programming. Although the NPRM
sought comment on this issue, no commenters addressed this point. For
programming that contains a ``conspicuous statement'' required by FARA,
and such a conspicuous statement is in a language other than English,
an additional disclosure in English is not needed.
54. With regard to the format of the disclosure, for televised
programming, the Commission requires the disclosure to be in letters
equal to or greater than four percent of the vertical picture height
and be visible for not less than four seconds to ensure readability.
The NPRM sought comment on this format, but no commenters addressed
this point. As this format convention replicates the existing format
rule for a televised political advertisement concerning a candidate for
public office, the Commission anticipates minimal compliance burden on
licensees. For radio broadcasts, the Commission incorporates into the
rules the Department of Justice guidance provided to FARA registrants
that the disclosure shall be audible. Once again,
[[Page 32231]]
although the NPRM sought comment on this issue, no commenters addressed
this point.
55. With regard to the frequency of the disclosure, consistent with
the NPRM and the existing rules for political broadcast matter or any
broadcast matter involving the discussion of a controversial issue of
public importance, the Commission requires that the disclosure be made
at both the beginning and conclusion of the broadcast station
programming to ensure the audience is aware of the source of its
programming. Also consistent with its existing rules for political
broadcast matter or any broadcast matter involving the discussion of a
controversial issue of public importance, the Commission requires that
for any broadcast of 5 minutes duration or less, only one such
announcement must be made at either the beginning or conclusion of the
program.
56. The Commission deviates from its existing sponsorship
identification rules in one respect. The Commission adopts its
tentative conclusion from the NPRM that for programming of greater than
sixty minutes in duration, an announcement must be made at regular
intervals during the broadcast, but no less frequently than once every
60 minutes. Sponsorship announcements at regular intervals are not
explicitly required under the current rules. While NAB urges the
Commission not to deviate from the existing timing and frequency rules,
the Commission believes that this one additional requirement is
necessary given the importance of disclosure related to foreign
government-provided programming. While APTS notes that NCE stations are
prohibited by statute from interrupting programming to identify funding
sources, which could override and nullify the proposed frequency
requirement in the context of NCE stations, as stated above, the
Commission believes that NCE stations will rarely, if ever, fall within
the ambit of the new rules. To the extent an issue does arise, the
Commission will address such situations on a case-by-case basis through
either its waiver process or the means that appear appropriate at that
time. As discussed in the NPRM, the Commission finds that periodic
announcements are necessary, particularly in those instances where a
foreign governmental entity is continually broadcasting programming
without an identifiable beginning or end, such as through a lease of a
100% of a station's airtime. No commenter objected to the Commission's
reasoning for this finding nor commented on the burden of recurring
announcements. The Commission notes that in the case of a political
broadcast matter or any broadcast matter involving the discussion of a
controversial issue of public importance--which typically does not have
an obvious sponsor--the current rules require a sponsorship
identification both at the beginning and conclusion of any such
broadcast of greater than 5 minutes. Similarly, here the Commission
believes that periodic announcements (once every 60 minutes) are
necessary for any foreign government-provided programming with a
duration of greater than one hour because of the lack of transparency
regarding the true sponsor of such programming. The Commission notes
that periodic announcements (i.e., once every hour versus at the
beginning and conclusion of the program) are also necessary because of
the longer blocks of programming time foreign governmental entities
typically purchase in connection with leasing arrangements.
57. Finally, consistent with the proposal in the NPRM, the
Commission finds that its standardized disclosure requirements apply
equally to any programming transmitted on a broadcast station's
multicast streams. The Commission received no objections to this
proposal, and consequently finds no reason to exclude multicast
streams. As such, multicast streams are subject to all the disclosure
requirements pertaining to foreign government-provided programming that
the Commission adopts in this document.
58. Public File. Consistent with the NPRM, the Commission adopts a
requirement that stations airing programming subject to the proposed
disclosure requirement must place copies of the disclosures in their
OPIFs, in a standalone folder marked as ``Foreign Government-Provided
Programming Disclosures'' so that the material is readily identifiable
to the public, as well as a requirement with regard to the frequency of
placing such material in the public file. For broadcast stations that
do not have obligations to maintain OPIFs, the Commission recommends
such stations retain a record of their disclosures in their station
files consistent with previous Commission guidance. The Commission does
not, however, require licensees to submit additional information to
their OPIFs concerning the list of persons operating the foreign
governmental entity providing programming.
59. Specifically, the Commission finds that licensees must place in
their OPIFs the actual disclosure and the name of the program to which
the disclosure was appended. In addition, the licensee must state the
date and time the program aired. If there were repeat airings of the
program, then those additional dates and times should also be included
in the OPIF. With regard to the frequency with which licensees must
update their OPIFs with this disclosure information, the Commission
aligns this requirement with its existing requirement to update the TV
Issues/Programs Lists on a quarterly basis, as this will minimize the
need for licensees to track different public filing requirements. The
Commission also establishes the same OPIF two-year retention period for
disclosures related to foreign government-provided programming as
currently exists for the retention of lists regarding the executives of
any entity that sponsored programming concerning a political or
controversial matter.
60. The Commission does not adopt the ``as soon as possible''
disclosure standard contained in Sec. 73.1943 of its rules or require
posting to occur ``within twenty-four hours of the material being
broadcast'' as proposed in the NPRM. The Commission is persuaded by
NAB's comments that the ``as soon as possible'' standard contained in
Sec. 73.1943(c) of the rules need not apply to disclosures associated
with foreign governmental entities. As NAB notes, the immediacy
requirement in the political advertising context stems from the need to
ensure that candidates can exercise their statutory rights to equal
opportunities at statutorily mandated rates and the time-sensitive need
to reach potential voters before an election. The Commission finds no
corresponding need to respond within an expedited timeframe in the case
of foreign government-provided programming.
61. The Commission concludes that, to the extent the foreign
programming consists of a political matter or matter involving the
discussion of a controversial issue of public importance, licensees
obtain and disclose in their OPIFs a list of the persons operating the
entity providing the programming, as currently required. The Commission
clarifies that licensees can satisfy the required OPIF disclosures by
identifying the officers and directors of the lessee in a single filing
per lessee (rather than separate filings concerning each individual
program sponsored by the same lessee) together with other filings
required by the foreign sponsorship identification rules. The
Commission is not persuaded by NAB's contention--that, in the case of
foreign-government-provided programming, the on-air and OPIF
disclosures will provide the necessary
[[Page 32232]]
information to the American public identifying the foreign governmental
entity that provided the programming and the foreign country with which
it is affiliated--to grant what effectively would be an exemption to
existing sponsorship identification rules for political programming
provided by foreign governmental entities. However, the Commission
determines at this time that the licensee need not provide any
additional information in its OPIF, as considered in the NPRM,
regarding the relationship between the foreign governmental entity and
the foreign country that the foreign governmental entity represents,
having no evidence to support the need for such information to enhance
public disclosure at this time.
62. Finally, the Commission adopts the unopposed tentative
conclusion contained in the NPRM that licensees maintain in their OPIFs
the disclosures associated with foreign government-provided programming
rather than giving them the option of maintaining such information at
the network headquarters if the programming was originated by a
network.
63. Concerns About Overlap with Other Statutory or Regulatory
Requirements. The Commission rejects any suggestion that its foreign
sponsorship identification rules are either duplicative of requirements
imposed under FARA or unnecessary given the Commission's current
sponsorship identification rules. Rather, as discussed above and
consistent with the admonitions of commenters, the Commission adopts
disclosure requirements that further the its statutory mandate to
provide transparency to audiences of broadcast stations regarding the
source of sponsored programming, while avoiding unnecessary duplication
with the FARA requirements.
64. As a preliminary matter, the Commission emphasizes that
although the requirements laid out in the NPRM and the instant Order
look to FARA for assistance in determining what qualifies as a
``foreign governmental entity,'' section 317 of the Act and FARA each
cover different types of entities with respect to their labeling
requirements. Section 317 and the Commission's sponsorship
identification rules speak specifically to the obligations of licensees
of broadcast stations, imposing transparency requirements regarding the
origin of sponsored content as an element of the licensee's stewardship
of the public airwaves. In contrast, FARA imposes an obligation on
agents required to register under FARA to label materials with a
conspicuous statement identifying the FARA agent and its principal when
it is distributing relevant materials within the United States by any
means or media. Accordingly, unless the licensee of a broadcast station
itself is a registered agent under FARA, the label required by FARA may
not appear. Even if such labels are being passed through in some
instances, as discussed above and in the NPRM, the reports about
incidents of undisclosed foreign government programming indicate the
need for greater action to ensure transparency. Consistent with the
Commission's own statutory mandate, the requirements adopted in the
instant Order focus specifically on broadcast licensees to ensure they
disclose foreign government provided-programming consistent with the
intent and language of section 317 of the Act.
65. Further, as noted above, the rules the Commission adopts in
this document require identification of the country associated with the
foreign governmental entity that provided the programming, whereas the
FARA disclosure statement does not require this information. Rather,
FARA requires identification of only the foreign principal, whose name
may not identify its connection to a foreign country. In addition,
while FARA requires that covered materials that are televised or
broadcast, or which are caused to be televised or broadcast shall be
introduced by a statement which is reasonably adapted to convey to the
viewers or listeners thereof such information as is required under
FARA, it does not dictate whether such information should be repeated
during a broadcast or at what frequency. In contrast, the foreign
sponsorship identification rules the Commission adopts in this document
contain specific guidance for broadcast licensees as to the frequency
and content of the required label to increase transparency and ensure
audiences are aware of the foreign sources of such programming.
66. Given the key differences between the FARA requirements and
those the Commission adopts in this document, the Commission rejects
NPR's assertion that enforcement of Sec. 73.1212(e) of the
Commission's rules could achieve the Commission's goals in this
proceeding. As REC Networks notes, compliance with the Commission's
existing sponsorship identification rules does not currently result in
the identification of a foreign government as the ultimate provider of
programming to the extent this is the case.
67. Section 325(c) Permits. The Commission adopts the NPRM's
tentative conclusion that the proposed foreign sponsorship
identification rules should apply expressly, to the extent applicable,
to any programming broadcast pursuant to a section 325(c) permit, in
addition to U.S.-licensed broadcast stations. A section 325(c) permit
is required when an entity produces programming in the United States
but, rather than broadcasting the programming from a U.S.-licensed
station, transmits or delivers the programming from a U.S. studio to a
non-U.S. licensed station in a foreign country and broadcasts the
programming from the foreign station with a sufficient transmission
power or from a geographic location that enables the material to be
received consistently in the United States.
68. The Commission finds that applying the same disclosure
requirements to programming broadcast pursuant to a section 325(c)
permit serves the public interest because, like programming from a
U.S.-licensed station, programming from a section 325(c) station is
received by audiences in the United States. In this context, the
section 325(c) permit holder has full control over its programming
content and whether and how any programming provided by foreign
governmental entities should be incorporated in the programming
broadcast pursuant to its section 325(c) permit and broadcasted by the
foreign station. Accordingly, any programming agreement with a section
325(c) holder will be subject to the foreign sponsorship disclosure if
material aired on the foreign station has been sponsored, paid for, or
furnished for free as an inducement to air by a foreign governmental
entity. Under the rules the Commission adopts herein, a section 325(c)
permit holder must ensure that the foreign station will broadcast the
disclosure along with the programming provided under its section 325(c)
permit. The Commission finds that treating U.S.-licensed broadcast
station licensees and section 325(c) permittees in the same manner with
respect to foreign government-provided programming would serve the
public interest and could avoid creating a potential loophole in the
regulatory framework with respect to the identification of foreign
government-provided programming.
69. The Commission received no comment on its tentative conclusion
regarding programming provided pursuant to section 325(c) permits,
including regarding whether any aspect of the foreign sponsorship
identification requirements should be modified for section 325(c)
permit holders. The Commission therefore finds no reason to depart from
its tentative conclusion in this regard and find that the foreign
[[Page 32233]]
sponsorship identification rules will apply to any programming
broadcast pursuant to a section 325(c) permit. The Commission notes,
however, that the section 325(c) permit holders are not required to
maintain an online public inspection file. Accordingly, a section
325(c) permit holder shall place copies of the disclosures required
along with the name of the program to which the disclosures were
appended in the International Bureau's public filing System (IBFS)
under the relevant IBFS section 325(c) permit file. The filing must
state the date and time the program aired. In the case of repeat
airings of the program, those additional dates and times should also be
included. Where an aural announcement was made, its contents must be
reduced to writing and placed in the IBFS in the same manner.
70. First Amendment Considerations. Consistent with the NPRM, the
Commission finds that the foreign sponsorship identification rules the
Commission adopts in this document comport with the strictures of the
First Amendment to the Constitution, even under the highest level of
scrutiny. As discussed above and at length in the NPRM, the Government
has a compelling interest in ensuring that the public is aware of when
a party has sponsored content on a broadcast station. The Commission
finds that interest is even more important when a foreign governmental
entity is involved in the sponsorship of the programming material, and
that transparency to American audiences as to the sponsorship of such
programming is a compelling interest. Having narrowed the rules even
further than initially proposed, the Commission finds the final rules
to be ``narrowly tailored'' to fulfill a ``compelling'' government
interest using the ``least restrictive means'' to serve that goal. That
being said, consistent with the NPRM's further tentative conclusion,
the Commission believes the disclosure requirement the Commission
adopts in this document will be evaluated under a less restrictive,
intermediate scrutiny standard applied to content neutral restrictions
on broadcasters and thus will be upheld if narrowly tailored to achieve
a substantial government interest. Moreover, because the disclosure
requirement is content neutral--that is, it does not ban any type of
speech but merely requires factual disclosure of the source of certain
of programming--the Commission believes that the rules comply with the
First Amendment as they are narrowly tailored to achieve a substantial
Government interest. Thus, the Commission finds that, regardless of the
level of scrutiny applied, its foreign sponsorship identification rules
satisfy the First Amendment.
71. In addition, the Commission has significantly narrowed the
scope of the programming covered by this rule and minimized both the
amount of speech potentially affected and the compliance burdens placed
on broadcast licensees to focus on the context in which the record
shows there are significant transparency concerns. As discussed above,
the disclosure will now be required only for programming aired pursuant
to a lease of airtime if directly or indirectly provided by a foreign
governmental entity. By focusing the foreign sponsorship identification
rules on leased programming, the Commission excludes from coverage
programming that does not raise the same level of transparency concerns
and a significant number of broadcast stations that do not engage in
such leasing agreements and virtually all non-commercial, educational
broadcasters, which rarely lease time to third parties in the manner
discussed.
72. Additionally, based on comments in the record, the Commission
has clarified above how broadcast stations can comply with the narrowed
scope of the rules to ensure that they are no more burdensome than
necessary to serve the vital need for transparency about who is
attempting to influence viewers. For example, the Commission has
adopted the commenters' suggestion that if the programming already
contains an appropriate disclosure pursuant to FARA that conveys the
same information required by the Commission's rules and that is aired
with at least the same frequency, then the station need not apply an
additional disclosure.
73. Ultimately, the rules the Commission adopts in this document
are a minimal extension of the long-standing sponsorship identification
rules required by Sec. 73.1212 of its rules and well within the
authority granted under section 317 of the Act. Similarly, the
Commission believes its rules are consistent with, and not duplicative
of, the equally long-standing labeling requirement contained in FARA.
As such, the Commission finds that the modification of the sponsorship
identification rules the Commission adopts herein is entirely
consistent with the existing statutes and precedent in this area and
complies with the First Amendment.
74. Broadcasters have stated that focusing the rules on the type of
programming subject to FARA disclosures and exempting inconsequential
programming would appropriately focus the Commission's rules on foreign
propaganda, rather than the broad array of broadcast content that
raised a host of concerns, including First Amendment issues, for NAB
and other commenters. Fox similarly states that the rules should apply
to longer programming provided by a FARA registrant and aired pursuant
to a lease agreement. NAB based its previous claim that the rules would
not withstand either intermediate or strict scrutiny on the assertion
that they are duplicative of FARA obligations and thus fail to serve a
compelling or substantial Government interest. As the Commission has
discussed above, its foreign sponsorship identification rules apply to
entities and programming not necessarily covered by FARA because they
impose obligations directly on broadcasters and their programming
suppliers. Further, the rules the Commission adopts herein promote
greater transparency by requiring identification of the specific
foreign government attempting to influence American viewers rather than
referring viewers to a Government website to review. For these reasons,
the Commission concludes that its modified foreign sponsorship
identification rules comply with the First Amendment.
75. Cost-Benefit Analysis. The NPRM sought comment on the benefits
and costs associated with adopting foreign sponsorship identification
rules. The NPRM also requested specific data and analysis in support of
any claimed costs and benefits. No commenter provided quantified
calculations of the benefits or costs of the proposed rules.
Nevertheless, the Commission finds that by limiting the proposed rules
to the circumstances stated above, the costs associated with the rules
are reduced significantly from the initial proposal. Research reviewed
by Commission staff also suggests that there are measurable benefits to
sponsorship identification disclosures. Moreover, the lack of
transparency regarding foreign influence and foreign government
sponsored media has become a major public concern, including in
Congress and for the United States Department of State. The public
filing requirement will provide data on the extent of foreign
government sponsored programming airing on broadcast stations.
Therefore, the Commission finds that the costs associated with adopting
the foreign sponsorship identification rules, as modified herein, do
not outweigh the public benefits the Commission has identified
regarding transparency of the
[[Page 32234]]
source of programming heard or viewed by the American public.
76. Regulatory Flexibility Act. As required by the Regulatory
Flexibility Act of 1980 (RFA), as amended, an Initial Regulatory
Flexibility Certification was incorporated into the NPRM. Pursuant to
the RFA, the Commission has prepared a Final Regulatory Flexibility
Certification relating to this Report and Order.
77. Paperwork Reduction Act. This Report and Order contains
proposed new or revised information collection requirements subject to
the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501-
3520). The requirements will be submitted to the Office of Management
and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the
general public, and other Federal agencies will be invited to comment
on the new or modified information collection requirements contained in
this proceeding. In addition, the Commission notes that pursuant to the
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44
U.S.C. 3506(c)(4), the Commission previously sought specific comment on
how the Commission might further reduce the information collection
burden for small business concerns with fewer than 25 employees.
78. Congressional Review Act. The Commission has determined, and
Administrator of the Office of Information and Regulatory Affairs,
Office of Management and Budget, concurs, that this rule is ``non-
major'' under the Congressional Review Act, 5 U.S.C. 804(2). The
Commission will send a copy of this Report & Order to Congress and the
Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A). The
Commission will send a copy of this Report and Order to Congress and
the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).
79. Final Regulatory Flexibility Act Analysis. As required by the
Regulatory Flexibility Act of 1980, as amended (RFA), an Initial
Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM in
this proceeding. The Federal Communications Commission (Commission)
sought written public comment on the proposals in the NPRM, including
comment on the IRFA. The Commission received no comments on the IRFA.
This present Final Regulatory Flexibility Analysis (FRFA) conforms to
the RFA.
80. Need for, and Objectives of, the Proposed Rules. As stated in
the IRFA, broadcast programming viewers and listeners deserve to know
when a foreign governmental entity has provided programming so that
they can better evaluate the value and accuracy of such programming.
Broadcast stations are entrusted with using the public airwaves to
benefit their local communities and this obligation includes ensuring
that any foreign government-provided programming is clearly identified.
The rules the Commission adopts in this document update its sponsorship
identification rules to provide specific guidance on the language and
frequency of the necessary disclosures, provide clarity about how to
identify a foreign governmental entity, and specify the steps
broadcasters should take to ensure compliance with the ``reasonable
diligence'' standard contained in section 317(c) of the Communications
Act of 1934, as amended (Act).
81. While the NPRM proposed that the foreign sponsorship
identification rules would apply in any circumstance in which a foreign
governmental entity directly or indirectly provided material for
broadcast or furnished material to a station free of charge (or at
nominal cost) as an inducement to broadcast such material, the Report
and Order (R&O) narrows the rule to address specifically those
circumstances in which a foreign governmental entity is programming a
U.S. broadcast station pursuant to the lease of airtime. The rules
adopted in the R&O require a specific disclosure at the time of
broadcast if material aired pursuant to the lease of time on the
station has been sponsored, paid for, or, in the case of political
programming or programming involving a controversial issue, furnished
for free as an inducement to air by a foreign governmental entity. The
focus on leasing agreements narrows the application of the disclosure
rules significantly, thereby minimizing the burden on broadcasters
while ensuring that viewers and listeners are sufficiently informed as
to the origin of material broadcast on stations when foreign
governmental entities are providing programming. For example, the
Commission anticipates that most, and possibly all, NCE station
programming arrangements will fall outside the ambit of the rules given
limitations on the ability of NCE stations to engage in leasing
agreements. The foreign sponsorship identification rules apply to any
programming broadcast pursuant to a section 325(c) permit. A section
325(c) permit is required when an entity produces programming in the
United States but, rather than broadcasting the programming from a
U.S.-licensed station, transmits or delivers the programming from a
U.S. studio to a non-U.S. licensed station in a foreign country and
broadcasts the programming from the foreign station with a sufficient
transmission power or from a geographic location that enables the
material to be received consistently in the United States.
82. The R&O defines foreign governmental entities by referring to
existing statutory definitions included in the Foreign Agents
Registration Act of 1938, as amended (FARA) and the Communications Act.
The definition adopted in the R&O includes:
(1) A ``government of a foreign country'' as defined by FARA;
(2) A ``foreign political party'' as defined by FARA;
(3) An individual or entity registered as an ``agent of a foreign
principal,'' under section 611(c) of FARA, whose ``foreign principal''
is a ``government of a foreign country,'' a ``foreign political
party,'' or is directly or indirectly operated, supervised, directed,
owned, controlled, financed, or subsidized by a ``government of a
foreign country'' or by a ``foreign political party'' as defined by
FARA, and that is acting in its capacity as an agent of such ``foreign
principal;''
(4) An entity meeting the definition of a ``U.S.-based foreign
media outlet'' pursuant to section 722 of the Act that has filed a
report with the Commission.
83. Based on broadcaster concerns regarding the difficulty of
determining whether an entity is a ``foreign mission'' as included in
the proposed definition of ``foreign governmental entity,'' the final
definition the Commission adopts in this R&O excludes ``foreign
missions.''
84. The revised required standard foreign sponsorship
identification disclosure must state:
The [following/preceding] programming was [sponsored, paid for,
or furnished,] either in whole or in part, by [name of foreign
governmental entity] on behalf of [name of foreign country].
In establishing this disclosure language, the R&O first adjusts the
language proposed in the NPRM to allow including the word ``sponsored''
as one of the options that can be used. Broadcasters sought this change
because it is consistent with existing sponsorship identification
language. In addition, recognizing that FARA requires a standard
disclosure, the R&O simplifies compliance by allowing broadcasters,
including small broadcasters, to pass through any required FARA label
included with the programming, so long as it also adds the name of the
foreign country involved in
[[Page 32235]]
providing the programming and comports with the format and frequency
requirements described below. The R&O concludes that the FARA
disclosure with the addition of the country name satisfies the need to
provide viewers and listeners greater insight regarding the source of
foreign government-provided programming.
85. The R&O details what is required of broadcasters to meet the
``reasonable diligence'' standard contained in section 317(c) of the
Act so that broadcasters can determine if a foreign sponsorship
identification disclosure is needed. The R&O concludes that such
diligence at a minimum requires the broadcaster to at the time of
agreement and at renewal:
(1) Inform the lessee of the foreign sponsorship disclosure
requirement;
(2) Inquire of the lessee whether it falls into any of the
categories that qualify it as a ``foreign governmental entity'';
(3) Inquire of the lessee whether it knows if anyone further back
in the chain of producing/distributing the programming that will be
aired pursuant to the lease agreement, or a sub-lease, qualifies as a
foreign governmental entity and has provided some type of inducement to
air the programming;
(4) Independently confirm 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. This need only be done if the
lessee states that it does not fall into one of the covered categories
and that there is no separate need for a disclosure because no one
further back in the chain of producing/transmitting the programming
falls into one of the covered categories and has provided some form of
service or consideration as an inducement to broadcast the programming;
and
(5) Memorialize the above-listed inquiries and investigations to
track compliance in the event documentation is required to respond to
any future Commission inquiry on the issue.
86. The R&O specifies that the licensee must memorialize the
results of its diligence in some manner for its own records and
maintain this documentation for the remainder of the then-current
license term or one year, whichever is longer. In addition, the R&O
clarifies that, under the revised rules, the lessee of airtime, in
accordance with sections 507(b) and (c) of the Act, also holds an
independent obligation to communicate information to the licensee
relevant to determining whether a disclosure is needed.
87. In the interest of ensuring transparency for viewers and
listeners of foreign government-provided programming, the R&O requires
that, if the primary language of the programming is other than English,
the disclosure statement should be presented in the primary language of
the programming. The disclosure for televised programming should be in
letters equal to or greater than four percent of the vertical picture
height and be visible for not less than four seconds to ensure
readability. As this requirement tracks existing rules for televised
political advertisements, television licensees are familiar with this
format. For radio broadcasts, the R&O incorporates the existing DOJ
interpretation for programming provided by FARA registrants: That the
disclosure shall be audible. The R&O requires that the disclosure be
made at both the beginning and end of the programming, and, consistent
with an existing requirement for ``political broadcast matter,'' for
any broadcast of 5 minutes or less, only once. Finally, for programming
longer than sixty minutes, the disclosure must be made at regular
intervals during the broadcast, but no less frequently than once every
sixty minutes. The R&O finds that periodic announcements are necessary,
particularly in those instances where a foreign governmental entity is
continually broadcasting programming without an identifiable beginning
or end, such as through a lease of a 100% of a station's airtime. Other
than this final requirement for longer programming, the new size,
frequency and duration requirements of the new foreign sponsorship
identification rules are consistent existing sponsorship identification
rules and are thus familiar to broadcasters.
88. Consistent with the NPRM, the R&O adopts a requirement that
stations airing foreign government-provided programming must place
copies of the disclosures in their Online Public Information Files
(OPIFs), in a standalone folder marked as ``Foreign Government-Provided
Programming Disclosures'' so that the material is readily identifiable
to the public. The R&O adopts the proposal discussed in the NPRM, that,
to the extent the foreign programming consists of a political matter or
matter involving the discussion of a controversial issue of public
importance, licensees obtain and disclose in their OPIFs a list of the
persons operating the foreign governmental entity that has provided the
programming. The R&O rules require licensees to place in their OPIFs
the actual disclosure and the name of the program to which the
disclosure was appended. In addition, the licensee must state the date
and time the program aired. If there are repeat airings of the program,
then those additional dates and times should also be included in the
OPIF. In response to broadcaster concerns about burdens, the R&O does
not adopt the NPRM's ``as soon as possible'' standard for updating
OPIFs contained in Sec. 73.1943 of existing rules, nor interpret this
phrase to mean ``within twenty-four hours of the material being
broadcast.'' Rather, for frequency of updating OPIFs, the R&O adopts
rules that align with an existing requirement to update the TV Issues/
Programs Lists on a quarterly basis, as this will minimize the need for
licensees to track different public filing requirements. The R&O also
adopts the same OPIF two-year retention period as currently exists for
the retention of lists of the executives of any entity that sponsored
programming concerning a political or controversial matter. For
broadcast stations that do not have obligations to maintain OPIFs, the
Commission recommends such stations retain a record of their
disclosures in their station files consistent with previous Commission
guidance. The R&O rules also require section 325(c) permit holders must
place copies of the disclosures required along with the name of the
program to which the disclosures were appended in the International
Bureau's public filing System (IBFS) under the relevant IBFS section
325(c) permit file. The filing must state the date and time the program
aired. In the case of repeat airings of the program, those additional
dates and times should also be included. Where an aural announcement
was made, its contents must be reduced to writing and placed in the
IBFS in the same manner.
89. Summary of Significant Issues Raised by Public Comments in
Response to the IRFA. There were no comments filed in response to the
IRFA.
90. Response to Comments by the Chief Counsel for Advocacy of the
Small Business Administration. Pursuant to the Small Business Jobs Act
of 2010, which amended the RFA, the Commission is required to respond
to a comments filed by the Chief Counsel for Advocacy of the Small
Business Administration (SBA), and to provide a detailed statement of
any change made to the proposed rules as a result of those comments.
The Chief Counsel did not file any comments in response to the proposed
rules in this proceeding.
91. Description and Estimate of the Number of Small Entities to
Which the Rules Apply. The RFA directs agencies to provide a
description of, and where feasible, an estimate of the number of
[[Page 32236]]
small entities that may be affected by the proposed rule revisions, if
adopted. The RFA generally defines the term ``small entity'' as having
the same meaning as the terms ``small business,'' ``small
organization,'' and ``small governmental jurisdiction.'' In addition,
the term ``small business'' has the same meaning as the term ``small
business concern'' under the Small Business Act (SBA). A small business
concern is one which: (1) Is independently owned and operated; (2) is
not dominant in its field of operation; and (3) satisfies any
additional criteria established by the SBA. Below, the Commission
provides a description of such small entities, as well as an estimate
of the number of such small entities, where feasible.
92. Television Broadcasting. This U.S. Economic Census category
comprises establishments primarily engaged in broadcasting images
together with sound. These establishments operate television broadcast
studios and facilities for the programming and transmission of programs
to the public. These establishments also produce or transmit visual
programming to affiliated broadcast television stations, which in turn
broadcast the programs to the public on a predetermined schedule.
Programming may originate in their own studio, from an affiliated
network, or from external sources. The SBA has created the following
small business size standard for such businesses: Those having $41.5
million or less in annual receipts. The 2012 Economic Census reports
that 751 firms in this category operated in that year. Of that number,
656 had annual receipts of $25 million or less, 25 had annual receipts
between $25 million and $49,999,999 and 70 had annual receipts of $50
million or more. Based on these data, the Commission estimates that the
majority of commercial television broadcast stations are small entities
under the applicable size standard.
93. Additionally, the Commission has estimated the number of
licensed commercial television stations to be 1,374. Of this total,
1,269 stations (or 92%) had revenues of $41.5 million or less in 2020,
according to Commission staff review of the BIA Kelsey Inc. Media
Access Pro Television Database (BIA) on April 20, 2021, and therefore
these stations qualify as small entities under the SBA definition. In
addition, the Commission estimates the number of noncommercial
educational stations to be 384. The Commission does not compile and
does not have access to information on the revenue of NCE stations that
would permit it to determine how many such stations would qualify as
small entities. There are also 386 Class A stations. Given the nature
of this service, the Commission presumes that all of these stations
qualify as small entities under the applicable SBA size standard.
94. Radio Stations. This U.S. Economic Census category comprises
establishments primarily engaged in broadcasting aural programs by
radio to the public. Programming may originate in the establishment's
own studio, from an affiliated network, or from external sources. The
SBA has created the following small business size standard for such
businesses: Those having $41.5 million or less in annual receipts.
Economic Census data for 2012 show that 2,849 firms in this category
operated in that year. Of that number, 2,806 operated with annual
receipts of less than $25 million per year, 17 with annual receipts
between $25 million and $49,999,999 million and 26 with annual receipts
of $50 million or more. Based on these data, the Commission estimates
that the majority of commercial radio broadcast stations were small
under the applicable SBA size standard.
95. The Commission has estimated the number of licensed commercial
AM radio stations to be 4,546 and the number of commercial FM radio
stations to be 6,682 for a total of 11,228 commercial stations. Of this
total, 11,227 stations (or 99%) had revenues of $41.5 million or less
in 2020, according to Commission staff review of the BIA Kelsey Inc.
Media Access Pro Television Database (BIA) on April 20, 2021, and
therefore these stations qualify as small entities under the SBA
definition. In addition, there were 4,213 noncommercial educational FM
stations. The Commission does not compile and does not have access to
information on the revenue of NCE radio stations that would permit it
to determine how many such stations would qualify as small entities.
96. In assessing whether a business concern qualifies as small
under the above definition, business (control) affiliations must be
included. The Commission's estimate, therefore, likely overstates the
number of small entities that might be affected by its action because
the revenue figure on which it is based does not include or aggregate
revenues from affiliated companies. In addition, an element of the
definition of ``small business'' is that the entity not be dominant in
its field of operation. The Commission is unable at this time to define
or quantify the criteria that would establish whether a specific radio
or television station is dominant in its field of operation.
Accordingly, the estimate of small businesses to which the proposed
rules may apply does not exclude any radio or television station from
the definition of small business on this basis and is therefore
possibly over-inclusive.
97. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements. The R&O adopts rules that require a specific
disclosure at the time of broadcast if material aired pursuant to the
lease of time on the station has been sponsored, paid for, or, in the
case of political programming or programming involving a controversial
issue, furnished for free as an inducement to air by a ``foreign
governmental entity.'' As described above, the term ``foreign
governmental entity'' is defined by reference to existing definitions
in the Foreign Agents Registration Act of 1938 as amended (FARA) and
Section 722 of the Communications Act of 1934, as amended (the Act).
The R&O requires that stations use the following standard disclosure:
The [following/preceding] programming was [sponsored, paid for,
or furnished,] either in whole or in part, by [name of foreign
governmental entity] on behalf of [name of foreign country].
In addition, recognizing that FARA requires a standard disclosure, the
R&O simplifies compliance by allowing broadcasters, including small
broadcasters, to pass through any required FARA label included with the
programming, so long as it also adds the name of the foreign country
involved in providing the programming. The R&O concludes that the FARA
disclosure with the addition of the country name satisfies the need to
provide viewers and listeners greater insight regarding the source of
foreign government-provided programming. To further reduce compliance
burdens for broadcasters, including small broadcasters, the size,
frequency, and duration of the required disclosure generally matches
size, frequency and duration requirements for other types of
programming requiring sponsorship identification.
98. In response to requests from broadcasters, including small
broadcasters, the R&O details what is required of broadcasters to meet
the ``reasonable diligence'' standard contained in section 317(c) of
the Act so that broadcasters can determine if a foreign sponsorship
identification disclosure is needed. As described above, the R&O lists
five specific steps broadcasters must take to satisfy the standard. The
R&O states that searches of the FARA database may require more than
simply reviewing the initial
[[Page 32237]]
screens that appear on the list, but rather may also necessitate
reviewing materials filed as part of an agent's registration and using
whatever search features are available to investigate the list's
contents. Licensees should also check if the lessee's name appears in
the Commission's semi-annual reports of U.S.-based foreign media
outlets. The R&O also requires, that, at regular intervals, the
licensee should memorialize the results of its diligence in some manner
for its own records and maintain this documentation for the remainder
of the then-current license term or one year, whichever is longer. The
R&O clarifies that, under the revised rules, the lessee of the airtime,
in accordance with sections 507(b) and (c) of the Act, also holds an
independent obligation to communicate information to the licensee
relevant to determining whether a disclosure is needed.
99. In the interest of ensuring transparency for viewers and
listeners of foreign government-provided programming, the R&O requires
that, if the primary language of the programming is other than English,
the disclosure statement should be presented in the primary language of
the programming. The disclosure for televised programming should be in
letters equal to or greater than four percent of the vertical picture
height and be visible for not less than four seconds to ensure
readability. As this requirement tracks existing rules for televised
political advertisements, television licensees are familiar with this
format, minimizing their compliance burdens. For radio broadcasts, the
R&O incorporates the existing DOJ interpretation for programming
provided by FARA registrants: That the disclosure shall be audible. The
R&O requires that the disclosure be made at both the beginning and end
of the programming, and, consistent with an existing requirement for
``political broadcast matter,'' for any broadcast of 5 minutes or less,
only once. Finally, for programming longer than sixty minutes, the
disclosure must be made at regular intervals during the broadcast, but
no less frequently than once every sixty minutes. The R&O finds that
periodic announcements are necessary, particularly in those instances
where a foreign governmental entity is continually broadcasting
programming without an identifiable beginning or end, such as through a
lease of 100% of a station's airtime. Other than this final requirement
for longer programming, the new rules are consistent with existing
sponsorship identification rules and are thus familiar to broadcasters
to reduce compliance burdens.
100. Consistent with the NPRM, the R&O adopts a requirement that
stations airing foreign government-provided programming must place
copies of the disclosures in their Online Public Information Files
(OPIFs), in a standalone folder marked as ``Foreign Government-Provided
Programming Disclosures'' so that the material is readily identifiable
to the public. The R&O adopts the proposal discussed in the NPRM, that,
to the extent the foreign programming consists of a political matter or
matter involving the discussion of a controversial issue of public
importance, licensees obtain and disclose in their OPIFs a list of the
persons operating the foreign governmental entity providing the
programming. In response to broadcaster concerns about burdens, the R&O
also does not adopt the NPRM's ``as soon as possible'' standard for
updating OPIFs contained in Sec. 73.1943 of existing rules, nor
interpret this phrase to mean ``within twenty-four hours of the
material being broadcast.'' Rather, for frequency of updating OPIFs,
the R&O adopts rules that align with an existing requirement to update
the TV Issues/Programs Lists on a quarterly basis, as this will
minimize the need for licensees to track different public filing
requirements. The R&O also adopts the same OPIF two-year retention
period as currently exists for the retention of lists of the executives
of any entity that sponsored programming concerning a political or
controversial matter.
101. Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered. The RFA requires an
agency to describe any significant alternatives that it has considered
in adopting its rules, which may include the following four
alternatives (among others): (1) The establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use
of performance, rather than design, standards; and (4) an exemption
from coverage of the rule, or any part thereof, for small entities.
102. While the NPRM proposed that foreign sponsorship disclosure
rules should apply in any circumstances in which a foreign governmental
entity directly or indirectly provided material for broadcast or
furnished material to a station free of charge (or at nominal cost) as
an inducement to broadcast such material, the R&O narrows the rule to
address specifically those circumstances in which a foreign
governmental entity is programming a U.S. broadcast station pursuant to
the lease of airtime. The rules adopted in the R&O require a specific
disclosure at the time of broadcast if material aired pursuant to the
lease of time on the station has been sponsored, paid for, or, in the
case of political programming or programming involving a controversial
issue, furnished for free as an inducement to air by a foreign
governmental entity. The focus on leasing agreements narrows the
application of the disclosure rules significantly, thereby minimizing
the burden on broadcasters while ensuring that viewers and listeners
are sufficiently informed as to the origin of material broadcast on
stations when foreign governmental entities are providing programming.
Most, and possibly all, noncommercial educational NCE programming
arrangements will fall outside the ambit of the narrowed rules given
limitations on the ability of NCE stations to engage in leasing
arrangements. Also, while the NPRM proposed to include ``foreign
missions,'' as designated pursuant to the Foreign Missions Act, within
the definition of foreign governmental entities that would trigger
foreign sponsorship identification, based on broadcaster concerns
regarding the difficulty and compliance burden of including these
entities, the R&O eliminates then from the definition.
103. Additionally, based on comments from broadcasters, including
small broadcasters, the R&O clarifies compliance obligations to ensure
that, under the narrowed scope of the rules, they are no more
burdensome than necessary to serve the vital need for transparency
about who is attempting to influence viewers and listeners. The R&O
details what is required of broadcasters to meet the ``reasonable
diligence'' standard contained in section 317(c) of the Act so that
broadcasters can determine if a foreign sponsorship identification
disclosure is needed. The R&O lists specific steps broadcasters must
take to satisfy the standard. The R&O also advises broadcasters to
include a provision in their lease agreements requiring the lessee to
notify the broadcaster about any change in the lessee's status such as
to trigger the foreign sponsorship identification rules. The R&O also
adopts broadcaster suggestions to reduce compliance burdens by
matching, to the extent possible, disclosure language, size, frequency
and duration requirements
[[Page 32238]]
contained in existing sponsorship identification rules and allowing
broadcasters to satisfy the new foreign sponsorship identification
requirements by simply passing through existing FARA programming labels
if they also disclose the country involved with provision of the
programming and comport with the size and frequency requirements
contained in the R&O. Similarly, in response to comments from
broadcasters, including small broadcasters, to the extent possible, the
Commission matches obligations to place and update disclosures in
station OPIFs to other broadcaster OPIF obligations. Broadcasters have
indicated that implementing such changes would mean the burden on
broadcasters would be considerably less and more appropriate.
104. The NPRM sought comment on the benefits and costs associated
with adopting foreign government-provided programming sponsorship
identification rules and requested specific data and analysis in
support of any claimed costs and benefits. No commenters provided
quantified calculations of the benefits or costs of the proposed rules.
Thus, the R&O finds that by narrowing the scope of the programming for
which foreign governmental entity sponsorship is required and
minimizing compliance burdens as described in the preceding paragraphs,
the costs for broadcasters, including small broadcasters, associated
with the rules are reduced significantly from the initial proposal.
Research reviewed by Commission staff also suggests that there are
measurable benefits to sponsorship identification disclosures.
Therefore, the R&O finds that the costs, including the costs for small
businesses, associated with adopting the rules, as modified by the R&O,
do not outweigh the substantial public benefits associated with
transparency regarding the source of programming heard or viewed by the
American public.
105. Report to Congress. The Commission will send a copy of this
R&O, including this FRFA, in a report to Congress and the Government
Accountability Office pursuant to the Small Business Regulatory
Enforcement Fairness Act of 1996. In addition, the Commission will send
a copy of the R&O, including the FRFA, to the Chief Counsel for
Advocacy of the Small Business Administration. A copy of the R&O and
FRFA (or summaries thereof) will also be published in the Federal
Register.
106. Federal Rules that May Duplicate, Overlap, or Conflict with
the Proposed Rule. The R&O contains requirements that may somewhat
overlap with, but do not duplicate, DOJ rules for labelling of
broadcast programming provided by an ``agent of a foreign principal,''
as that term is defined in the Foreign Agents Registration Act.
107. Ordering Clauses. Accordingly, it is ordered that, pursuant to
the authority found in sections 1, 2, 4(i), 4(j), 303(r), 317, 325(c),
403, and 507 of the Communications Act, 47 U.S.C. 151, 152, 154(i),
154(j), 303(r), 317, 325(c), 403, and 508 this Report and Order is
adopted and shall be effective 30 days after publication in the Federal
Register.
108. It is further ordered that part 73 of the Commission's rules
is amended as set forth in the Final Rules. The rule changes to Sec.
73.1212 adopted herein contain new or modified information collection
requirements subject to OMB review under the Paperwork Reduction Act.
The Commission directs the Media Bureau to announce the effective date
for those information collections in a document published in the
Federal Register after the completion of OMB review and directs the
Media Bureau to cause Sec. 73.1212 to be revised accordingly.
109. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Report and Order, including the Final Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration.
110. It is further ordered that the Commission shall send a copy of
this Report and Order in a report to be sent to Congress and the
Government Accountability Office pursuant to the Congressional Review
Act, see 5 U.S.C. 801(a)(1)(A).
List of Subjects in 47 CFR Part 73
Radio, Reporting and recordkeeping requirements, Television.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 73 as follows:
PART 73--RADIO BROADCAST SERVICES
0
1. The authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334,
336, 339.
0
2. Amend Sec. 73.1212 by adding paragraphs (j) through (l) to read as
follows:
Sec. 73.1212 Sponsorship identification; list retention; related
requirements.
* * * * *
(j)(1)(i) Where the material broadcast consistent with paragraph
(a) or (d) of this section has been aired pursuant to the lease of time
on the station and has been provided by a foreign governmental entity,
the station, at the time of the broadcast, shall include the following
disclosure:
The [following/preceding] programming was [sponsored, paid for,
or furnished], either in whole or in part, by [name of foreign
governmental entity] on behalf of [name of foreign country].
(ii) If the material broadcast contains a ``conspicuous statement''
pursuant to the Foreign Agents Registration Act of 1938 (FARA) (22
U.S.C. 614(b)), such conspicuous statement will suffice for purposes of
this paragraph (j)(1) if the conspicuous statement also contains a
disclosure about the foreign country associated with the individual/
entity that has sponsored, paid for, or furnished the material being
broadcast.
(2) The term ``foreign governmental entity'' shall include
governments of foreign countries, foreign political parties, agents of
foreign principals, and United States-based foreign media outlets.
(i) The term ``government of a foreign country'' has the meaning
given such term in the Foreign Agents Registration Act of 1938 (22
U.S.C. 611(e)).
(ii) The term ``foreign political party'' has the meaning given
such term in the Foreign Agents Registration Act of 1938 (22 U.S.C.
611(f)).
(iii) The term ``agent of a foreign principal'' has the meaning
given such term in the Foreign Agents Registration Act of 1938 (22
U.S.C. 611(c)), and who is registered as such with the Department of
Justice, and whose ``foreign principal'' is a ``government of a foreign
country,'' a ``foreign political party,'' or directly or indirectly
operated, supervised, directed, owned, controlled, financed, or
subsidized by a ``government of a foreign country'' or a ``foreign
political party'' as defined in paragraphs (j)(2)(i) and (ii) of this
section, and that is acting in its capacity as an agent of such
``foreign principal''.
(iv) The term ``United States-based foreign media outlet'' has the
meaning given such term in section 722(a) of the Communications Act of
1934 (47 U.S.C. 624(a)).
(3) The licensee of each broadcast station shall exercise
reasonable diligence to ascertain whether the
[[Page 32239]]
foreign sponsorship disclosure requirements in paragraph (j)(1) of this
section apply at the time of the lease agreement and at any renewal
thereof, including:
(i) Informing the lessee of the foreign sponsorship disclosure
requirement in paragraph (j)(1) of this section;
(ii) Inquiring of the lessee whether the lessee falls into any of
the categories in paragraph (j)(2) of this section that qualify the
lessee as a foreign governmental entity;
(iii) Inquiring of the lessee whether the lessee knows if anyone
involved in the production or distribution of the programming that will
be aired pursuant to the lease agreement, or a sub-lease, qualifies as
a foreign governmental entity and has provided some type of inducement
to air the programming;
(iv) 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; and
(v) Memorializing the inquiries in paragraphs (j)(3)(i) through
(iv) of this section to track compliance therewith and retaining such
documentation in the licensee's records for either the remainder of the
then-current license term or one year, whichever is longer, so as to
respond to any future Commission inquiry.
(4) In the case of any video programming, the foreign governmental
entity and the country represented shall be identified with letters
equal to or greater than four percent of the vertical picture height
that air for not less than four seconds.
(5) At a minimum, the announcement required by paragraph (j)(1) of
this section shall be made at both the beginning and conclusion of the
programming. For programming of greater than sixty minutes in duration,
an announcement shall be made at regular intervals during the
broadcast, but no less frequently than once every sixty minutes.
(6) Where the primary language of the programming is other than
English, the disclosure statement shall be made in the primary language
of the programming. If the programming contains a ``conspicuous
statement'' pursuant to the Foreign Agents Registration Act of 1938 (22
U.S.C. 614(b)), and such conspicuous statement is in a language other
than English so as to conform to the Foreign Agents Registration Act of
1938 (22 U.S.C. 611 et seq.), an additional disclosure in English is
not needed.
(7) A station shall place copies of the disclosures required by
this paragraph (j) and the name of the program to which the disclosures
were appended in its online public inspection file on a quarterly basis
in a standalone folder marked as ``Foreign Government-Provided
Programming Disclosures.'' The filing must state the date and time the
program aired. In the case of repeat airings of the program, those
additional dates and times should also be included. Where an aural
announcement was made, its contents must be reduced to writing and
placed in the online public inspection file in the same manner.
(k) The requirements in paragraph (j) of this section shall apply
to programs permitted to be delivered to foreign broadcast stations
under an authorization pursuant to the section 325(c) of the
Communications Act of 1934 (47 U.S.C. 325(c)) if any part of the
material has been sponsored, paid for, or furnished for free as an
inducement to air on the foreign station by a foreign governmental
entity. A section 325(c) permit holder shall place copies of the
disclosures required along with the name of the program to which the
disclosures were appended in the International Bureau's public filing
System (IBFS) under the relevant IBFS section 325(c) permit file. The
filing must state the date and time the program aired. In the case of
repeat airings of the program, those additional dates and times should
also be included. Where an aural announcement was made, its contents
must be reduced to writing and placed in the IBFS in the same manner.
(l) Paragraphs (j) and (k) of this section contain information-
collection and recordkeeping requirements. Compliance with paragraphs
(j) and (k) of this section shall not be required until after review by
the Office of Management and Budget. The Commission will publish a
document in the Federal Register announcing compliance dates and
removing this paragraph (l) accordingly.
0
3. Amend Sec. 73.3526 by adding paragraph (e)(19) to read as follows:
Sec. 73.3526 Online public inspection file of commercial stations.
* * * * *
(e) * * *
(19) Foreign sponsorship disclosures. Documentation sufficient to
demonstrate that the station is continuing to meet the requirements set
forth at Sec. 73.1212(j)(7).
* * * * *
0
4. Amend Sec. 73.3527 by adding paragraph (e)(15) to read as follows:
Sec. 73.3527 Online public inspection file of noncommercial
educational stations.
* * * * *
(e) * * *
(15) Foreign sponsorship disclosures. Documentation sufficient to
demonstrate that the station is continuing to meet the requirements set
forth at Sec. 73.1212(j)(7).
* * * * *
[FR Doc. 2021-12207 Filed 6-16-21; 8:45 am]
BILLING CODE 6712-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.