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Rule2024-15259

Sponsorship Identification Requirements for Foreign Government-Provided Programming

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Published

July 16, 2024

Effective

August 15, 2024

Issuing agencies

Federal Communications Commission

Abstract

In this document, the Federal Communications Commission (Commission) takes steps to ensure clear and reasonable foreign sponsorship identification rules, which require radio and television broadcast stations to inform audiences when programming aired pursuant to a lease of airtime on the station is sponsored by a foreign governmental entity. The document replaces a previous requirement of the rules with a new approach that provides licensees with two options for demonstrating that they have sought to obtain the information needed to determine whether the programming being provided by a lessee is sponsored by a foreign governmental entity. The revised approach addresses concerns broadcasters had regarding the burdens and complexity of the rule and clarifies when the rule applies.

Full Text

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<title>Federal Register, Volume 89 Issue 136 (Tuesday, July 16, 2024)</title>
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[Federal Register Volume 89, Number 136 (Tuesday, July 16, 2024)]
[Rules and Regulations]
[Pages 57775-57793]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-15259]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket No. 20-299; FCC 24-61; FR ID 228169]

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) takes steps to ensure clear and reasonable foreign
sponsorship identification rules, which require radio and television
broadcast stations to inform audiences when programming aired pursuant
to a lease of airtime on the station is sponsored by a foreign
governmental entity. The document replaces a previous requirement of
the rules with a new approach that provides licensees with two options
for demonstrating that they have sought to obtain the information
needed to determine whether the programming being provided by a lessee
is sponsored

[[Page 57776]]

by a foreign governmental entity. The revised approach addresses
concerns broadcasters had regarding the burdens and complexity of the
rule and clarifies when the rule applies.

DATES: Amendatory instruction 2 (47 CFR 73.1212(j)(8) and (k)) is
effective August 15, 2024, and amendatory instruction 3 (47 CFR
73.1212(j)(3)) is delayed indefinitely. The Commission will publish a
document in the Federal Register announcing the effective date.

FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, please contact Radhika Karmarkar of the Media Bureau,
Industry Analysis Division, <a href="/cdn-cgi/l/email-protection#aaf8cbcec2c3c1cb84e1cbd8c7cbd8c1cbd8eaccc9c984cdc5dc"><span class="__cf_email__" data-cfemail="e2b083868a8b8983cca983908f8390898390a2848181cc858d94">[email&#160;protected]</span></a>, (202) 418-1523.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second
Report and Order (Second R&O), FCC 24-61, in MB Docket No. 20-299,
adopted on May 31, 2024, and released on June 10, 2024. The complete
text of this document is available electronically via the search
function on the FCC's website at <a href="https://docs.fcc.gov/public/attachments/FCC-24-61A1.pdf">https://docs.fcc.gov/public/attachments/FCC-24-61A1.pdf</a>.

Synopsis

I. Introduction

1. The Second R&O took steps to ensure clear and reasonable foreign
sponsorship identification rules. In April 2021, the Commission issued
a Report and Order (First R&O) (86 FR 32221, June 17, 2021) in the
above-captioned proceeding adopting a requirement that radio and
television stations broadcast clear disclosures for programming that is
provided by a foreign governmental entity and set forth the procedures
for exercising reasonable diligence to determine whether such a
disclosure is needed. The Commission took this action in response to
reports that U.S. broadcast stations were transmitting undisclosed
foreign governmental programming, against the backdrop of over ninety
years of sponsorship identification regulations that ensure the public
is informed when airtime has been purchased on broadcast stations in an
effort to persuade audiences.
2. In the Second R&O, the Commission addressed a ruling by the U.S.
Court of Appeals for the District of Columbia Circuit, National
Association of Broadcasters, et al., v. FCC, 39 F.4th 817, 820 (D.C.
Cir. 2022) (NAB v. FCC), that vacated one of the foreign sponsorship
identification requirements established in the First R&O. The
Commission replaced the vacated verification requirement with an
approach that avoids the investigatory obligation on the part of
licensees that was at issue in NAB v. FCC. The new approach provides
licensees with two options for demonstrating that they have met their
duty of inquiry in seeking to obtain the information needed to
determine whether the programming being provided by a lessee is
sponsored by a foreign governmental entity. The adopted approach
addresses concerns about burdens and complexity raised by commenters in
response to the second notice of proposed rulemaking (Second NPRM) (87
FR 68960, November 17, 2022) in the above-captioned proceeding.
3. Furthermore, in this order, the Commission clarified that its
foreign sponsorship identification rules do not apply to sales of
advertising for commercial goods and services to the extent such
programming falls within the exemption contained in 47 CFR 73.1212(f)
of its general sponsorship identification rules. In addition, the
Commission found that its foreign sponsorship identification rules will
not apply to political candidate advertisements, but will apply to
issue advertisements and paid public service announcements (``paid
PSAs''). It also confirmed that the rule changes do not alter its
finding in the First R&O that noncommercial and educational broadcast
stations (NCEs) are not likely to fall within the ambit of the foreign
sponsorship identification rules. The Commission declined to create an
exemption from the rules for religious programming and locally produced
and/or distributed programming. It also concluded that, when a lessee
and licensee enter into recurring leases for the same programming, the
licensee will be required to exercise its reasonable diligence
obligations under the rule only once per year with respect to that
particular lessee and that particular programming. With respect to the
adopted rule changes, the Commission grandfathered lease agreements
already in effect at the time of the required compliance date for these
newly-adopted modifications, determining that such leases will need to
come into compliance either at the time of renewal or when the parties
to the agreement enter into a new lease. Finally, the Commission
clarified the obligations of section 325(c) permittees under the
foreign sponsorship identification rules.

II. Background

4. Section 317 of the Communications Act and the Commission's
implementing regulations under 47 CFR 73.1212 have long required
broadcast licensees to inform their audiences when programming is being
aired in exchange for payment or compensation to the station. While
section 310(a) of the Act prohibits foreign governments and their
representatives from holding a broadcast license, there is no
limitation on their ability to enter into a contract with the licensee
of a station to air programming of their choosing, or even to lease the
entire capacity of a radio or television station. In the First R&O, the
Commission amended the then existing sponsorship identification rules
by adding a requirement that licensees disclose the identity of any
foreign governmental entities that lease time on their stations. The
disclosure requirements apply to leased programming because the record
in the underlying proceeding identified leased airtime as the primary
means by which foreign governmental entities are accessing U.S.
airwaves to persuade the American public without adequately disclosing
the true sponsor.
5. The First R&O defined ``foreign governmental entity'' using
existing definitions, statutes, and regulations. Pursuant to 47 CFR
73.1212(j)(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.''
Section 73.1212(j)(2)(i) through (iv) of the Commission's rules set out
definitions for ``government of a foreign country'', ``foreign
political party'', ``agent of a foreign principal'', and ``United
States-based foreign media outlet''.
6. The foreign sponsorship identification rules apply in two
circumstances. First, a prescribed disclosure is required when a
foreign governmental entity has sponsored, paid for, or furnished
programming that is aired on a radio or television station pursuant to
a lease agreement. Section 73.1212(j)(1)(i) requires that foreign
government-provided programming furnished consistent with Sec.
73.1212(a) 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].'' Second, if a foreign governmental
entity provides the programming for free, or for nominal compensation,
as an inducement to air the programming, the prescribed disclosure is
required if the programming is political or involves discussion of a
controversial issue.
7. The foreign sponsorship identification rules neither prevent nor
restrict the broadcast of foreign government-provided programming, but
rather, are intended solely to inform

[[Page 57777]]

audiences about the source of any such programming so that they may be
more informed and savvy consumers of the material. As the Commission
stated in the First R&O, ``[t]he 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.''
8. Section 317(c) of the Act requires licensees to exercise
``reasonable diligence to obtain,'' from their employees and persons
with whom they deal directly, information to enable the licensees to
make the required sponsorship identification announcement. To satisfy
this reasonable diligence standard with regard to foreign sponsorship
identification, the current rules under 47 CFR 73.1212(j)(3) require a
licensee to take each of the following actions, both when entering into
a new lease agreement and renewing a lease agreement:

(1) Inform the lessee of the foreign sponsorship disclosure
requirement.
(2) Ask the lessee whether it falls into any of the categories
that would qualify it as a ``foreign governmental entity.''
(3) Ask the lessee whether it knows if any individual/entity
further back in the chain of producing/distributing the programming
to be aired qualifies as a foreign governmental entity and has
provided some type of inducement to air the programming.
(4) Memorialize the above-listed inquiries and retain such
memorialization in its records for the remainder of the license term
or for one year, whichever is longer.

These requirements apply regardless of whether the programming is
provided pursuant to a lease agreement for consideration under section
317(a)(1) or is provided for free or for nominal compensation under
section 317(a)(2) and contains political programming or programming
involving a controversial issue. The rules also apply to any
programming broadcast pursuant to a section 325(c) permit. The
Commission initially adopted an additional requirement that, as
discussed in further detail below, has been vacated by the U.S. Court
of Appeals for the District of Columbia Circuit. NAB v. FCC, 39 F.4th
at 820.

9. While the reasonable diligence requirements of section 317(c)
apply to licensees, section 507 of the Act imposes an obligation on
those involved in the production and/or distribution of program matter
for broadcast to communicate any information known to them about any
money, service or other valuable consideration that any person has paid
or agreed to pay for the inclusion of any matter as part of a program.
The disclosure obligation extends beyond the lessee itself to any
person connected with the production, preparation, or supply of the
programming.
10. On July 19, 2021, the ABC Television Affiliates Association,
CBS Television Network Affiliates Association, FBC Television
Affiliates Association, and NBC Television Affiliates (collectively,
the Affiliates) filed a Petition for Clarification. The Affiliates
assert that the exemption in the First R&O of ``traditional, short-form
advertising'' from the foreign sponsorship identification rules creates
confusion because the term has no established meaning in the broadcast
industry. In their petition, the Affiliates argue that the Commission
should clarify that the foreign sponsorship identification rules do not
apply when a licensee sells time to advertisers in the normal course of
business, regardless of the advertisement's length.
11. On August 13, 2021, the National Association of Broadcasters
(NAB), the Multicultural Media, Telecom and internet Council (MMTC),
and the National Association of Black Owned Broadcasters (NABOB)
(collectively, Petitioners) filed a Petition for Review of the First
R&O with the D.C. Circuit. Petitioners challenged the Commission's
authority to impose one of the reasonable diligence requirements
contained in the First R&O. Specifically, in addition to the four
reasonable diligence requirements listed above, the First R&O had
required licensees to confirm the lessee's status, at the time of
entering into a lease agreement and at renewal, by consulting the
Department of Justice's Foreign Agent Registration Act (FARA) website
and the Commission's semi-annual U.S.-based foreign media outlets
reports. On July 12, 2022, the D.C. Circuit vacated this verification
requirement, holding that it exceeded the Commission's authority under
section 317(c). NAB v. FCC, 39 F.4th at 820. The D.C. Circuit stated
that section 317(c) imposes on licensees only a duty of inquiry and not
a duty of investigation. The court left in place the remaining four
requirements needed to satisfy the statutory reasonable diligence
standard.
12. On October 6, 2022, the Commission released the Second NPRM
containing proposals to address the gap left by the D.C. Circuit's
vacatur of the verification requirement contained in the foreign
sponsorship identification rules. The Second NPRM proposed two
alternatives to replace the vacated requirement that licensees
independently confirm the lessee's status. Under the first proposal,
each licensee had to certify that it had informed its lessee of the
foreign sponsorship identification rules and obtained, or sought to
obtain, a certification from its lessee stating whether the lessee is
or is not a ``foreign governmental entity.'' In turn, the lessee would
submit a certification in response to the licensee's request. To
minimize compliance burdens, the Commission proposed that licensees and
lessees use standardized certification language, as set forth in the
Second NPRM. Consistent with the existing requirement that licensees
upload into their online public inspection files (OPIFs) their lease
agreements, the Commission tentatively concluded that licensees should
upload both their own and their lessees' completed certifications into
their OPIFs, along with the associated lease agreements.
13. The Second NPRM also contained a second proposal based on an
approach raised during oral argument in NAB v. FCC as a possible
alternative to the rule provision it ultimately vacated. Under this
proposal, in lieu of the licensee independently confirming the lessee's
status by checking the Department of Justice's FARA website, or the
Commission's U.S.-based foreign media outlet reports site, the licensee
would ask the lessee to provide screenshots showing the results of the
lessee's search for its name on these sites. In addition, the Second
NPRM also sought comment on the need to apply the proposals contained
therein to section 325(c) permit holders. Finally, it provided another
opportunity for comment on the Affiliates' Petition for Clarification
regarding the treatment of advertisements.

III. Discussion

14. The Commission first determined that licensees must pursue one
of two approaches to address the gap left by the D.C. Circuit's vacatur
of the independent verification requirement. It then addressed
questions raised in the record about the application of the foreign
sponsorship identification rules to different types of broadcast
programming. It then explained when licensees must comply with the
newly-adopted requirements and grandfathers lease agreements already in
existence at the time of the compliance date of the new rules for the
duration of the lease term, determining that existing leases will have
to comply with the new rules at the time of renewal or when the parties
enter into a new agreement, whichever is earlier. It clarified that its
foreign sponsorship identification rules will not apply to sales of
advertising for commercial goods and services to the extent that such
programming would

[[Page 57778]]

not otherwise be subject to the general sponsorship disclosure rules,
as set forth in 47 CFR 73.1212(f). The Commission also found that the
foreign sponsorship identification rules will not apply to political
candidate advertisements. It did, however, determine that the foreign
sponsorship identification rules will apply to issue advertisements and
paid PSAs. It found that it is inconsistent with its goal of disclosing
the source of foreign government-provided programming, and in some
instances the First Amendment, to exclude from the ambit of its rules
locally produced and/or locally distributed programming and religious
programming. It also described how the requirements laid out in the
Second R&O will apply to section 325(c) permit holders. Lastly, it
found that its actions will not inhibit diverse entrants from
participating in the broadcast media marketplace.

A. Obtaining Information From Lessees

15. The Second R&O gives broadcast licensees greater flexibility
than proposed in the Second NPRM with respect to how they must seek to
obtain from lessees the information needed to determine whether a
foreign sponsorship disclosure is needed. Specifically, a licensee may
choose between one of two options to comply with the rule. Neither of
these two options imposes an investigatory duty upon licensees or holds
them responsible for the truth of the information they obtain. Under
the first option, both the licensee and the lessee must complete a
written certification either using the standardized certification
language contained in Appendices C and D of the Second R&O, and set
forth below, or using their own language, as long as the certifications
written in their own language contain the inquiries set out in 47 CFR
73.1212(j)(3), pursuant to the First R&O. Under the second option, the
licensee must ask the lessee to provide screenshots showing the search
results generated by the lessee's search for its own name on two
Federal Government websites.
16. In all other respects, under this second option, the licensee
must follow the other requirements contained in the existing foreign
sponsorship identification rules. Consistent with the existing foreign
sponsorship identification rules, the licensee must inform the lessee
about the foreign sponsorship disclosure requirement, inquire whether
the lessee is either a ``government of a foreign country'' or a
``foreign political party,'' and inquire about the lessee's knowledge
of anyone further back in the chain of producing/distributing the
programming who qualifies as a ``foreign governmental entity'' and may
have provided an inducement to air the programming such as to trigger
the need for a foreign sponsorship disclosure. See 47 CFR 73.1212(j)(i)
through (iii). Finally, also consistent with the existing foreign
sponsorship identification rules, the licensee must memorialize those
inquiries in some manner. Note, however, that the existing
``memorialization'' requirement has been moved from Sec.
73.1212(j)(3)(v) of the Commission's rules to revised Sec.
73.1212(j)(3)(iv), which replaces the vacated Sec. 73.1212(j)(3)(iv).
17. Given the concerns raised in the record about the burdens
associated with the proposals in the Second NPRM to replace the
independent verification requirement, the requirements adopted in the
Second R&O offer licensees more flexibility by giving them a choice of
approaches and by allowing them to devise their own certification
language. Moreover, the Commission reduced compliance burdens and made
the new requirements easier to implement by offering simple
certification templates. It also allowed a licensee to inquire about a
lessee's foreign governmental entity status only once a year when the
lessee and programming are the same (e.g., weekly broadcasts of church
services from the same church), assuming there is no change in the
lessee's status and the lessee has not become aware of any change in
the individuals/entities further back in the programming's production/
distribution chain that would trigger the need for a foreign
sponsorship disclosure.
18. The Commission declined to adopt several proposals contained in
the Second NPRM in order to address concerns raised in the record about
compliance costs and burdens. First, a licensee need not notify the
Media Bureau when a lessee fails to respond to the licensee's queries.
Second, licensees will not be required to retain certifications and
screenshots in the licensees' OPIFs that are hosted by the Commission.
Licensees may either file these records in their OPIFs or in their
internal files. Finally, if a lessee fails to respond, or fails to
respond adequately, to the licensee's request for a certification or
screenshots, the licensee is not prohibited from airing the program.
Nevertheless, if a question arises later about whether a disclosure was
needed, the licensee must be able to demonstrate, in the event of a
fact-specific inquiry by the Commission, that it exercised reasonable
diligence in seeking the information. As explained below, the newly-
adopted requirements are within the Commission's statutory authority
and are consistent with the D.C. Circuit's ruling in NAB v. FCC.
1. Licensees Must Comply With One of Two Approaches
19. Licensees will be required to comply with either one of the two
approaches described below. Although licensees must choose one of these
approaches, they need not choose the same approach for each lease or
renewal agreement, even when the same lessee is involved. Compliance
with one of these two approaches must be at the time of entering into
any new lease agreement or renewing an existing lease agreement, unless
the once-a-year exception described below applies. The Commission
rejected a suggestion to require certifications of compliance with the
foreign sponsorship identification rules only at the time of a
licensee's renewal application.
20. Certification Option. One option available to licensees is the
use of certifications, as described below. The Commission found that
the certification option fills the gap left by the D.C. Circuit's
vacatur of a licensee's requirement to conduct an independent check, by
helping to ensure the credibility of the sponsorship information
provided by the lessee in response to the licensee's inquiries. For
those who would prefer not to pursue the screenshot option discussed
below, the certification approach has the benefit of providing an
alternative means of verification. Moreover, certifications have the
value of reminding lessees of the foreign sponsorship identification
rules and ensuring that they provide above board sponsorship
information to broadcasters.
21. The Commission streamlined significantly the certification
proposal contained in the Second NPRM. Under the adopted certification
option, both a licensee and a lessee must complete a certification
reflecting the communications and inquiries required under the existing
rules. Licensees and lessees will have the option either to use the
streamlined standardized certification language set forth in Appendices
C and D of the Second R&O, and set forth below, or to use language
created by the parties. Rather than the two and a half page
certifications proposed in the Second NPRM, the Commission developed
one-page templates for the licensee and lessee certifications, based on
a straightforward and familiar ``check box'' format. While the
templates do include citations to the legal sources

[[Page 57779]]

defining the various categories of foreign governmental entities, most
licensee and lessee employees should be able to complete the forms
quickly and readily, based upon their existing knowledge and
understanding. The lessee is being asked to sign a certification
regarding its own status. The lessee should already know if it is a
registered FARA agent, or is listed as a U.S.-based foreign media
outlet on the Commission's website, because these registrations/
listings are self-reported. Similarly, a lessee should already know if
it is a government of a foreign country or a foreign political party.
With regard to those further back in the chain of producing and/or
distributing the programming, the lessee is being asked only about its
actual knowledge at the time it signs the certification. It is highly
unlikely that either licensee or lessee should have to engage in any
type of research to respond to the queries contained in the
certifications. These are the same inquiries the Commission adopted in
the First R&O, only formatted now as a certification.
22. If licensees and lessees prefer not to use the Commission's
templates, they may use their own certification language, provided that
language addresses the points listed in 47 CFR 73.1212(j)(3)(i) through
(iii). Several commenters expressed concerns that licensees already
have developed their own certifications based on the existing foreign
sponsorship identification rules and that revising these certifications
would be costly. The Commission is persuaded that self-generated
certifications can fulfill its certification requirements provided
these certifications contain the information and inquiries currently
required by the foreign sponsorship identification rules. Specifically,
a licensee's certification should confirm that the licensee:

(1) informed the lessee of the foreign sponsorship disclosure
requirement;
(2) asked the lessee whether it falls into any of the categories
that would qualify it as a ``foreign governmental entity;''
(3) asked the lessee whether it knows if any individual/entity
further back in the chain of producing and/or distributing the
programming to be aired qualifies as a foreign governmental entity
and has provided some type of inducement to air the programming;
(4) sought a written certification in response from the lessee;
and
(5) obtained the necessary information for a disclosure if one
is required.

A lessee's certification should convey the information needed to
determine whether a disclosure is required and the information needed
for a broadcast disclosure if one is required.

23. Regardless of whether the Commission's templates or a
licensee's and lessee's own certifications are used, both the
licensee's and lessee's certifications must be dated and signed by an
employee or other representative of the entity who can attest to the
fact that these actions were taken. Irrespective of whether a licensee
chooses to use the template certification language or its own language,
licensees are encouraged 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. Because these certification requirements
encapsulate the extant information and inquiry requirements adopted in
the First R&O, it is unlikely that any preexisting certification
language that licensees have employed will require much revision, if
any.
24. Screenshot Option. As an alternative to the certification
option, licensees may choose to ask their lessees for screenshots of
lessees' search results of two Federal Government websites. This option
essentially replaces the verification requirement that the D.C. Circuit
vacated, with the key difference being that the lessee conducts the
searches instead of the licensee. The D.C. Circuit determined that it
was beyond the scope of section 317(c) to require a licensee to
independently verify a lessee's statement that the lessee was not
listed in the Department of Justice's FARA database as a FARA agent or
in the Commission's U.S.-based foreign media outlet reports.
Consequently, consistent with the hypothetical raised during oral
argument before the D.C. Circuit in NAB v. FCC, the Commission now
determined that licensees may ask their lessees to perform those
searches and provide screenshots of the search results. Hence, instead
of asking the lessee to provide a responsive certification regarding
its status, a licensee exercising this option would ask, consistent
with the current foreign sponsorship identification rules, whether the
lessee is a registered FARA agent or is listed in the Commission's
U.S.-based foreign media outlet report. If the lessee responds ``no,''
the licensee would then ask the lessee to provide screenshots showing
the results of lessee's searches of both of these websites. As
discussed below, licensees choosing this option must still comply with
all other aspects of the current rule, as they have been required to do
since the compliance date of the First R&O. Moreover, consistent with
the First R&O, licensees are encouraged to include in their lease
agreements a requirement for lessees to provide notice of any change in
status so as to trigger the need for a foreign sponsorship disclosure.
25. Some commenters have objected to the screenshot approach based
on erroneous assumptions about what such a search requires. The FARA
searches are simple name searches, initiated by merely entering a name
in a search box. As with the requirement that the D.C. Circuit vacated,
if the name search does not generate any results, no further search is
needed. If the name search does generate results, the broadcaster's
duty is to exercise reasonable diligence to ascertain whether the
lessee is subject to a disclosure requirement--precisely what the
statute requires.
26. Moreover, lessees are looking for their own names. A lessee is
not doing a FARA database search to learn whether it is registered,
such as to necessitate experimenting with different iterations of its
name. A lessee, or someone within lessee's organization, would know
whether it is a FARA registrant, or U.S.-based foreign media outlet. As
such, the lessee will only be providing screenshots if, in response to
licensee's queries, the lessee states that it is neither a FARA agent
nor a U.S.-based foreign media outlet. In short, the name search only
entails confirming that the lessee's status is neither a FARA
registrant or a U.S.-based foreign media outlet. The FARA database has
different search fields. The FARA website provides for an ``Active
Registrants'' search link, and the Commission recommends that lessees
use this link because its rules only cover those FARA agents who are
currently registered on the Department of Justice FARA site.
27. Similarly, the Commission's website lists the names of all the
entities that have reported as U.S.-based foreign media outlets, and
all that is required is a screenshot of this list to show whether the
lessee's name appears on the list at the time of the licensee's
required inquiries. No searches or copying of multiple Commission
reports are required, as the list appears on the Commission's U.S.-
based foreign media outlet web page. Lessees need only go to the
following link at the time of entering into a lease agreement or at
renewal and take one photo: <a href="https://www.fcc.gov/united-states-based-foreign-media-outlets">https://www.fcc.gov/united-states-based-foreign-media-outlets</a>.
2. Leases Renewed Within a One-Year Period
28. In response to several commenters' request that the Commission
clarify the scope of the

[[Page 57780]]

term ``lease,'' the Commission affirmed its position in the First R&O
that the term applies to any agreement, written or not, where a
licensee grants to another party the right to program on its station in
exchange for some form of consideration. The term applies irrespective
of the terms or duration of the agreement, and regardless of whether
the parties label or view the agreement as a time brokerage agreement,
a local marketing agreement, or something else. Therefore, an agreement
is not excluded from the definition of ``lease'' for purposes of the
foreign sponsorship identification rules merely because it is an
informal, short term, and/or week-to-week type of agreement. The
Commission addressed the rules' applicability to certain types of
programming, but it clarified that applicability of the rules is not
determined by the title, terms, or duration of an agreement.
29. Nevertheless, in response to commenter concerns about
frequently having to repeat the certification/screenshot process for
short term leases, the Commission concluded that, where a licensee and
the same lessee enter into recurring leases for the same programming
over a one year period, the licensee need only exercise its reasonable
diligence obligations, including the certification or screenshot
process, once per year. This modification of the proposals contained in
the Second NPRM addresses concerns raised in the record about the
burdens associated with the production of multiple certifications/
screenshots over a limited period of time when the lease concerns both
the same lessee and same programming. An example of what is meant by
``same lessee'' and ``same programming'' in this context would be House
of Worship X leasing time for the live broadcast of its weekly
religious service, every Sunday from 11 a.m. till 12 p.m. While the
specific broadcasts would differ week to week, the lessee would
continue to be House of Worship X and the program would be its live
religious service broadcast. By contrast, if House of Worship X decides
to use its regular time slot to provide something other than its weekly
religious service--e.g., a panel discussion with various civic
leaders--that would be considered different programming that would not
fall within the one year exemption, and, thus, would require licensee
and lessee to engage in the reasonable diligence requirements laid out
in the Commission's rules.
3. Lack of Adequate Response From Lessee
30. The Commission decided not to adopt the notification
requirement proposed in the Second NPRM that proposed to require
licensees to notify the Media Bureau about a lessee's failure to
respond. The Commission recognized that there may be instances when,
despite a licensee's efforts to comply with the foreign sponsorship
identification rules, a lessee may fail to respond, or may fail to
respond adequately, to a licensee's queries or request for a
certification/screenshots. Thus, if a licensee does not obtain a
response, or obtains an inadequate response, from the lessee to its
reasonable diligence inquiries, it may continue to air the lessee's
programming and will not be required to report such non-responses to
the Commission. If, however, it is determined at a later date that the
programming should have included a foreign sponsorship disclosure, the
Commission may conduct a fact-specific inquiry to determine whether the
licensee met its obligation under section 317(c) to ``exercise
reasonable diligence to obtain'' the necessary information, such as by
not making further inquiry of the lessee.
4. Recordkeeping Requirement
31. Licensees must retain all of their certifications and
screenshots for the length of the license term or one year, whichever
is longer, pursuant to the record retention requirement contained in 47
CFR 73.1212(j)(3)(v). As noted above, under the screenshot approach,
licensees must still comply with the pre-existing requirement to inform
lessees of the foreign sponsorship identification rules, pursuant to
Sec. 73.1212(j)(3)(i), and make the inquiries contained in Sec.
73.1212(j)(3)(ii) through (iii) of the rules. Also, consistent with the
pre-existing rules, under the screenshot approach a licensee must still
memorialize in some way its compliance with Sec. 73.1212(j)(i) through
(iii).
32. Although the Second NPRM proposed that licensees retain the
certifications and screenshots in their OPIFs, based on commenter
concerns, the Commission was persuaded that licensees should have
greater flexibility regarding the manner in which these documents are
stored. Licensees must already upload their lease agreements into their
OPIFs, along with records of any foreign sponsorship identification
disclosures. As a result, the public already has a mechanism to
determine which programs are provided by foreign governmental entities.
Thus, the Commission found it reasonable to respond to commenter
concerns by providing more flexibility regarding retention of the
certifications and screenshots than initially proposed. Hence,
licensees must retain their certifications and/or screenshots, along
with documentation of inquiries that accompany the screenshots, but may
elect to do so in either their own OPIFs or in their internal files,
provided that licensees make such documents available to the Commission
promptly upon request.
5. Legal Authority
33. The newly-adopted regulations are consistent with the Act and
the court's decision in NAB v. FCC. The Commission declined to address
challenges by commenters to the existing rules not under review in the
Second NPRM. Commenters' challenges to the Commission's authority fall
into two categories. First, a number of commenters sought to reopen
issues already decided in the First R&O under the guise of challenging
the Commission's authority to implement the proposals at issue in the
Second NPRM. As discussed in more detail below, the Commission
previously established in the First R&O that licensees must inform
their lessees about the foreign sponsorship identification rules and
inquire about the status of lessees and those further back in the chain
of production and distribution of programming. These issues were not
the subject of the Second NPRM. Second, commenters also challenged the
Commission's authority to adopt the specific proposals contained in the
Second NPRM. Below, the Commission first declined to address challenges
to those issues previously settled in the First R&O before addressing
challenges to the Commission's authority to establish the requirements
established in the Second R&O.
34. Challenges to Previously Settled Issues in the First R&O. More
than two years after the Commission adopted the foreign sponsorship
identification rules, and after themselves challenging a portion of
those rules in court, two commenters filing jointly disputed various
requirements that are fundamental to the foreign sponsorship
identification rules that the Commission established in the First R&O.
For example, they contested the requirement that licensees must inform
their lessees of the foreign sponsorship identification rules--a rule
established in the First R&O. Similarly, they challenged the previously
established

[[Page 57781]]

requirement that a licensee inquire of its lessee whether it has
knowledge of anyone further back in the chain of producing/distributing
the programming who qualifies as a foreign governmental entity and has
provided some type of inducement to air the programming. The Commission
sought comment on these requirements in the first notice of proposed
rulemaking (85 FR 74955, November 24, 2020) and adopted them in the
First R&O without reopening them in the Second NPRM, in which the
Commission made clear that it only intended to address the issues
vacated by the Court. The Commission declined to revisit additional
issues with respect to the existing rules. If commenters wished to
challenge such authority, they had the opportunity to do so in the
earlier administrative proceeding and in the NAB v. FCC litigation, and
should have done so then.
35. The Second NPRM never suggested that the issues the commenters
seek to reopen were under consideration in the instant proceeding. If
anything, the Second NPRM spoke of the obligations to inform and make
inquiries as established requirements. The questions posed in the
Second NPRM regarding the Commission's authority concerned the
authority to establish the requirements proposed in the Second NPRM and
no other. Nothing in the Second NPRM suggested that the Commission
intended to re-evaluate a licensee's duty to inform its lessee of the
foreign sponsorship identification rules and make certain inquiries of
the lessee.
36. Compliance with Section 317 of the Act. The Commission has
ample authority to implement the certification and screenshot
requirements established in the Second R&O based on section 317 of the
Act. The certification and screenshot options described above fit
squarely within the NAB v. FCC court's determination that section
317(c) imposes a duty of inquiry, and not a duty of investigation.
Licensees' certifications consist of nothing more than a reduction to
written form of those inquiry requirements established in the First R&O
and codified at 47 CFR 73.1212(j)(3). These inquiries are directed to
the lessee and concern the lessee's own status and its knowledge of
those further back in the chain of producing/distributing the
programming. The screenshot alternative retains in place all the
previously established requirements, except for the vacated
verification requirement. The only difference being that previously, if
the lessee stated it was not a U.S.-based foreign media outlet, or a
FARA agent, the licensee had to verify this answer by reviewing the
Department of Justice's FARA database and the Commission's U.S.-based
foreign media outlet report. In lieu of this, the licensee will now ask
the lessee for screenshots depicting its search results of the
Department of Justice's FARA database and the Commission's U.S.-based
foreign media outlet report.
37. Commenters argue that licensees only have a duty to inquire.
The Commission's rules require only that a licensee inquire of the
lessee (i.e., the program's sponsor); they do not make licensees
responsible for the truth of the information they obtain from lessees
by imposing independent investigatory or other obligations. With regard
to a licensee's certification option, it is merely required that the
inquiry be in written form. And, consistent with the court's
determination that the statute is narrowly drawn, the newly-adopted
requirements allow licensees to carry leased programming even in the
absence of actually obtaining foreign sponsorship information from the
lessee. However, in such situations, if a question arises later about
whether a disclosure was needed, the licensee must be able to
demonstrate, in the event of a fact-specific inquiry by the Commission,
that it exercised reasonable diligence in seeking the information. The
newly-adopted rules will help identify the types of effort necessary
for licensees to demonstrate reasonable diligence in carrying out their
duty of inquiry. Hence, section 317 gives the Commission ample
authority to require licensees to ask their lessees for certifications
or screenshots in order to determine whether a foreign sponsorship
disclosure is needed.
38. The Commission disagreed with the view that section 317(b),
when read in the context of the entirety of sections 317 and 507, as
well as the legislative history associated with the passage of these
provisions, suggests that section 317(b) should be read as a brake on
the licensee's duty to make inquiries pursuant to section 317(c).
Unlike Section 317(c), which imposes an obligation upon licensees to
exercise reasonable diligence to obtain information, section 317(b)
imposes an obligation on the station to air an appropriate disclosure
if it receives a report that payments were made to employees, or
persons involved in the production or preparation of the program, in
regard to material included in the programming to be broadcast by the
station. The Commission does not interpret section 317(b) to be a limit
on the inquiries the licensee must make pursuant to section 317(c).
Moreover, commenters' interpretation would contravene the Commission's
mandate under section 317(e) to carry out the statute's provisions.
39. Compliance with Administrative Procedure Act (APA). The
Commission has clearly and consistently articulated that licensees'
responsibilities as trustees of the nation's airwaves include
sponsorship identification based on the fundamental principle that the
public has the right to know whether the broadcast material has been
paid for and by whom. Commenters assert that the proposed rules violate
the APA, that the Commission has only identified a few instances of
foreign government sponsored programming, and that one of the stations
cited is no longer airing such programming. These assertions miss the
point that almost by definition when foreign governmental sponsorship
is undisclosed, neither the Commission nor the American public will
know about it. Moreover, Federal agencies have authority for
``precautionary or prophylactic responses to perceived risks'' based on
documented abuses. See Chamber of Commerce of U.S. v. SEC, 412 F.3d
133, 141 (D.C. Cir. 2005) (quoting Certified Color Mfrs. Ass'n v.
Mathews, 543 F.2d 284, 296 (D.C. Cir. 1976)). Furthermore, foreign
governments are continuing to disseminate programming over U.S.
broadcast media and, thus, there is a continued need for robust foreign
sponsorship identification rules. Hence, it is reasonable to conclude
that the reports of foreign government attempts to disseminate
programming via broadcast television and radio call for targeted action
to ensure audiences are aware when a foreign government or its
representatives are seeking to persuade the American public. Regardless
of the number of reported instances of undisclosed foreign government-
provided programming, Congress and the Commission have consistently
expressed their strong interest in the identification of foreign
government sponsored programming on the airwaves.
40. In response to commenters' concerns that the rules proposed in
the Second NPRM would be overly burdensome for broadcasters, the
Commission emphasized how limited its action is in the Second R&O. It
replaced the vacated name search requirement with a certification
requirement and an alternative screen shot approach, which is
essentially the name search requirement in a form that comports with
the statute as interpreted by the D.C. Circuit in NAB v. FCC. The
Commission also has significantly modified its initial proposals with

[[Page 57782]]

regard to these new rules. As discussed above, the standardized
certification language appended to the Second R&O has been reduced
significantly and now provides a simple check-box format. Additionally,
application of the Commission's standardized certification language is
now one of two options available to licensees. Similarly, in response
to commenter objections about uploading certifications and other
documentation to their OPIFs, the Commission decided to permit
licensees to instead maintain this documentation in their private files
if they choose.
41. Moreover, in response to commenter concerns about having to
repeat the certification or screenshot requirements on a weekly basis
for religious programmers, many of whom may not have the resources to
enter into long-term leases, the Commission modified the frequency with
which the certification/screenshot process must be conducted for such
leases. Similarly, concerns about uploading documents associated with
short term leases to the OPIFs have been addressed by permitting
licensees to retain their certifications/screenshots in their internal
files. With regard to the argument that new requirements would further
complicate or burden existing business relationships, the Commission
grandfathered existing leases until they are either up for renewal or
the parties enter into a new lease. Finally, the Commission decided not
to adopt the Second NPRM's proposal to have licensees report to the
Commission when lessees have failed to respond to licensee requests for
certifications/screenshots.
42. Thus, the reasonable diligence requirements are tailored
appropriately to accomplish the goal of ensuring the accurate detection
and disclosure of foreign government-provided programming while also
mitigating the burden of compliance on broadcasters. Transparency
regarding the source of broadcast programming, particularly foreign
government-provided programming, gives broadcast audiences the
information they need to fully appreciate the programming. Moreover, an
expectation of transparency regarding the source of programming also
enhances audience trust in broadcast programming overall--unlike other
media, broadcast audiences can feel confident that either their
programming is provided by their local licensee, or the source of other
programming is being disclosed. The Commission's careful tailoring
executes a balanced approach, minimizing the overall burden of
compliance on broadcasters while concurrently supporting the objectives
of accurate detection and disclosure, so as to ensure that the American
broadcast audience is informed about the source of its programming.

B. Application of Foreign Sponsorship Identification Requirements to
Different Types of Programming

43. The Commission clarified that its foreign sponsorship
identification requirements will not apply to advertising for
commercial products or services to the extent such advertising falls
within the exemption established in 47 CFR 73.1212(f). It also
clarified that the foreign sponsorship identification rules will not
apply to political candidate advertisements. It did, however, determine
that the foreign sponsorship identification rules will apply to issue
advertisements and paid PSAs. It also confirmed that the rule changes
contained in the Second R&O do not alter its finding in the First R&O
that the foreign sponsorship identification rules should not apply to
noncommercial and educational broadcast stations (NCEs). The Commission
declined to create an exemption from its foreign sponsorship
identification rules for religious programming and locally produced
and/or distributed programming. It also addressed the application of
its rules to section 325(c) permit holders.
1. Advertisements for Commercial Goods and Services
44. The Commission clarified that its long-standing sponsorship
identification requirements for advertising for commercial products or
services, as currently set out in 47 CFR 73.1212(f), also apply in the
context of foreign sponsorship identification. Accordingly, the
Commission dismissed the Petition for Clarification as moot because it
addressed the issues raised in that petition in the Second R&O. It
recognized that the use of the term ``traditional, short-form
advertising'' in the First R&O inadvertently created unnecessary
confusion about the application of the foreign sponsorship
identification rules. While the intention behind using the term may
have been to provide greater clarity, due to the resulting confusion,
the Commission reversed its previous decision to use that term and
relied instead on the well-established exemption from sponsorship
disclosure contained in 47 CFR 73.1212(f).
45. Section 73.1212(f) provides that in the case of broadcast
matter advertising commercial products or services, an announcement
stating the sponsor's corporate or trade name, or the name of the
sponsor's product, when it is clear that the mention of the name of the
product constitutes a sponsorship identification, shall be deemed
sufficient for the purpose of Sec. 73.1212 and only one such
announcement need be made at any time during the course of the
broadcast.
46. If broadcast matter for a commercial product or service meets
the requirements for a disclosure exemption under 47 CFR 73.1212(f),
the licensee need not make the inquiries contained in 47 CFR
73.1212(j), nor is the licensee required to air the disclosure set
forth in 47 CFR 73.1212(j)(1)(i). For an advertisement to fall under
the commercial exemption provisions of 47 CFR 73.1212(f), it must
include the sponsor's corporate or trade name, or the name of the
sponsor's product, when it is clear that the mention of the name of the
product constitutes a sponsorship identification. By clarifying that
the foreign sponsorship identification rules do not trump the pre-
existing sponsorship identification rules for advertising, the
Commission addressed the concerns raised by commenters about the
terminology used in the First R&O with regard to advertising.
47. The Second NPRM sought comment on whether to establish a ``safe
harbor'' for advertisements of a certain length. Based on the record,
the Commission found that it is better not to place any minimum or
maximum time limit on the broadcast matter that is subject to the
exemption established in 47 CFR 73.1212(f). Rather, the Commission was
persuaded to follow long-standing Commission precedent that
distinguishes programming that is entitled to the disclosure exemption
provided by Sec. 73.1212(f). This clarification should address the
questions that arose in response to the Commission's use of the term
``short-form advertising'' in the First R&O. With this additional
clarification about the applicability of Sec. 73.1212(f), the
Commission addressed the concerns raised in the record about the length
of various advertisements.
48. The Commission noted, however, that its foreign sponsorship
identification rules continue to apply to any broadcast matter that
does not fit within Sec. 73.1212(f). Just as the general sponsorship
identification requirements contained in Sec. 73.1212 apply to
programming that does not fall within the exemption of Sec.
73.1212(f), so too will the foreign sponsorship identification
requirements apply to such programming. Thus, to the extent foreign
government-provided programming is not for a commercial

[[Page 57783]]

product or service that includes the sponsor's corporate or trade name,
and would not otherwise be entitled to the disclosure exemption
provided by Sec. 73.1212(f), the licensee must engage in the inquiries
and other steps laid out in Sec. 73.1212(j).
2. Political Candidate Advertisements; Issue Advertisements; Paid
Public Service Announcements
49. In addition to the commercial products and services exemption
discussed above, the Commission exempted from the foreign sponsorship
identification requirements the purchase of broadcast time by or on
behalf of legally qualified candidates or their authorized committees
pursuant to section 315 of the Act (``political candidate
advertisements''). Political candidate advertisements, as used herein,
refers to ``uses'' of broadcast stations by legally qualified
candidates and are governed primarily by section 315 of the Act, which
subjects such uses to specific disclosure requirements. Section
315(b)(2)(C) requires that a television advertisement from a legally
qualified candidate include, at the end, a clearly identifiable
photographic or similar image of the candidate, and a clearly readable
printed statement, identifying the candidate and stating that the
candidate has approved the broadcast and that the candidate's
authorized committee paid for the broadcast. Section 315(b)(2)(D)
requires that a radio advertisement from a legally qualified candidate
include, at the end, a personal audio statement by the candidate that
identifies the candidate and the office the candidate is seeking, and
indicates that the candidate has approved the broadcast. See 47 U.S.C.
315(b)(2)(C) and (D).
50. The Second NPRM sought comment on the scope of the advertising
exemption adopted in the First R&O, and several parties in response
asked whether advertisements paid by or on behalf of legally qualified
candidates or their authorized committees would be subject to the
requirements of the foreign sponsorship identification rules. The
Commission recognized that there are statutory restrictions as well as
Federal Election Commission rules prohibiting contributions to Federal,
state, and local candidates by ``foreign nationals,'' a term that is
defined to include certain of the entities covered by its foreign
sponsorship identification rules, specifically a ``government of a
foreign country'' and a ``foreign political party.'' See Federal
Election Commission, 11 CFR 110.20(b) and (c); Department of Justice,
52 U.S.C. 30121(a). Because of these restrictions, the likelihood that
political candidate advertisements would require disclosures under the
foreign sponsorship identification rules is greatly limited.
Accordingly, the Commission was persuaded to exempt political candidate
advertisements from the foreign sponsorship identification
requirements.
51. However, issue advertisements and paid PSAs will be subject to
the foreign sponsorship identification rules. For purposes of these
rules, and consistent with the Act and the Commission's rules, the
Commission clarified that issue advertisements are defined as any paid
political matter or matter involving the discussion of a controversial
issue of public importance, regardless of the length of the
programming. See 47 U.S.C. 317(a)(2); 47 CFR 73.1212(e). As noted
above, the Commission specifically exempted advertisements made by or
on behalf of legally qualified candidates for public office or their
authorized committees, and as such they will not be considered issue
advertisements. Its exemption from the foreign sponsorship
identification rules for political candidate advertisements is based
largely on the fact that foreign nationals are prohibited from making
contributions to political candidates. Moreover, section 315 of the Act
provides a level of transparency regarding the source of funding for
political candidate advertising that is not available with issue
advertising and paid PSAs because section 315 requires political
candidates themselves to state that their authorized committee has paid
for the advertisement and that the candidate approves the
advertisement. While foreign nationals also are prohibited from funding
certain types of issue advertisements related to elections, the
Commission's definition of issue advertisements for purposes of these
rules is broader in scope in that its definition encompasses issue
advertisements unrelated to elections. Therefore, the Commission cannot
be as assured of foreign noninvolvement with respect to issue
advertisements. Rather than adopt a definition that attempts to parse
the different types of issue advertisements, and to ensure maximum
transparency for viewers and listeners, the Commission applied the
foreign sponsorship identification rules to all issue advertisements
and paid PSAs.
52. As reflected in the First R&O, the Commission's definition of
``lease'' for purposes of the foreign sponsorship disclosure
requirements includes ``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.''
This definition is sufficiently broad to cover issue advertising and
paid PSAs within the scope of the rules. This is a point that regulated
entities well understood, as reflected in the filing of a Petition for
Clarification. Certainly, paid PSAs and issue advertising could be used
by foreign governmental entities to access U.S. airwaves to persuade
the American public. Thus, ensuring that audiences are accurately
informed when foreign governmental entities sponsor issue
advertisements and paid PSAs is equally important as it is in the case
of other types of paid programming. Indeed, section 317 of the Act
recognizes the heightened concern about the source of issue
advertisements, providing that the Commission shall not be precluded
from requiring that an appropriate announcement shall be made at the
time of the broadcast of any political program or program involving the
discussion of any controversial issue for which any material was
furnished as an inducement to the broadcast of such program. As such,
it follows that such advertising should also be vetted for the possible
inclusion of material provided by a foreign governmental entity.
53. The Commission's decision to make the foreign sponsorship
identification rules applicable to issue advertisements and paid PSAs
falls within the scope of this proceeding. In the Second NPRM, the
Commission sought comment on ``what criteria the Commission might adopt
to distinguish between advertising and programming arrangements for the
lease of airtime in a way that does not jeopardize the Commission's
goals in this proceeding.'' Additionally, it sought, and received,
comment on whether there are ``key characteristics that could assist in
distinguishing advertising spots from a lease of airtime on a station.
. . .'' In considering the key characteristics for political candidate
advertisements, the Commission determined that the risk of influence by
a ``government of a foreign country'' and a ``foreign political party''
is minimal. Therefore, such advertisements will be exempt from the
foreign sponsorship identification rules. In contrast, as noted above,
issue advertisements and paid PSAs do not share those same
characteristics. Issue advertisements and paid PSAs cover a wide range
of subject matter and are purchased by a wide range of sponsors. As
such, there is a risk that contributions to such programming might have
been made by foreign governmental entities.

[[Page 57784]]

54. Broadcasters allege that applying the rules to issue
advertisements and paid PSAs will result in costly burdens that will
discourage political advertisers from using traditional media by, among
other things, slowing down transaction times for advertisements that
rely on quick turnaround times, requiring that signatures be obtained,
and necessitating training for advertising sales staff. This order
alleviated a number of the proposed requirements contained in the
Second NPRM, which broadcasters cited to as examples of burdens that
would adversely impact them in the context of issue advertisements and
paid PSAs. For example, this order significantly simplified and
shortened the Commission's standardized certification templates, while
also allowing broadcasters to use their own certification language
should they choose to do so. Based on concerns raised in the record,
the certification requirement contained in this order does not require
licensees to obtain ``signed certifications'' as was proposed in the
Second NPRM, but rather states that if a licensee does not obtain a
response, or obtains an inadequate response to its reasonable diligence
inquiries, it may continue to air the programming. To the extent that
broadcasters are concerned about whether obtaining signed
certifications might delay their ability to meet their current OPIF
filing requirements under the political advertising rules, this order
allows broadcasters to file their foreign sponsorship identification
documentation in their own records. To the extent that broadcasters
wish to keep all such documentation in their OPIFs, they need only
supplement their OPIF file after receiving the certifications or
screenshots. Therefore, the modifications made in this order to the
proposals contained in the Second NPRM address many of the concerns
identified by broadcasters regarding the application of the foreign
sponsorship identification rules to issue advertisements and paid PSAs.
The Commission concluded that the benefits of applying the foreign
sponsorship identification rules to issue advertisements and paid PSAs
outweigh the burdens associated with complying with the rules.
3. Programming on Noncommercial and Educational Stations
55. The Commission confirmed that the Second R&O does not alter its
prior finding that the foreign sponsorship identification rules should
not apply to NCEs. The Commission prohibits NCEs from receiving
compensation in exchange for broadcasting programs (i.e., leased
programming). Because the foreign sponsorship identification rules
apply only to leased programming, the Commission concluded in the First
R&O that any NCEs in compliance with the prohibition should not fall
within the ambit of the foreign sponsorship identification
requirements. The First R&O explained that NCE stations will rarely, if
ever, face the need to address the foreign sponsorship disclosure rules
given the limitations on their ability to engage in leasing
arrangements. The Commission confirmed that none of the newly-adopted
rule modifications in the Second R&O has any effect on its previous
conclusion.
3. Religious and Locally Produced and/or Locally Distributed
Programming
56. The Commission declined to adopt commenters' request to create
exemptions from the new foreign sponsorship identification rule
requirements for certain types of programming. The Commission declined
to revisit the existing rule requirements for the reasons set forth
above. Commenters argued that the Commission should narrow the
definition of ``lease'' by granting exemptions for certain categories
of programming, specifically religious programming and locally produced
and/or locally distributed programming. The Commission found that
creating the requested exemption for religious programming would not be
content-neutral. Additionally, the mere fact that programming is
locally produced and/or locally distributed does not signify that the
programming lacks material provided by a foreign governmental entity,
such that there should be a blanket carveout for locally produced and/
or distributed programming from the new foreign sponsorship
identification rule requirements.
57. The Commission recognized that religious programming and
locally produced and/or locally distributed programming play a vital
role in supporting local communities. Just as important as having
access to such programming is knowing the true source of the
programming. Commenters made two arguments in favor of their requested
exemptions. First, they asserted that these exemptions are justified
because, based on their inquiries to date, they have not found any
foreign governmental entities sponsoring religious programming or
locally produced and/or locally distributed programming. Second,
commenters claimed that the new foreign sponsorship identification rule
requirements are so burdensome that, ultimately, they will lead to a
reduction in religious and locally produced and/or locally distributed
programming.
58. With regard to the first argument, the Commission emphasized
that a prevalence of foreign propaganda on radio and television
stations is not a prerequisite to Commission action. Furthermore,
providing a consistent set of rules for all leased programming
streamlines the process of compliance for licensees and closes the door
to any attempt to exploit loopholes that might arise from these
exemptions. In addition, the argument that there is a lack of foreign
government-provided ``propaganda'' on religious or locally produced and
distributed programming misses the aim of the Commission's rules. The
foreign sponsorship identification rules are intended to notify the
public when the source of the programming is a foreign governmental
entity. Therefore, as a general principle of law, the content of the
broadcast matter for purposes of these rules is irrelevant, and the
issue of ``propaganda'' bears no weight.
59. On the issue of burdens, as described above, the new rule
requirements are limited in scope, and the Commission modified
significantly the proposals contained in the Second NPRM to address
many of the burden concerns noted by commenters. The newly-adopted
requirements do not seek to favor or disfavor any particular type of
programming. The rules do not prohibit any form of programming, but do
seek to ensure that broadcast audiences are aware of the source of
foreign government-provided programming. The Commission determined that
the new rule requirements should be applied to all broadcast licensees,
to fulfill its existing statutory duty to inquire about the source of
programming, which contains no exemption for religious programming
lessees or any other designation. It also determined that the new rules
are a minimal extension of the long-standing sponsorship identification
rules and in no way burden broadcasters' choice of leased programming
or chill editorial discretion in favor of more sophisticated
programmers.
60. Some commenters contended that the new rule requirements will
make it more expensive for licensees to air religious and locally
produced and/or distributed programming. Citing Washington Post v.
McManus, 944 F.3d 506 (4th Cir. 2019), they assert that the new rule
requirements equate to ``putting a thumb on the scale against a
particular type of speech in the competitive market . . .'' in
violation of the First Amendment. The Commission

[[Page 57785]]

found the McManus case to be inapposite because that case involved the
singling out of ``one particular topic of speech--campaign-related
speech,'' whereas the new rule requirements apply equally to all forms
of speech and are not content-based.
61. In a similar vein, some commenters contended that the new rule
requirements violate religious programmers' rights to freedom of speech
under the Supreme Court's 2018 decision in National Institute of Family
and Life Advocates (NIFLA) v. Becerra, 138 S.Ct. 2361 (2018). In that
case, the Supreme Court held that to protect the petitioners' rights to
freedom of speech, disclosure requirements must not be unduly
burdensome, remedy a harm that is purely hypothetical, or extend more
broadly than reasonably necessary. The Commission found this case,
imposing a medical disclosure requirement, to be inapposite because the
type of disclosure the Commission requires is wholly content-neutral.
The Becerra case involved a content-based disclosure requirement, which
was found to be an impermissible regulation of speech because the
required disclosures in that case altered the content of petitioners'
speech by requiring them to post information contrary to the messages
they wished to convey. By contrast, the new requirements do not alter
the content of the programming, nor do they prohibit or limit the
ability of the licensee or lessee to air the programming or to convey
whatever message is intended. The public has a legitimate interest in
knowing the source of programming that is furnished by a foreign
governmental entity, and broadcasters have demonstrated for years their
capability of airing similar disclosures for programming sponsored by
U.S. lessees. As described below, public awareness of the source of
broadcast programming is a long-recognized compelling government
interest, and the modifications the Commission has made in response to
commenter concerns ensure that its rules are narrowly tailored.
62. The new foreign sponsorship identification rule requirements
comport with the strictures of the First Amendment of the U.S.
Constitution. The rules at issue here are content-neutral--they apply
to broadcast programming provided by any foreign governmental entity,
regardless of the nature of the programming or whether the entity's
interests are directly at odds with the United States. Accordingly,
with respect to broadcasters, the disclosure requirements in question
are subject to review under ``heightened rational basis,'' the less
rigorous standard applied to content-neutral restrictions on that
medium, and thus, as explained below, will be upheld if reasonably
tailored to satisfy a substantial government interest. Even assuming,
that intermediate scrutiny applies, the new rules satisfy review under
this standard. As set forth below, the Commission determined that the
government's interest in ensuring that audiences are accurately
informed when foreign governmental entities sponsor broadcast
programming is substantial and the rules are both ``reasonably
tailored'' to further that interest.
63. The Commission's application of section 317 for over eighty
years, as well as Congress's 1960 amendments thereto, demonstrate a
strong interest in requiring accurate sponsorship identification.
Complete and accurate disclosure regarding the source of programming is
critical to allowing audiences to determine the reliability and
credibility of the information they receive. The Commission considers
such transparency to be a critical part of broadcasters' public
interest obligation to use the airwaves with which they are entrusted
to benefit their local communities. Rather than abridging broadcasters'
freedom of speech rights, disclosure of sponsorship promotes First
Amendment and Communications Act goals by enhancing viewers' ability to
assess the substance and value of foreign government-provided
programming, thus promoting an informed public and improving the
quality of public discourse. The new requirements further the
government's interest by ensuring that licensees have met their duty of
inquiry and thereby will ensure accurate sponsorship identification.
64. The Commission believes the newly-adopted foreign sponsorship
identification rule requirements will be evaluated under, and will
fully withstand, the scrutiny applied to content-neutral restrictions
on broadcasters. Notably, the rules do not ban any type of speech but
merely require a procedure for documenting reasonable diligence
inquiries in support of the factual disclosure of the source of certain
of programming. Given this content-neutral function, the existing
tailoring, and the Commission's strong objective of accurate detection
and disclosure of foreign government-provided programming, the rules
comply with the First Amendment as they are reasonably tailored to
satisfy substantial government interests. And even if a court were to
apply intermediate scrutiny, as opposed to heightened rational basis,
the revised rules still would withstand such a stricter form of
judicial review. The Commission has repeatedly stated the importance of
promulgating rules that are substantially related to the agency's
objective of ensuring that audiences are informed about the source of
programming provided by foreign governmental entities. Ultimately,
regardless of whether rational heightened basis or intermediate
scrutiny is applied, the Commission concluded that its new foreign
sponsorship identification rule requirements satisfy the First
Amendment.
4. Programming on Stations With Section 325(c) Permits
65. As explained in the Second NPRM, ``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 for broadcast by the foreign
station into the United States.'' 47 U.S.C. 325(c). In the First R&O,
the Commission added paragraph (k) to Sec. 73.1212, which makes
section 325(c) permittees subject to foreign sponsorship identification
requirements. In the Second NPRM, the Commission explained that given
the nature of the section 325(c) permits, pursuant to 47 U.S.C.
73.1212(k), the foreign sponsorship identification disclosure
requirements apply to any programming permitted to be delivered to
foreign broadcast stations under an authorization pursuant to section
325(c) of the Act if the material has been: (i) sponsored by a foreign
governmental entity; (ii) paid for by a foreign governmental entity;
(iii) furnished for free by a foreign governmental entity to the
section 325(c) permit holder as an inducement to air the material on
the foreign station; or (iv) provided by the section 325(c) permit
holder to the foreign station where the section 325(c) permit holder is
a foreign governmental entity. Where the section 325(c) permit holder
itself is a foreign governmental entity, the disclosure requirements
apply to all programming provided by the permit holder to a foreign
station.
66. In the Second NPRM, the Commission noted that applying foreign
sponsorship identification disclosures to programs permitted to be
delivered to foreign broadcast stations under an authorization pursuant
to section 325(c) of the Act aims to level the playing field between
programming aired by non-U.S. and U.S. broadcasters in the same

[[Page 57786]]

geographic area within the United States and to eliminate any potential
loophole in the regulatory framework with respect to the identification
of foreign government-provided programming that may result from this
proceeding.
67. In the Second NPRM, the Commission further stated that the
foreign sponsorship identification rules apply to all programming
provided by a section 325(c) permit holder to a foreign broadcast
station, regardless of whether the programming is provided as part of a
lease agreement or through some other arrangement. As explained, ``[i]n
the context of section 325(c) permits, leasing of airtime is not a
relevant prerequisite for application of the foreign sponsorship
identification rules because section 325(c) permit holders' foreign
broadcast arrangements can be struck in various ways, not just through
the leasing of airtime, under the laws of foreign countries.'' The
Commission further explained that in this context, ``[its] rules ensure
that no material provided by a permit holder that is a foreign
governmental entity is broadcast into the United States through the use
of section 325(c) permits without the appropriate disclosures.'' To
provide greater clarity regarding the application of these disclosure
requirements in the context of programming subject to a section 325(c)
permit, the Commission proposed to modify Sec. 73.1212(k) and sought
comment on these proposed changes and clarifications. The Commission
also sought comment on the need to apply the reasonable diligence
requirements proposed in the Second NPRM to section 325(c) permit
holders given that they presumably have direct knowledge of whether
they are a foreign governmental entity. The Commission noted that,
regardless, ``even if a permit holder is not itself a foreign
governmental entity, the disclosure requirements apply to any part of
its programming that is sponsored, paid for, or furnished for free by a
foreign governmental entity either directly to the permit holder or to
an entity farther back in the content production chain.'' To address
such situations, the Commission sought comment on whether section
325(c) permit holders should be required to exercise reasonable
diligence to determine when a disclosure is needed. In addition, the
Commission sought comment on whether section 325(c) permit holders
should be required to place the certifications that were proposed in
the Second NPRM, or other due diligence documentation, in the
International Bureau Filing System (IBFS) and if so, for how long.
68. No comments were submitted in response to the Second NPRM
regarding the programming on stations with 325(c) permits. Accordingly,
the Commission adopted the proposed changes and clarifications proposed
in the Second NPRM. It reconfirmed that it is the responsibility of the
section 325(c) permit holder to ensure that the foreign station
broadcasts the disclosure where required along with the programming
provided by the permit holder. The Commission reminded section 325(c)
permit holders that they are obligated to place copies of any
disclosures made, along with required related information as described
in Sec. 73.1212(k), in the publicly available International
Communications Filing System (ICFS).

C. Existing Leases

69. Any lease agreements that are entered into, or that are
renewed, on or after the effective date of the revisions to Sec.
73.1212(j)(3) adopted in the Second R&O must comply with those
requirements. Commenters asked that the Commission grandfather all
lease agreements already in place at the time that the new rules go
into effect. The Commission agreed with commenters and determined that
the newly-adopted rule modifications will apply only to new leases and
renewals of existing leases entered into on or after the effective date
for these rule modifications. The Commission therefore declined to
adopt its proposal in the Second NPRM to apply the modified rule to
existing lease agreements with a six-month grace period for compliance.

D. Digital Equity and Inclusion

70. The Commission maintains a continuing effort to advance digital
equity for all, including people of color, persons with disabilities,
persons who live in rural or Tribal areas, and others who are or have
been historically underserved, marginalized, or adversely affected by
persistent poverty or inequality. As such, in the Second NPRM the
Commission sought comment on whether any of the proposals discussed
therein might promote or inhibit advances in diversity, equity,
inclusion, and accessibility. While not specifically responding to the
request for comment on Digital Equity and Inclusion, some commenters
argued that a certification requirement has the effect of discouraging
diverse entrants by burdening local marketing agreements (LMAs) and
time brokerage agreements (TBAs). Given the adopted revisions to the
proposed rules in order to resolve claimed burdens, the Commission
found that its actions will not inhibit diverse entrants from
participating in the broadcast media marketplace.
71. The Second R&O furthers the Commission's ongoing commitment to
advance digital equity by simplifying its compliance procedures, which
will minimize any possibility that the foreign sponsorship
identification rules will discourage the participation of small
programmers, including minority-owned programmers, as some commenters
have asserted. Further, the Second R&O adopts regulations that are
content-neutral and that apply to all broadcasters and lessees equally,
and will not inhibit advances in diversity, equity, inclusion, and
accessibility.

IV. Procedural Matters

72. Regulatory Flexibility Act. As required by the Regulatory
Flexibility Act of 1980 (RFA), as amended, an Initial Regulatory
Flexibility Certification was incorporated into the Second NPRM. See 5
U.S.C. 603. The RFA, see 5 U.S.C. 601 et seq., as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREA), Public
Law 104-121, Title II, 110 Stat. 857 (1996). The SBREFA was enacted as
Title II of the Contract with America Advancement Act of 1996. Pursuant
to the RFA, the Commission's Final Regulatory Flexibility Certification
relating to the Second R&O is below. See 5 U.S.C. 604.
73. Paperwork Reduction Act. The Second R&O may contain new or
revised information collection requirements subject to the Paperwork
Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501-3520) (PRA).
All such new or modified information collection 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 any 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), it
previously sought specific comment on how the Commission might further
reduce the information collection burden for small business concerns
with fewer than 25 employees. The Commission assessed the effects of
the certification and screenshot requirement on licensees, and it found
that the modifications in the Second R&O impose a minimal, justifiable
burden on small entities.
74. Congressional Review Act. The Commission has determined, and
Administrator of the Office of

[[Page 57787]]

Information and Regulatory Affairs, OMB, 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 the Second R&O to Congress and the
Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

V. Final Regulatory Flexibility Act Analysis

75. As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.
603, as amended (RFA), an Initial Regulatory Flexibility Analysis
(IRFA) was incorporated in the Second NPRM, released in October 2022.
The Commission sought written public comment on the proposals in the
Second NPRM, including comment on the IRFA. The Commission received no
comments addressing the IRFA. This present Final Regulatory Flexibility
Analysis (FRFA) conforms to the RFA. See 5 U.S.C. 604.

A. Need for, and Objectives of, the Report and Order

76. On April 22, 2021, the Commission released the First R&O
adopting a requirement that radio and television broadcast station
licensees transmit clear disclosures for programming that is provided
by a foreign governmental entity. The First R&O also established
procedures that licensees must follow to determine whether such a
disclosure is required. The Commission promulgated these foreign
sponsorship identification rules in response to reports of undisclosed
foreign government programming being transmitted by U.S. broadcast
stations. The Commission's rules established a definition of ``foreign
governmental entity'' based on existing definitions, statutes, and
regulations. The Commission's requirements apply to leased programming
because the record in the underlying proceeding identified leased
airtime as the primary means by which foreign governmental entities are
accessing U.S. airwaves to persuade the American public without
adequately disclosing the true sponsor. The Commission promulgated the
foreign sponsorship identification rules based on a fundamental and
long-standing tenet of broadcast regulation; namely, that the public
has a right to know the identity of those soliciting their support.
77. On July 19, 2021, the ABC Television Affiliates Association,
CBS Television Network Affiliates Association, FBC Television
Affiliates Association, and NBC Television Affiliates (collectively,
the ``Affiliates'') filed a Petition for Clarification. The Affiliates
assert that the exemption in the First R&O of ``traditional, short-form
advertising'' from the foreign sponsorship identification rules creates
confusion because the term has no established meaning in the broadcast
industry.
78. On August 13, 2021, the National Association of Broadcasters
(NAB) and two public interest groups (collectively, the
``Petitioners'') filed a Petition for Review of the Commission's First
R&O with the U.S. Court of Appeals for the District of Columbia Circuit
challenging the Commission's authority to impose one of the reasonable
diligence requirements contained in the First R&O. Specifically, the
First R&O required a licensee to confirm whether its lessee is a
``foreign governmental entity,'' at the time of entering into a lease
agreement and at renewal, by consulting the Department of Justice's
Foreign Agent Registration Act (FARA) website and the Commission's
semi-annual U.S.-based foreign media outlets reports.
79. On July 12, 2022, the D.C. Circuit vacated this verification
requirement, holding that it exceeded the Commission's authority under
section 317(c) of the Communications Act. The court left in place the
remaining four requirements needed to satisfy the statutory reasonable
diligence standard. Pursuant to these requirements, a broadcast
licensee must at the time of entering into a new lease agreement, or at
renewal:

80. On October 6, 2022, the Commission released its Second NPRM,
which contained proposals to address the gap left in the foreign
sponsorship identification rules by the D.C. Circuit's vacatur of the
independent verification requirement. In addition, the Second NPRM gave
interested parties the opportunity to comment on the pending Petition
for Clarification ``regarding the applicability of the foreign
sponsorship identification rules to advertisements sold by local
broadcast stations'' and the application of the Second NPRM's proposals
to section 325(c) permit holders.
81. The Second R&O replaces the vacated verification requirement
with an approach that allows a licensee to choose between one of two
options to comply with its statutory ``reasonable diligence''
requirement. Although licensees must choose one of these approaches,
they need not choose the same approach for each lease or renewal
agreement, even when the same lessee is involved. Compliance with one
of these two approaches must be at the time of entering into any new
lease agreement or renewing an existing lease agreement, unless the
once-a-year exception described below applies. Under the first option,
both the licensee and the lessee must complete a written certification
either using the standardized certification language contained in
Appendices C and D of the Second R&O, and set forth below, or using
their own language, as long as the certifications written in their own
language contain the information and inquiry requirements set out in
Sec. 73.1212(j)(3)(i) through (iii) of the Commission's rules,
pursuant to the First R&O.
82. Under the second option, instead of asking the lessee to
provide a responsive certification regarding its status, a licensee
exercising this option would ask, consistent with the Commission's
current foreign sponsorship identification rules, whether the lessee is
a registered FARA agent, or is listed in the Commission's U.S.-based
foreign media outlet report. If the lessee responds ``no,'' the
licensee would then ask the lessee to provide screenshots showing the
results of lessee's searches of both of these websites. See <a href="https://www.fcc.gov/united-states-based-foreign-media-outlets">https://www.fcc.gov/united-states-based-foreign-media-outlets</a>, which identifies
the outlets that filed with the Commission in response to the National
Defense Authorization Act for Fiscal Year 2019 (NDAA). The NDAA
requires U.S.-based foreign media outlets to submit reports every six
months to the Commission regarding the outlets' relations to their
foreign principals. Licensees choosing this option must still comply
with all other aspects of the current rule, as they have been required
to do since the compliance date of the First R&O. Specifically,
consistent with the existing foreign sponsorship identification rules,
the licensee must inform the lessee about the foreign sponsorship
disclosure requirement; inquire whether the lessee is either a
``government of a foreign country'' or a ``foreign political party[;]''
and inquire about the lessee's knowledge of anyone further back in the
chain of producing/distributing the

[[Page 57788]]

programming who qualifies as a ``foreign governmental entity'' and may
have provided an inducement to air the programming such as to trigger
the need for a foreign sponsorship disclosure. See 47 CFR
73.1212(j)(3)(i) through (iii). Finally, also consistent with the
existing foreign sponsorship identification rules, the licensee must
memorialize those inquiries in some manner. See 47 CFR
73.1212(j)(3)(v).
83. Although proposed in the Second NPRM, in response to commenter
concerns, the Second R&O determines that a licensee need not notify the
Commission's Media Bureau when a lessee fails to respond to the
licensee's queries. If, however, it is determined at a later date that
the programming should have included a foreign sponsorship disclosure,
the Commission may conduct a fact-specific inquiry to determine whether
the licensee met its obligation under section 317(c) to ``exercise
reasonable diligence to obtain'' the necessary information, such as by
not making further inquiry of the lessee. Further, although the Second
NPRM proposed requiring licensees to retain the certifications and
screenshots in the licensees' own online public inspection file (OPIF),
the Second R&O gives licensees more flexibility in deciding where to
retain these records. Pursuant to the Second R&O, licensees may either
file these records in their OPIF or retain these records in their
internal files, as long as the documents are made available to the
Commission promptly upon request. Licensees must retain all of their
certifications and screenshots, along with a memorialization of
inquiries accompanying the screenshots for the length of the license
term or one year, whichever is longer.
84. In response to commenter concerns about frequently having to
repeat the certification/screenshot process for short term leases, the
Second R&O concludes that, where a licensee and the same lessee enter
into recurring leases for the same programming over a one year period,
the licensee need only exercise its reasonable diligence obligations,
including the certification or screenshot process, once per year. This
modification of the proposals contained in the Second NPRM addresses
concerns raised in the record about the burdens associated with the
production of multiple certifications/screenshots over a limited period
of time when the lease concerns both the same lessee and same
programming. The Second R&O provides an example of what is meant by
``same lessee'' and ``same programming'' in this context. An example of
what is meant by ``same lessee'' and ``same programming'' in this
context would be House of Worship X leasing time for the live broadcast
of its weekly religious service, every Sunday from 11 a.m. till 12 p.m.
While the specific broadcasts would differ week to week, the lessee
would continue to be House of Worship X and the program would be its
live religious service broadcast. By contrast, if House of Worship X
decides to use its regular time slot to provide something other than
its weekly religious service--e.g., a panel discussion with various
civic leaders--that would be considered different programming that
would not fall within the one year exemption, and, thus, would require
licensee and lessee to engage in the reasonable diligence requirements
laid out in the Commission's rules.
85. The Second R&O reconfirms the finding from the First R&O that
the foreign sponsorship identification rules should not apply to
noncommercial and educational stations (NCEs). The Second R&O also
clarifies that the foreign sponsorship identification requirements will
not apply to advertising for commercial products or services to the
extent such advertising falls within the exemption established in Sec.
73.1212(f) of the Commission's rules. The Second R&O also clarifies
that the foreign sponsorship identification rules will not apply to
political candidate advertisements. The Second R&O, however, determines
that the foreign sponsorship identification rules will apply to issue
advertisements and paid PSAs. The Second R&O declines to adopt
commenters' request to create exemptions from the foreign sponsorship
identification rules for religious programming and locally produced
and/or locally distributed programming. The Second R&O finds that
creating an exemption for religious programming would not be content-
neutral. Additionally, the Second R&O determines that the mere fact
that programming is locally produced and/or locally distributed does
not signify that the programming lacks material provided by a foreign
governmental entity, such that there should be a blanket carveout for
locally produced and/or distributed programming from the foreign
sponsorship identification rules.
86. The requirements adopted in both the First R&O and Second R&O
will also apply to section 325(c) permit holders. However, because
section 325(c) permit holders do not have OPIFs, they will file their
foreign sponsorship disclosures in the publicly available International
Communications Filing System (ICFS).

B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA

87. There were no comments filed that specifically addressed the
proposed rules and policies presented in the IRFA.

C. Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration

88. Pursuant to the Small Business Jobs Act of 2010, which amended
the RFA, the Commission is required to respond to 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. 5 U.S.C. 604(a)(3). The Chief
Counsel did not file any comments in response to the proposed rules in
this proceeding.

D. Description and Estimate of the Number of Small Entities to Which
the Rules Will Apply

89. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the rules adopted herein. 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.
90. Television Broadcasting. This industry is comprised of
``establishments primarily engaged in broadcasting images together with
sound.'' See U.S. Census Bureau, 2017 NAICS Definition, ``515120
Television Broadcasting,'' <a href="https://www.census.gov/naics/?input=515120&year=2017&details=515120">https://www.census.gov/naics/?input=515120&year=2017&details=515120</a>. 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

[[Page 57789]]

from external sources. The SBA small business size standard for this
industry classifies businesses having $41.5 million or less in annual
receipts as small. 13 CFR 121.201, NAICS Code 515120 (as of 10/1/22
NAICS Code 516120). 2017 U.S. Census Bureau data indicate that 744
firms in this industry operated for the entire year. Of that number,
657 firms had revenue of less than $25,000,000. Based on this data the
Commission estimates that the majority of television broadcasters are
small entities under the SBA small business size standard.
91. As of September 30, 2023, there were 1,377 licensed commercial
television stations. Broadcast Station Totals as of September 30, 2023,
Public Notice, DA 23-921 (rel. Oct. 3, 2023) (October 2023 Broadcast
Station Totals PN), <a href="https://docs.fcc.gov/public/attachments/DA-23-921A1.pdf">https://docs.fcc.gov/public/attachments/DA-23-921A1.pdf</a>. Of this total, 1,258 stations (or 91.4%) had revenues of
$41.5 million or less in 2022, according to Commission staff review of
the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on
October 4, 2023, and therefore these licensees qualify as small
entities under the SBA definition. In addition, the Commission
estimates as of September 30, 2023, there were 383 licensed NCE
television stations, 380 Class A TV stations, 1,889 LPTV stations and
3,127 TV translator stations. The Commission, however, does not compile
and otherwise does not have access to financial information for these
television broadcast stations that would permit it to determine how
many of these stations qualify as small entities under the SBA small
business size standard. Nevertheless, given the SBA's large annual
receipts threshold for this industry and the nature of these television
station licensees, the Commission presumes that all of these entities
qualify as small entities under the above SBA small business size
standard.
92. Radio Broadcasting. This industry is comprised of
``establishments primarily engaged in broadcasting aural programs by
radio to the public.'' See U.S. Census Bureau, 2017 NAICS Definition,
``515112 Radio Stations,'' <a href="https://www.census.gov/naics/?input=515112&year=2017&details=515112">https://www.census.gov/naics/?input=515112&year=2017&details=515112</a>. Programming may originate in
their own studio, from an affiliated network, or from external sources.
The SBA small business size standard for this industry classifies firms
having $41.5 million or less in annual receipts as small. U.S. Census
Bureau data for 2017 show that 2,963 firms operated in this industry
during that year. Of this number, 1,879 firms operated with revenue of
less than $25 million per year. Based on this data and the SBA's small
business size standard, the Commission estimates a majority of such
entities are small entities.
93. The Commission estimates that as of September 30, 2023, there
were 4,452 licensed commercial AM radio stations and 6,670 licensed
commercial FM radio stations, for a combined total of 11,122 commercial
radio stations. Of this total, 11,120 stations (or 99.98%) had revenues
of $41.5 million or less in 2022, according to Commission staff review
of the BIA Kelsey Inc. Media Access Pro Database (BIA) on October 4,
2023, and therefore these licensees qualify as small entities under the
SBA definition. In addition, the Commission estimates that as of
September 30, 2023, there were 4,263 licensed NCE FM radio stations,
1,978 low power FM (LPFM) stations, and 8,928 FM translators and
boosters. The Commission however does not compile, and otherwise does
not have access to financial information for these radio stations that
would permit it to determine how many of these stations qualify as
small entities under the SBA small business size standard.
Nevertheless, given the SBA's large annual receipts threshold for this
industry and the nature of radio station licensees, the Commission
presumes that all of these entities qualify as small entities under the
above SBA small business size standard.
94. The Commission notes, however, that in assessing whether a
business concern qualifies as ``small'' under the above definition,
business (control) affiliations must be included. ``[Business concerns]
are affiliates of each other when one concern controls or has the power
to control the other or a third party or parties controls or has the
power to control both.'' 13 CFR 21.103(a)(1). Its estimate, therefore,
likely overstates the number of small entities that might be affected
by the Commission's action, because the revenue figure on which it is
based does not include or aggregate revenues from affiliated companies.
In addition, another element of the definition of ``small business''
requires that an 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 broadcast
station is dominant in its field of operation. Accordingly, the
estimate of small businesses to which the rules may apply does not
exclude any radio or television station from the definition of a small
business on this basis and is therefore possibly over-inclusive. An
additional element of the definition of ``small business'' is that the
entity must be independently owned and operated. Because it is
difficult to assess these criteria in the context of media entities,
the estimate of small businesses to which the rules may apply does not
exclude any radio or television station from the definition of a small
business on this basis and similarly may be over-inclusive.

E. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities

95. The Second R&O gives licensees the choice between one of two
options to comply with their statutory ``reasonable diligence''
requirement. Although licensees must choose one of these approaches,
they need not choose the same approach for each lease or renewal
agreement, even when the same lessee is involved. Compliance with one
of these two approaches must be at the time of entering into any new
lease agreement or renewing an existing lease agreement, unless the
once-a-year exception described below applies. Under the first option,
both the licensee and the lessee must complete a written certification
either using the standardized certification language contained in
Appendices C and D of the Second R&O, and set forth below, or using
their own language, as long as the certifications written in their own
language contain the information and inquiry requirements set out in
Sec. 73.1212(j)(3)(i) through (iii) of the Commission's rules,
pursuant to the First R&O. Specifically, a licensee's certification
should:

(1) inform the lessee of the foreign sponsorship disclosure
requirement;
(2) ask the lessee whether it falls into any of the categories
that would qualify it as a ``foreign governmental entity;''
(3) ask the lessee whether it knows if any individual/entity
further back in the chain of producing and/or distributing the
programming to be aired qualifies as a foreign governmental entity
and has provided some type of inducement to air the programming;
(4) seek a written certification in response from the lessee;
and
(5) obtain the necessary information for a disclosure if one is
required.

96. A lessee's certification should convey the information needed
to determine whether a disclosure is required and the information
needed for a broadcast disclosure if one is required. See 47 CFR
73.1212(j)(1).
97. Regardless of whether the Commission's templates or a
licensee's and lessee's own certifications are used, both the
licensee's and lessee's certifications must be dated and signed by an
employee or other representative

[[Page 57790]]

of the entity who can attest to the fact that these actions were taken.
98. Under the second option, instead of asking the lessee to
provide a responsive certification regarding its status, a licensee
exercising this option would ask, consistent with the Commission's
current foreign sponsorship identification rules, whether the lessee is
a registered FARA agent or is listed in the Commission's U.S.-based
foreign media outlet report. If the lessee responds ``no,'' the
licensee would then ask the lessee to provide screenshots showing the
results of lessee's searches for its own name on both of these
websites. The FARA website provides for an ``Active Registrants''
search link, and the Second R&O recommends that lessees use this link
because the Commission's rules only cover those FARA agents who are
currently registered on the Department of Justice FARA site. In
response to concerns raised in the record about having to input ``exact
names'' into the search feature, the Second R&O emphasizes that lessees
are looking for their own names. A lessee is not doing a FARA database
search to learn whether it is registered such as to necessitate
experimenting with different iterations of its name. A lessee, or
someone within lessee's organization, would know whether it is a FARA
registrant, or U.S.-based foreign media outlet. As such, the lessee
will only be providing screenshots if, in response to licensee's
queries, the lessee states that it is neither a FARA agent nor a U.S.-
based foreign media outlet.
99. With regard to searches of the Commission's U.S.-based foreign
media outlet site, the Commission's website lists the names of all the
entities that have reported as U.S.-based foreign media outlets, and
all that is required is a screenshot of this list to show whether the
lessee's name appears on the list at the time of the licensee's
required inquiries. Licensees choosing this option must still comply
with all other aspects of the current rule, as they have been required
to do since the compliance date of the First R&O. Specifically,
consistent with the existing foreign sponsorship identification rules,
the licensee must inform the lessee about the foreign sponsorship
disclosure requirement; inquire whether the lessee is either a
``government of a foreign country'' or a ``foreign political party[;]''
and inquire about the lessee's knowledge of anyone further back in the
chain of producing/distributing the programming who qualifies as a
``foreign governmental entity'' and may have provided an inducement to
air the programming such as to trigger the need for a foreign
sponsorship disclosure. Moreover, consistent with the certification
option, a licensee should also ask the lessee to update it if there has
been a change in the lessee's status or the status of anyone further
back in the chain of producing/distributing the programming so as to
trigger the need for a foreign sponsorship disclosure. Finally, also
consistent with the existing foreign sponsorship identification rules,
the licensee must memorialize those inquiries in some manner.
100. Although proposed in the Second NPRM, in response to commenter
concerns, the Second R&O determines that a licensee need not notify the
Commission's Media Bureau when a lessee fails to respond to the
licensee's queries. If, however, it is determined at a later date that
the programming should have included a foreign sponsorship disclosure,
the Commission may conduct a fact-specific inquiry to determine whether
the licensee met its obligation under section 317(c) of the
Communications Act to ``exercise reasonable diligence to obtain'' the
necessary information, such as by not making further inquiry of the
lessee. Further, although the Second NPRM proposed requiring licensees
to retain the certifications and screenshots in the licensees' own
OPIF, the Second R&O gives licensees more flexibility in deciding where
to retain these records. Pursuant to the Second R&O, licensees may
either file these records in their OPIF or retain these records in
their internal files, as long as the documents are made available to
the Commission promptly upon request. Licensees must retain all of
their certifications and screenshots, along with memorialization of
inquiries accompanying the screenshots for the length of the license
term or one year, whichever is longer.
101. In response to commenter concerns about frequently having to
repeat the certification/screenshot process for short term leases, the
Second R&O concludes that, where a licensee and the same lessee enter
into recurring leases for the same programming over a one year period,
the licensee need only exercise its reasonable diligence obligations,
including the certification or screenshot process, once per year. This
modification of the proposals contained in the Second NPRM addresses
concerns raised in the record about the burdens associated with the
production of multiple certifications/screenshots over a limited period
of time when the lease concerns both the same lessee and lease.
102. The Second R&O reconfirms the finding from the First R&O that
the foreign sponsorship identification rules should not apply to NCEs.
The Second R&O also clarifies that the foreign sponsorship
identification requirements will not apply to advertising for
commercial products or services to the extent such advertising falls
within the exemption established in Sec. 73.1212(f) of the
Commission's rules. The Second R&O declines to adopt commenters'
request to create exemptions from the foreign sponsorship
identification rules for religious programming and locally produced
and/or locally distributed programming. The Second R&O finds that
creating an exemption for religious programming would not be content-
neutral. Additionally, the Second R&O determines that the mere fact
that programming is locally produced and/or locally distributed does
not signify that the programming lacks material provided by a foreign
governmental entity, such that there should be a blanket carveout for
locally produced and/or distributed programming from the foreign
sponsorship identification rules.
103. The requirements adopted in both the First R&O and Second R&O
will also apply to section 325(c) permit holders. However, because
section 325(c) permit holders do not have OPIFs, they will file their
foreign sponsorship disclosures in the publicly available International
Communications Filing System (ICFS).
104. Any lease agreements that are entered into, or that are
renewed, on or after the date that the Media Bureau publishes in the
Federal Register an announcement that the Office of Management and
Budget (OMB) has completed any review required under the Paperwork
Reduction Act of the rule modifications contained in the Second R&O
must comply with the requirements laid out in the Second R&O. Based on
commenter concerns about having to redo work associated with existing
leases that comply with the current foreign sponsorship identification
rules, the Commission determines that the rule modifications contained
in the Second R&O will apply only to new leases and renewals of
existing leases entered into on or after the required compliance date
for those rule modifications. The Second R&O directs the Commission's
Media Bureau to announce the compliance date for the new rules via
public notice and to revise Sec. 73.1212 of the rules accordingly.

F. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered

105. The RFA requires an agency to provide, ``a description of the
steps the agency has taken to minimize the

[[Page 57791]]

significant economic impact on small entities . . . including a
statement of the factual, policy, and legal reasons for selecting the
alternative adopted in the final rule and why each one of the other
significant alternatives to the rule considered by the agency which
affect the impact on small entities was rejected[.]'' 5 U.S.C.
604(a)(6).
106. The Second R&O carefully considers the concerns raised by
commenters, a number of which may represent, or themselves be, small
entities. In response to commenter concerns about burdens, the Second
R&O gives licensees greater flexibility than initially proposed in the
Second NPRM to determine how best to comply with the inquiry
memorialization requirement. In response to commenter concerns that the
standardized certification language proposed in the Second NPRM was too
lengthy, complex, and full of legalese, the Second R&O greatly reduces
the length and complexity of the standardized language and now employs
a simple check-box approach. The Second R&O allows licensees to use
their own certification language in response to comments expressing
concerns about licensees that already have developed their own
certifications based on the existing foreign sponsorship identification
rules and for whom revising these certifications would be costly. The
inquiries that must be contained in the self-generated certifications
align with the requirements contained in the First R&O and, thus,
previous certifications that are consistent with that order may not
need to be modified. Finally, the Second R&O also offers a licensee the
option to not use certifications at all, but to instead seek from its
lessee screenshots of the lessee's search of two Federal websites to
demonstrate whether the lessee's name appears on the sites, as well as
requiring the licensee to memorialize some additional queries, pursuant
to the First R&O, made to a lessee.
107. The Second NPRM proposed that licensees should retain all
certifications in their OPIFs. However, in response to commenter
concerns about this requirement, the Second R&O merely requires
licensees to retain copies of certifications and screenshots in their
personal files, with the option of uploading the documentation into
their OPIF if they choose. The certification and screenshot
requirements adopted in the Second R&O apply only to new leases and
renewals of existing leases entered into on or after the required
compliance date for the rule modifications. In response to commenter
concerns about having to redo work associated with existing leases that
comply with the current foreign sponsorship identification rules, the
Second R&O determines that the rule modifications contained in the
Second R&O will apply only to new leases and renewals of existing
leases entered into on or after the required compliance date for those
rule modifications. In response to some commenters' concerns regarding
the unique economic challenges of applying the rules to short-term
recurring leases, the Second R&O concludes that, where a licensee and
the same lessee enter into recurring leases for the same programming
over a one year period, the licensee need only exercise its reasonable
diligence obligations, including the certification or screenshot
process, once per year. In light of concerns raised in the record
regarding the proposal that licensees report to the Commission
instances in which lessees fail to respond to licensee queries, the
Second R&O determines that the licensee need not notify the Media
Bureau about a licensee's failure to respond and may still choose air
the programming.

G. Report to Congress

108. The Commission will send a copy of the Second R&O, including
this FRFA, in a report to Congress pursuant to the Congressional Review
Act. 5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a
copy of the Second R&O, including the FRFA, to the Chief Counsel for
Advocacy of the Small Business Administration.

VI. Ordering Clauses

109. Accordingly, it is ordered that, pursuant to the authority
contained in sections 1, 2, 4(i), 4(j), 303(r), 307, 317, and 325(c) of
the Communications Act, 47 U.S.C. 151, 152, 154(i), 154(j), 303(r),
307, 317, and 325(c) the Second R&O is adopted.
110. It is further ordered that the Petition for Clarification
filed by ABC Television Affiliates Association, CBS Television Network
Affiliates Association, FBC Television Affiliates Association, and NBC
Television Affiliates is dismissed as moot.
111. It is further ordered that the Second R&O shall be effective
August 15, 2024, except that the revisions to Sec. 73.1212(j)(3) of
the Commission's rules, 47 CFR 73.1212(j)(3), which may contain new or
modified information collection requirements, will not be required
until the Office of Management and Budget completes review of any
information collection requirements that the Media Bureau determines is
required under the Paperwork Reduction Act. The Commission further
directs the Media Bureau to announce the effective date for the
revisions to Sec. 73.1212(j)(3) by subsequent Public Notice.
112. It is further ordered that the Commission's Office of the
Secretary, Reference Information Center, shall send a copy of the
Second R&O, including the Final Regulatory Flexibility Analysis, to the
Chief Counsel for Advocacy of the Small Business Administration.
113. It is further ordered that Office of the Managing Director,
Performance Program Management, shall send a copy of the Second R&O in
a report to be sent to Congress and the Government Accountability
Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

VII. Approved Templates

Approved Template for Licensee Certification

Name of Licensee:------------------------------------------------------

Name of Lessee:--------------------------------------------------------

Name of Program:-------------------------------------------------------

Nature of Lease: New:_____

Renewal:_______

___ Licensee informed Lessee that FCC regulations require that a
disclosure accompany programming that is sponsored, paid for, or
furnished by a foreign governmental entity.

___ Licensee asked Lessee whether Lessee is a foreign governmental
entity. A foreign governmental entity can be a foreign government, a
foreign political party, an agent of a foreign principal, or a U.S.-
based foreign media outlet.\1\
---------------------------------------------------------------------------

\1\ See 47 CFR 73.1212(j). If more information is needed
regarding the definition of a foreign governmental entity, see the
FCC's rules at 47 CFR 73.1212(j)(2)(i) through (iv), which provide
that:
(i) The term ``government of a foreign country'' has the meaning
given such term in the Foreign Agents Registration Act of 1938
(FARA), 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 (FARA), 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 subsection
73.1212(j)(2)(i) and (ii), and that is acting in its capacity as an
agent of such ``foreign principal;'' and
(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)).

[[Page 57792]]

---------------------------------------------------------------------------

___Licensee asked Lessee whether it knows if any individual/entity in
the chain of producing or distributing the programming is a foreign
governmental entity and has provided some type of inducement to air the
programming.\2\
---------------------------------------------------------------------------

\2\ If the programming is political in nature, or involves the
discussion of a controversial issue, the FCC disclosure requirements
apply even if no compensation or payment, other than the programming
itself, was provided as an inducement to air the program.

___Licensee sought from Lessee a written response certifying Lessee's
---------------------------------------------------------------------------
answers. Lessee did___ did not___ provide a written certification.

___If applicable, Licensee obtained from Lessee the information needed
to add the following disclosure to Lessee's programming: ``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].''

On behalf of Licensee, I certify that the above statements are
accurate.

-----------------------------------------------------------------------
Name and Position

-----------------------------------------------------------------------
Signature

-----------------------------------------------------------------------
Date

Approved Template for Lessee Certification

Name of Licensee:------------------------------------------------------

Name of Lessee:--------------------------------------------------------

Name of Program:-------------------------------------------------------

Nature of Lease: New_____ Renewal: ________

1. Lessee is a foreign governmental entity. A foreign governmental
entity can be a foreign government, a foreign political party, an agent
of a foreign principal, or a U.S.-based foreign media outlet \3\
Yes:___ No: ___
---------------------------------------------------------------------------

\3\ See 47 CFR 73.1212(j). If more information is needed
regarding the definition of a foreign governmental entity, see the
FCC's rules at 47 CFR 73.1212(j)(2)(i) through (iv), which provide
that:
(i) The term ``government of a foreign country'' has the meaning
given such term in the Foreign Agents Registration Act of 1938
(FARA), 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 (FARA), 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 subsection
73.1212(j)(2)(i) and (ii), and that is acting in its capacity as an
agent of such ``foreign principal;'' and
(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)).

---------------------------------------------------------------------------
__If Yes, Lessee is an entity of the country of_____.

2. Lessee knows of an individual/entity in the chain of producing or
distributing the programming that is a foreign governmental entity and
has provided some type of inducement to air the programming.\4\ Yes:
___ No:___
---------------------------------------------------------------------------

\4\ If the programming is political in nature, or involves the
discussion of a controversial issue, the FCC disclosure requirements
apply even if no compensation or payment, other than the programming
itself, was provided as an inducement to air the program.

---------------------------------------------------------------------------
__If Yes, the name of the individual/entity is_____.

__If Yes, the name of the country is_____.

3. If applicable, Lessee has provided Licensee with the information
needed to append the following disclosure to lessee's programming,
consistent with the FCC's rules at 47 CFR 73.1212(j)(1)(i):

``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].''

On behalf of Lessee, I certify that the above statements are accurate.
-----------------------------------------------------------------------
Name and Position

-----------------------------------------------------------------------
Signature

-----------------------------------------------------------------------
Date

List of Subjects in 47 CFR Part 73

Radio, Reporting and recordkeeping requirements, Television.

Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer.

Final Rules

For the reasons discussed in the preamble, the 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. Effective August 15, 2024, amend Sec. 73.1212 by adding paragraph
(j)(8) and revising paragraph (k) to read as follows:

Sec. 73.1212 Sponsorship identification; list retention; related
requirements.

* * * * *
(j) * * *
(8) The requirements contained in this paragraph (j) shall not
apply to ``uses'' of broadcast stations by legally qualified candidates
pursuant to 47 U.S.C. 315.
(k) Where any material delivered to foreign broadcast stations
under an authorization pursuant to section 325(c) of the Communications
Act (47 U.S.C. 325(c)) has been sponsored by a foreign governmental
entity; paid for by a foreign governmental entity; furnished for free
by a foreign governmental entity to the section 325(c) permit holder as
an inducement to air the material on the foreign station; or provided
by the section 325(c) permit holder to the foreign station where the
section 325(c) permit holder is a foreign governmental entity, the
material must include, at the time of broadcast, the following
disclosure, in conformance with the terms of paragraphs (j)(4) through
(6) of this section: ``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].'' A section 325(c) permit holder shall ensure that the
foreign station will broadcast the disclosures along with the material
and shall place copies of the disclosures required along with the name
of the program to which the disclosures were appended in the
International Communications Electronic Filing System (ICFS) under the
relevant ICFS 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 ICFS in the same manner. The section 325(c)
permit holder shall exercise reasonable diligence to ascertain whether
the foreign sponsorship disclosure requirements of paragraphs (j)(1)
and (4) through (6) of this section apply to any material delivered to
a foreign broadcast station, including obtaining from its employees,
and from other persons with whom it deals directly in connection with
any matter for broadcast, and in the same manner prescribed for
broadcast stations in paragraph (j)(3) of this section, information to
enable the permit holder

[[Page 57793]]

to include the announcement required by this section; memorializing its
conduct of such reasonable diligence; and retaining such documentation
in its records for either the remainder of the then-current permit term
or one year, whichever is longer, so as to respond to any future
Commission inquiry. The term foreign governmental entity shall have the
meaning set forth in paragraph (j)(2) of this section.

0
3. Delayed indefinitely, further amend Sec. 73.1212 by revising
paragraphs (j)(3) introductory text and (j)(3)(iv) and (v) to read as
follows:

Sec. 73.1212 Sponsorship identification; list retention; related
requirements.

* * * * *
(j) * * *
(3) The licensee of each broadcast station shall exercise
reasonable diligence to ascertain whether the foreign sponsorship
disclosure requirements in paragraph (j)(1) of this section apply at
the time of the lease agreement and at any renewal thereof, or apply
within a one-year period if the lessee and the programming remain
unchanged, including:
* * * * *
(iv) Memorializing that the licensee has complied with the
requirements in paragraphs (j)(3)(i) through (iii) of this section and
has sought to obtain a response from the lessee with the information
needed to determine if a disclosure is necessary, and if one is
necessary, the information needed to make the disclosure, either:
(A) By executing a written certification attesting to the
licensee's compliance and by seeking a written certification from the
lessee; or
(B) By complying with the information requirement contained in
paragraph (j)(3)(i) of this section and by asking the lessee to provide
screenshots of its searches of the Department of Justice's FARA website
and the Commission's semi-annual U.S.-based foreign media outlets
reports, in the event that lessee has stated it is neither a FARA agent
nor a U.S.-based foreign media outlet, and asking lessee to provide
other information needed to make such a determination (i.e., asking
lessee whether it falls into the categories listed in paragraphs
(j)(2)(i) and (ii) of this section that are not covered by the request
for screenshots), and by making a record of the licensee's compliance
efforts; and
(v) Retaining the documentation in the licensee's records for the
remainder of the then-current license term or one year, whichever is
longer, so as to respond to any future Commission inquiry.
* * * * *
[FR Doc. 2024-15259 Filed 7-15-24; 8:45 am]
BILLING CODE 6712-01-P

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