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Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations sponsorship over the airwaves is evident to the American public.
7. Significantly, the Commissions current sponsorship identification rules do not require a station to determine or disclose whether the source of its programming is in fact a foreign government, registered foreign agent, or foreign political party what the Commission refers to as a foreign governmental entity. As the NPRM
notes, in many instances a foreign government, foreign agent, or foreign political party providing programming to licensees may not be immediately identifiable as such. In other instances, the linkage between the foreign governmental entity and the entity providing the programming may be deliberately attenuated in an effort to obfuscate the true source of the programming. Although current rules require the disclosure of the sponsors name, the relationship of that sponsor to a foreign country is not required as part of the current disclosure.
8. Consequently, to ensure that the American public can better assess the programming that is delivered over the airwaves, the Commission found that there is a need to identify instances where foreign governmental entities are involved in the provision of broadcast programming. To that end, the NPRM
proposed to adopt specific disclosure requirements for broadcast programming to inform the public when programming has been paid for, or provided by, a foreign governmental entity and to identify the country involved. Specifically, the NPRM
proposed that when a foreign governmental entity has paid a radio or television station, directly or indirectly, to air material, or if the programming was provided to the station free of charge by such an entity as an inducement to broadcast the material, the station, at the time of the broadcast, shall include a specified disclosure indicating the name of the foreign governmental entity, as well as the related country.
9. In defining foreign governmental entity, the NPRM relied directly on parts of the FARA statute specifically the definitions of a government of a foreign country, foreign political party, and agents of foreign principals, which covers entities and individuals whose activities the United States Department of Justice Department of Justice or DOJ has identified as requiring disclosure because their activities are potentially intended to influence American public opinion, policy, and law. In addition, the NPRM proposed to include United States-based foreign media outlets, as
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defined by the Communications Act.
Under the proposal, any programming provided by a foreign governmental entity would be considered a political program under section 317a2 of the Act, and thus require identification of the sponsor of particular broadcast programing, even if the only inducement to air the programming was the provision of the programming itself.
The NPRM further explored the reasonable diligence standard that broadcasters must employ pursuant to their statutory 47 U.S.C. 317 c and regulatory 47 CFR 73.1212b and e requirements to determine whether its programming was provided by a foreign governmental entity.
10. The NPRM proposed that the disclosure requirements should apply in the context of time brokerage agreements TBAs and local marketing agreements LMAs. Moreover, the NPRM proposed to apply the new rules to entities authorized pursuant to section 325c to produce programing in the United States and transmit it to a non-U.S. licensed station in a foreign country for broadcast back into the United States. Also, the NPRM proposed that the disclosure requirements would apply equally to any programming transmitted on a radio or television stations multicast streams. Finally, in addition to specifying the characteristics of the proposed disclosures on television and radio, the NPRM
proposed that stations place a copy of the announcement in their online public inspection file OPIF.
11. A total of seven commenters filed comments and reply comments in response to the NPRM. The commenters generally support the Commissions goal of identifying foreign sponsorship of programming. Commenters assert, however, that the Commission must address how current regulations are inadequate before adopting new rules, and several commenters suggest ways to narrow the proposed scope of the rules to more directly address the programming that is of most concern, as discussed further below.
12. Discussion: For the reasons discussed below, the Commission adopts the rules proposed in the NPRM
with modifications to address more precisely the primary method by which foreign governmental entities appear to be gaining carriage for their programming on U.S.-licensed broadcast stations without disclosing the origin of such programming, namely through leasing agreements with such stations.
By narrowly focusing its requirements, the Commission seeks to minimize the burden of compliance on licensees, including those public television and
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radio stations that carry programming from entities that depend upon tax credits, access to international locations, and historical or archival footage from foreign governmental sources in producing their programming. The Commission further notes that such tailoring is in keeping with the First Amendment by focusing its rules narrowly on the area of potential harm.
13. Specifically, as discussed below, the new rules require foreign sponsorship identification for programming content aired on a station pursuant to a lease of airtime if the direct or indirect provider of the programming qualifies as a foreign governmental entity. In the first section below, the Commission analyzes which entities or individuals meet that definition and find that they include governments of foreign countries, foreign political parties, certain agents of foreign principals, and U.S.-based foreign media outlets. Next, the Commission discusses the scope of the foreign sponsorship identification rules, explaining why and how the Commission narrows the scope of the NPRMs proposed requirements to focus on programming aired on U.S. broadcast stations pursuant to an agreement for the lease of time. The Commission then discusses the scope of the reasonable diligence obligation that broadcast licensees must satisfy to determine if its lessee is a foreign governmental entity such that disclosures are necessary.
Next, the Commission discusses the content and frequency requirements for the mandated disclosures that will ensure the identification of foreign government-provided programming is conveyed effectively to the public. As the Commission makes clear in that section, the rules also require quarterly filings of copies of the disclosures, as well as the name of the program to which any disclosures are appended, in stations OPIF. Then, the Commission concludes that its foreign sponsorship identification rules apply equally to any programming broadcast pursuant to a section 325c permit. Finally, the Commission concludes that its foreign sponsorship identification rules satisfy the First Amendment and provide a cost-benefit analysis of those new rules.
14. Entities or Individuals Whose Involvement in the Provision of Programming Triggers a Disclosure. The Commission requires that programming aired on a station pursuant to a lease of airtime have a foreign sponsorship identification if the entity who has directly or indirectly provided the programming qualifies as a foreign governmental entity as defined herein.
Specifically, a foreign governmental
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