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Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations Commission could clarifyas the Commission has done with respect to foreign agentsthat the disclosure requirement also applies when an outlets foreign principal is directly or indirectly operated, supervised, directed, owned, controlled, financed, or subsidized by a government of a foreign country or by a foreign political party, the Commission notes that such a clarification would accomplish nothing as, pursuant to the National Defense Authorization Act NDAA, only entities whose foreign principals are a government of a foreign country or a foreign political party are required to report as U.S.-based foreign media outlets.
20. The Commission recognizes that the term U.S.-based foreign media outlet refers to an entity whose programming is either transmitted or intended for transmission by an MVPD, rather than by a broadcaster. But the Commission notes that there is no prohibition on such video programming also being transmitted by a broadcast television station, and it seems likely that an entity that is providing video programming to cable operators or direct broadcast satellite television providers might also seek to air such programming on broadcast stations.
Hence, the Commission believes it is appropriate to include U.S.-based foreign media outlets within the ambit of its proposal when the programming provided by such entities is aired by broadcast stations. No commenter opposed this proposal in response to the NPRM.
21. Foreign Missions. While the NPRM proposed to include foreign missions, as designated pursuant to the Foreign Missions Act, within the Commissions definition of foreign governmental entities that trigger foreign sponsorship identification, commenters have persuaded us otherwise. In particular, American Public Television Stations APTS and the Public Broadcasting Service PBS
referenced collectively herein as APTS
expressed concern with the potential difficulty of discerning whether an entity is considered a foreign mission under the Foreign Missions Act. APTS
noted that there is no single source identifying all foreign missions analogous to those that exist for FARA
registrants and U.S.-based foreign media outlets. The Commission agrees with commenters that the lack of a single source identifying all foreign missions creates an additional burden for licensees, as such entities cannot be as readily and consistently identified as FARA registrants and U.S.-based foreign media outlets.

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22. In addition, the Commission notes that, as discussed in the NPRM, most foreign missions are foreign embassies and consular offices. The primary purpose of the Foreign Missions Act is to confer upon such missions certain benefits, privileges, and immunities, while also requiring their observance of corresponding obligations in accordance with international law and principles of reciprocity. Other types of non-entities that are substantially owned or effectively controlled by a foreign government are from time to time designated as foreign missions at the discretion of the Secretary of State. By comparison the FARA statute is specifically designed to identify those entities and individuals whose activities should be disclosed because their activities are potentially intended to influence American public opinion, policy, and law. Based on the concerns raised by APTS and its own further review of the intent behind the statute, the Commission finds reliance on the Foreign Missions Act to be inappropriate and unnecessary for its intended purpose.
23. Other Potential Sources. In addition, the Commission declines to adopt APTSs suggestion that the list of FARA registrants included in the definition of foreign governmental entities be filtered through the United States Treasury Departments Office of Foreign Assets Control OFAC list of active U.S. sanctions. APTS asserts that its proposal would narrow the list of entities who qualify as a foreign governmental entity by linking this definition to a list of carefully predetermined countries whose interests are directly at odds with the United States. The Commission declines to adopt this proposal. First, doing so would seem to involve even more work for licensees, as it would require them to consult the OFAC list in addition to the FARA list. Second, and most importantly, the Commission finds the basis for compiling the OFAC list to be inconsistent with its purposes here. The Commissions goal in requiring additional disclosure by foreign governmental entities is not premised on distinctions between countries that may or may not be subject to the United States sanctions. Rather, the Commission seeks to provide the American public with greater transparency about programming provided by any foreign government, consistent with the requirements of section 317 of the Act. In this regard, the Commission finds that FARA, with its associated definitions and reporting
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requirements premised on promoting transparency with respect to foreign influence within the United States, is better aligned with the goals of the instant proceeding than the OFAC list.
As the Department of Justice has explained when discussing FARA, the governments concern is not the content of the speech but providing transparency about the true identity of the speaker.
24. Scope of Foreign Programming that Requires a Disclosure. While the Commission tentatively concluded in the NPRM that its proposed foreign sponsorship disclosure rules should apply in any circumstances in which a foreign governmental entity directly or indirectly provides material for broadcast or furnishes material to a station free of charge or at nominal cost as an inducement to broadcast such material, the Commission now narrows its focus to address specifically those circumstances in which a foreign governmental entity is programming a U.S. broadcast station pursuant to the lease of airtime. That is, for the reasons discussed below, the Commission will require a specific disclosure at the time of broadcast if material aired pursuant to the lease of time on the station has been sponsored, paid for, or, in the case of political program or any program involving the discussion of a controversial issue, if it has been furnished for free as an inducement to air by a foreign governmental entity.
While the Commission focuses in this Order on the identification of programming sponsored by foreign governmental entities aired through a lease of time, the Commission reiterates that its existing sponsorship identification rules, of course, continue to apply even outside the specific context described herein. As explained below, leasing agreements potentially subject to the rules include any arrangement in which a licensee makes a block of broadcast time on its station available to another party in return for some form of compensation.
25. Programming Aired Pursuant to a Lease of Time. Based on the record before us, the Commission agrees with National Public Radio and find that focusing on the airing of programming on U.S. broadcast stations pursuant to leasing agreements will address the primary present concern with foreign governmental actors gaining access to American airwaves without disclosing the programmings origin to the public.
To date, it appears that the reported instances of undisclosed foreign government programming aired on broadcast stations have involved lease agreements between a licensee and
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