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Federal Register / Vol. 86, No. 115 / Thursday, June 17, 2021 / Rules and Regulations
need for a disclosure because no one further back in the chain of producing/
transmitting the programming falls into one of the covered categories and has provided some form of service or consideration as an inducement to broadcast the programming; and 5 Memorialize the above-listed inquiries and investigations to track compliance in the event documentation is required to respond to any future Commission inquiry on the issue.
36. Finally, as discussed below, the Commission clarifies that the lessee, in accordance with sections 507b and c of the Act likewise carries an independent responsibility both to respond to the licensees inquiries and inform the licensee if, during the course of the lease arrangement, it becomes aware of any information that would trigger a disclosure pursuant to the new foreign sponsorship identification rules.
37. Licensees Responsibilities.
Pursuant to section 317c of the Act, the licensee bears the responsibility to engage in reasonable diligence to determine the true source of the programming aired on its station.
Section 317c of the Act states that the licensee of each radio station shall exercise reasonable diligence to obtain from its employees, and from other persons with whom it deals directly in connection with any program or program matter for broadcast, information to enable such licensee to make the announcement required by this section. This statutory provision is categoric and does not provide any exceptions, as it is the licensee who has been granted the right to use the public airwaves. As discussed in the NPRM, the licensee of a broadcast station must ultimately remain in control of the station and maintain responsibility for the material transmitted over its airwaves, even when it has entered into a leasing agreement. While this responsibility adheres in every instance, the Commission finds that it is particularly important here, where the record shows that the audience is typically unaware that the lessee/
brokering party that is sponsoring, paying for, or furnishing the programming could either be a foreign governmental entity or be passing through programming on behalf of such an entity.
38. As a threshold matter, the Commission expects the licensee to convey clearly to the prospective lessee that there is a Commission disclosure requirement regarding foreign government-provided programming. In this regard, the Commission finds that reasonable diligence also includes inquiring of the potential lessee whether
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it qualifies under the definition of a foreign governmental entity. Given that the licensee is entering into a contractual agreement that allows the lessee to program airtime or provide programming on the station, the Commission finds it reasonable to expect that the licensee make these basic inquiries of the lessee to ascertain whether the programming to be aired will require a disclosure under the rules the Commission adopt herein. The Commission notes that broadcasters may choose to implement these requirements through contractual provisions between the licensee and lessee though they are not required to do so.
39. The Commission also expects the licensee to inquire of the lessee whether in connection with the production or preparation of any program or program matter that it, or any sub-lessee, intends to air it is aware of any money, service or other valuable consideration from a foreign governmental entity provided as an inducement to air a part of such program or program matter.
Such an inquiry is consistent with sections 507b and c of the Act, which impose a duty on the lessee to inform the licensee to the extent it is aware of any payments or other valuable consideration, including inducements to air for free, associated with the programming such as to trigger a disclosure. Likewise, section 317b of the Act imposes an associated requirement on the licensee to make any disclosures necessitated by learning such information pursuant to section 507 of the Act. The Commission finds that this type of inquiry by the licensee is particularly important given reports about instances where programming originating from foreign governmental actors is being passed through program distributors who lease time on U.S.
broadcast stations.
40. If in response to the licensees initial inquiry, the lessee states that it falls within the definition of a foreign governmental entity, or is otherwise aware of the need for a foreign sponsorship identification disclosure, then the licensee needs to ensure that the programming contains the appropriate disclosure. As discussed above, licensees may become aware of the need for a foreign sponsorship identification disclosure via the reporting obligation contained in section 507 of the Act. On the other hand, if the lessees response is that it does not fall within the definition and is not separately aware of the need for a disclosure, the Commission requires the licensee to verify independently that the lessee does not qualify as a foreign
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governmental entity. To do so, at a minimum, the licensee will need to conduct certain independent searches.
Specifically, the licensee should check if the lessee appears on the Department of Justices most recent FARA list as an agent that is acting on behalf of a foreign principal that is either a government of a foreign country, as defined by FARA, or a foreign political party, as defined by FARA. The licensee should also check if the lessee appears on the FARA
list as an agent whose principal is either directly or indirectly operated, supervised, directed, owned, controlled, financed, or subsidized, in whole or in part, by a government of a foreign country, as defined by FARA, or a foreign political party as defined by FARA.
41. Put differently, if a lessee named ABC Corp. appears as an agent on the FARA list, but ABC Corp.s principal is XYZ Corp., the licensees search does not stop at this point simply because XYZ Corp. is neither a government of a foreign country nor a foreign political party. Rather the licensee should review ABC Corps filing to see whether XYZ
Corp is in fact directly or indirectly operated, supervised, directed, owned, controlled, financed, or subsidized, in whole or in part, by a government of a foreign country or a foreign political party. Such information will be indicated on the filing. If there is such direct or indirect operation, supervision, direction, ownership, control, financing, or subsidization, in whole or in part, then the programming aired by ABC
Corp. will need a foreign sponsorship disclosure.
42. In this regard, the Commission notes that the FARA database is simple to use and allows for a search by terms.
Consequently, the Commission anticipates that in most cases a licensee will need to do no more than merely run a search of the lessees name on the FARA database. If the search does not generate any results, the licensee can safely assume that the lessee is not a FARA agent and no further search is needed on the FARA database. If the lessees name does appear on the FARA
database, the licensee may need to review the materials filed as part of a given agents registration to ascertain whether the lessee qualifies as a foreign governmental entity. The licensee should also check if the lessees name appears in the Commissions semi-annual reports of U.S.-based foreign media outlets. If the lessees name does not appear on either the FARA list or in the U.S.-based foreign media outlet reports then no further checks are needed of these sites. Finally, the Commission requires that the
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