Broadcasters may be battling new rules in court that would require them to determine whether an entity leasing time on their radio and TV stations has ties to a foreign government before putting the programming on the air. But in the meantime, they will need to make the changes adopted by the Federal Communications Commission in April. That is because the Media Bureau has rejected a petition that would have delayed the new rules from being implemented until the court case is decided.
The Media Bureau offers more than three dozen reasons why it rejected the request in its order, among them the conclusion that stations would suffer any irreparable harm. That is one of the arguments made by the National Association of Broadcasters, National Association of Black Owned Broadcasters, and the Multicultural Media, Telecom and Internet Council in their request. Filed in September, it said the delay is justified since stations will need to spend “significant sums” to hire and train employees to conduct the required investigations, as well as pay station attorneys to review their lease agreements and potentially make changes to bring them into compliance with the new FCC rules. The groups also warned that broadcasters may even lose some sponsored programming to platforms where such inquiries are not required.
‘Exaggerate And Mischaracterize’
But Media Bureau Chief Michelle Carey says broadcasters failed to prove their case, arguing the harm predicted is “conjectural” and consists of economic injuries that are “not severe enough” to be considered irreparable harm. She said the new obligations are a “reasonable extension” of radio and TV’s existing public file requirements and that broadcasters “exaggerate and mischaracterize” the level of knowledge or expertise that are needed to add the new requirement.
The FCC is also standing firm in its position that the foreign sponsorship identification rules do not violate the First Amendment, concluding broadcasters are unlikely to convince a court that they do.
Carey said the rules are “content neutral” because they require the announcement regardless of what type of programming a foreign government is beaming onto American radios and TVs. She also called proposals to narrow the rules to when a station had a suspicion that a foreign government was involved in a program as “inadequate” saying the government has an interest to limit the spread of foreign propaganda on U.S. airwaves.
Carey also concluded the new rules do not violate the Communications Act or are arbitrary and capricious as broadcasters claim. And she said many of the objections raised were considered during the rulemaking. “Any delay in the implementation of the Commission’s order will only further hamper the American audience’s ability to properly gauge the source of programming broadcast on the public airwaves and thus is contrary to the public interest,” Carey said.
Broadcasters Make Case In Court
The FCC earlier this year unanimously approved (MB Docket No. 20-299) rules requiring every station that leases blocks of time to ask the programming supplier about their connections to an overseas government when the agreement is signed. To determine what triggers such a designation, the FCC will rely on Department of Justice guideposts. It uses four definitions including a government of a foreign country, foreign political party, agent of a foreign principal, and a U.S.-based foreign media outlet. If a connection is found, the station would need to document the ties in its online public file and air new on-air disclosures at least once per hour.
The NAB, NABOB and MMTC are asking the U.S. Court of Appeals to examine the FCC decision. “Nothing in the law affords the Commission the latitude to require broadcasters to conduct research or investigations using any sources of information other than persons with whom broadcasters deal directly,” they said in a brief filed with the court on Tuesday.
The groups said the FCC’s new rules not only exceed the agency’s authority but also argue that less restrictive means were an option. “It could have limited investigative obligations to leases where the broadcaster had a reason to know the sponsor was a foreign governmental entity, or to programming on matters of public controversy,” the brief said. It also noted that the FCC decision failed to address the problems with undisclosed foreign governmental programming on cable systems and the internet, which is where broadcasters say the issue primarily exists.
“While we share the Commission's goal of ensuring the public understands when listening or viewing programming supplied by foreign governmental entities, the FCC's order fails to adequately, sensibly or fairly achieve this objective,” said NAB, MMTC and NABOB in a joint statement. “We appreciate the Court's consideration of this issue and believe it will agree that the Commission overstepped its bounds."