Foreign Sponsorship ID requirements ‘changed’ and ‘clarified’

The FCC on Monday published a report and order adopting a “new verification requirement” for foreign sponsor identification requirements, while clarifying existing requirements for broadcasting programs offered by organizations such as Sputnik.

The commission adopted the “Second Report and Order” by a 3-2 vote, with the Republican commissioner participating. Brendan Carr partly expressing a different opinion, being a GOP collaborator Nate Simington he completely disagreed.

R&O Purpose as Chair Jessica Rosenworcel and commissioners Anna Gomez AND Geoffrey Starks you see, “takes steps to ensure clear and reasonable policies for identifying foreign sponsorships.”

This follows the April 2021 R&O Regulation, which required radio and television stations to broadcast “clear information” regarding programs provided by a foreign government entity. This resulted in a decisive focus on Sputnik, the English-language service of Voice of Russia. In Washington, D.C., he can be heard on an FM translator on 105.5 MHz owned by communications law attorney John Garziglia. You can also listen to Sputnik programs in Kansas City KCXL-AM 11:40 for six hours a day. In each case, the programs are broadcast thanks to lease agreements with Florida companies RM Broadcasting limited liability company. A federal judge ordered RM Broadcasting in 2019 to register as a foreign agent.

Mandarin-language programming aimed at Chinese audiences in Southern California was also a target of the original R&O; Programs from CBC, BBC and other foreign sources are also subject to the rules.

However, there was a problem with the 2021 FCC regulations and the DC circuit National Association of Broadcasters et al., v. FCC, in 2022 ruled that one of the foreign sponsorship identification requirements established in the first R&O should be abolished.

This second demand and complaint concerns the judgment. This just pitted the Republicans on the Committee against the Democrats…again. According to the Rosenworcel Commission, it replaced the abandoned verification requirement with “an avoidance approach
the investigative obligation on the part of licensees, which was at issue in the case NAB v. FCC“

The new approach, most Democrats said, “provides licensees with two opportunities to demonstrate that they have met their investigative obligation in seeking to obtain information needed to determine whether a tenant-provided program is
sponsored by a foreign government entity.”

The approach taken, the Rosenworcel Commission adds, “addresses concerns about burden and complexity” raised by commenters in response to the second notice of proposed rulemaking leading to this second report and order.

Political advertising “explained”.

This is followed by a clarification that clearly states that the FCC’s rules for identifying foreign sponsors do not apply to the sale of advertising for commercial goods and services, only to programming.

What about political advertising?

“Our rules on identifying foreign sponsors will not apply to political candidates
advertising, but will apply to the broadcast of advertising and paid public service announcements,” the FCC says.

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“Our rules on identifying foreign sponsors will not apply to political candidates
advertisements, but will apply to the broadcasting of advertisements and paid public service announcements.”

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Meanwhile, the Rosenworcel Commission declined to create an exception to the rules for religious programming and locally produced and/or distributed programming.

Additionally, the FCC stated that where a lessee and a licensee enter into term leases for the same program, the licensee would be required to perform its “duties of care” under the once-a-year only rule with respect to that particular lessee and that particular program .

Applicable lease terms in effect at the time of the required compliance date for newly introduced modifications will be honored. In addition, the rule-making process also takes into account persons authorized under Art. 325(c). This would impact stations such as XEWW-AM 690 in Rosarito, Baja California, Mexico – the former “Mighty 690” which, at the time of the first R&O, broadcast URadio in Mandarin and targeted US audiences. Today it is a Spanish-language operation, aimed at a regional audience.

You can read the full second report and order by clicking here.

“TRANSPARENCY AND DEMOCRATIC VALUES”

In a statement, FCC Chairwoman Rosenworcel said: “The principle that the public has a right to know the identity of persons using the public airwaves is a long-standing principle of broadcasting… we are clarifying our policy for broadcasters by establishing a process to inform consumers when what hear or see by radio, was provided by a foreign person
government. Our action today is to support transparency and democratic values.”

For example, she said, “if a foreign government (such as the Chinese government) pays for broadcasting or campaign advertising, disclosure is required at the time of broadcast (simply stating that it comes from the Chinese government). As listeners, viewers and citizens, we have the right to know about it.”

In the case of Simington and Carr, it’s not that simple.

In a two-page dissent, Simington called the language of the Second R&O “nonsense,” concluding: “I have thought, and continue to think, that we should require foreign sponsor identification for airtime leasing. Since this point has practically nothing to do with this matter at present, I do not express my objection.”

Simington outperformed Rosenworcel and his Democratic colleagues. In a lengthy response he stated. “Letting Americans know that a foreign government has rented time on America’s airwaves is a good thing. That’s why I voted in favor of approving the Commission’s first cut to these rules as early as 2021. We indicated in the report and implementing regulation that: ‘By describing time leasing, however, we do not mean to suggest that traditional, short-form advertising time constitutes airtime leasing (for the purposes of identification of foreign sponsorship).” Ha ha. Kidding. As you can see, according to today’s decision, not only that YesWe he did mean that traditional short form advertising constitutes a ‘rental of airtime’ for these purposes but is subject to regulation he knew that we meant they did it when they asked us to clarify the limits of the exemption. (Currently ‘explain’ is the Commission’s euphemism for doing whatever it wants, precedent be damned.)’

This, Simington added, is “message to regulators who may have recently drawn inspiration from their understanding of whether the Commission considers short advertising in this proceeding to be the same as leasing airtime from the Second NPRM.”

The big problem for Simington: the distinction between advertising and programming airtime leasing arrangements.

He asks, “What did we mean by that? I don’t know. Maybe no one does it. AND Down however, know that a spontaneous reversal of the situation is a violation of the Administrative Procedure Act. We never noticed that by the terms “rental of airtime” and “shortened advertising” we meant the exact opposite what we said in 2021 and 2022.”

While Simington states that airtime leasing does include short advertisements, he concluded, “you can seek refuge in the Rocksteady safe havens that the Commission has invented over the last few weeks.”

Commissioner Carr’s dissent focused on how, on appeal, the D.C. Circuit struck down portions of the 2021 regulations that required broadcasters to positively screen potential foreign sponsors.

“Today’s regulation corrects this defect — in my opinion, legally,” Carr said. “If the Order limited itself to correcting this narrow issue on remand, I would fully support it.”

However, the second R&O goes further, Carr explained, by changing the 2021 definition of “lease” by eliminating the “short notice” exception. The order now requires broadcasters to comply with foreign regulations
the sponsorship principle for all third-party uses of airtime, with two key exceptions: (1) advertisements for political candidates and (2) advertisements meeting the commercial exemption provisions of Article
73.1212(f) of our regulations.

“In my opinion, the FCC has not given fair notice that it may change the definition of the term ‘lease’ in such a fundamental way,” Carr said. “If the FCC wished to consider rule changes that were not included in the second NPRM, it could supplement the data through a further notice or a supplemental public notice. The FCC did not do so in this case. “Thus, while this regulation corrects one legal imperfection highlighted in the D.C. Circuit, it creates new problems that may require us to reconsider our foreign sponsorship policies in future proceedings following another appeal.”