Court Strikes Down Some (Not All) Foreign Program ID Requirements

For years, broadcasters have been required to provide sponsorship identification on advertising and paid sponsored programming. This issue moved to the “front burner” when the FCC expressed concerns about paid programming from foreign governments, especially China and Russia.

To address this problem, the FCC required stations to investigate these programs beyond the questions raised in the typical sponsorship ID context. Under the FCC’s regulations stations airing such foreign programs were required to:

1) Tell the sponsor about the FCC’s (§ 317) disclosure requirement.

2) Ask the sponsor whether it is a foreign governmental entity or an agent of one.

3) Ask the sponsor whether anyone further back in the production or distribution chain is a foreign governmental entity or an agent of one.

4) Independently confirm the sponsor’s status, at both the time of the lease and the time of any renewal, by checking the Department of Justice’s Foreign Agents Registration Act website and the FCC’s U.S.-based foreign media outlets reports; and

5) Document those inquiries and investigations.

In response to litigation brought by the NAB, the U.S. Court of Appeals struck down the fourth obligation. Under the court’s ruling, stations are no longer obligated to check the Department of Justice’s Foreign agents’ registration website or the FCC’s list to determine whether a program is being purchased by a foreign agent

The Court noted that a station’s obligation under Section 317 of the Communications Act is narrow.  Stations “need to be diligent in their efforts “to obtain” the necessary information “from” employees and sponsors.  The Court stated:

“Here, Congress chose the means for broadcasters to obtain the information necessary to announce who paid for programming: Ask employees and sponsors. The FCC cannot alter Congress’s choice. We hold that the FCC cannot require radio broadcasters to check federal sources to verify sponsors’ identities. We therefore vacate that aspect of the challenged order.

As a result, stations will no longer have to verify the information by checking with the two federal sources mentioned in element number four (above). Nonetheless, the obligation to check with the sponsor or employees regarding whether the content is being sponsored by a foreign government remains. A noted broadcast attorney, David Oxenford, has stated:

“Importantly, this decision does not alter the broadcaster’s obligation to have the programmer verify in writing that it is not a foreign agent and that no one in the program chain has received money from a foreign government to produce the program.”

 In other words, stations must continue to ask questions of the sponsors when accepting foreign programming.

A copy of the court decision can be found here.

A discussion of the court’s decision by noted communications attorney David Oxenford can be found here.