The NAB, Multicultural Media, Telecom and Internet Council (MMTC) and National Association of Black Owned Broadcasters (NABOB) have successfully convinced the United States Court of Appeals for the District of Columbia to vacate a FCC order mandating disclosures for foreign government-sponsored programming.
The ruling, which came on Tuesday, drew an immediate response from a disappointed FCC Chairwoman, Jessica Rosenworcel.
“The principle that the public has a right to know the identity of those who solicit their support is a fundamental and long-standing tenet of broadcasting,” Rosenworcel said. “It is about transparency. Consumers deserve to trust that public airwaves aren’t being leased without their knowledge to private foreign actors.”
For the NAB, MMTC and NABOB, however, the matter is a bit more complex.
In April 2021, the Commission unanimously adopted sponsorship identification requirements to require broadcasters to disclose when foreign governments or their representatives lease time on their airwaves.
This led the trio of broadcast media advocacy and lobbying groups to join together and seek a stay of the rules by the D.C. Circuit Court. In a reply brief filed with the court on January 10, the organizations refuted the FCC’s claims that it had authority to adopt the rules under the Communications Act and the First Amendment. The organizations also explained how, contrary to the FCC’s contentions, broadcasters face imminent, irreparable harm absent a stay. In particular, the NAB, NABOB and MMTC asserted that the Order “exceeds the Commission’s statutory authority, defies this Court’s precedent, and is unconstitutional.”
How so? The groups argued to the Circuit Court that the Order “imposes a duty to investigate government databases when this Court has construed the governing statute not to require any inquiry beyond the persons with whom a broadcaster deals directly. While each individual investigation may be circumscribed, the regulation’s extraordinary reach and sheer pointlessness make this content-based compulsion of speech not narrowly tailored and thus violative of the First Amendment.”
What would this mean for broadcast media stations? It was the contention of the NAB, MMTC and NABOB that an investigation would be required for every programming lease, even commercial and local programming (since virtually every lessee will deny, virtually always truthfully, that it or another person in the production or distribution chain is a foreign governmental entity, thus triggering the duty to investigate).
The seven-page D.C. Circuit Court ruling is nothing short of a victory for the NAB legal team, led by Rick Kaplan and Jerianne Timmerman.
In an opinion for the court filed by Circuit Judge Walker, it ruled:
In October 1964, Barry Goldwater’s supporters sponsored thirty minutes of television time for an actor named Ronald Reagan to make a closing argument for Goldwater’s struggling campaign. The speech — which failed to save Goldwater but launched Reagan on a path to the White House — was introduced with a stock announcement:
The following pre-recorded political program is sponsored by TV for Goldwater-Miller on behalf of Barry Goldwater, Republican candidate for President of the United States.
Today, similar announcements for sponsored radio broadcasts are required by the Communications Act of 1934. To make that announcement, a broadcaster must ask its employees and sponsors for information necessary to determine a sponsor’s identity. Recently, the FCC began to require more. It issued an order mandating that radio broadcasters check two federal sources to verify a sponsor’s identity. Because the FCC has no authority to impose that verification requirement, we vacate that facet of its order.
The Sponsorship Identification Requirements for Foreign Government-Provided Programming came amid heightened concerns that the Chinese and Russian governments were leasing airtime to broadcast what was seen by some as propaganda, and were doing so unknowingly. A five-step process was adopted by the Commission, one that included every licensee to “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.”
The NAB objected to this step, and petitioned for review.
As the Court, with Judge Walker as its voice, sees it, “The FCC’s verification requirement ignores the limits that the statute places on broadcasters’ narrow duty of inquiry. It instead tells a broadcaster to seek information from two federal sources in addition to the two sources that the statute prescribes. That is not the law that Congress wrote.”
NAB President/CEO Curtis LeGeyt released a statement noting that the association “appreciates the court’s careful review of the important issues in this case.”
He added, “Today’s decision ensures that the rules rightly continue requiring the handful of stations airing foreign government-sponsored programming to identify it as such, but removes the burden on the overwhelming majority of stations that never air foreign government-sponsored content.”
