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New Bill Proposes that Broadcasters Be Investigators, Too

A new bill introduced last month could bulk up the burden on broadcasters to verify whether any programming on their stations was paid for or provided by a foreign government entity.

The “Identifying Propaganda on Our Airwaves” (IPA) Act (S. 4713/H.R. 9180) debuted on October 17, led by Sens. Brian Schatz (D-Hawaii) and Marsha Blackburn (R-Tenn.) in the Senate and Rep. Anna Eshoo (D-Calif.) in the House.

When broadcasters lease airtime to programming clients or renew such agreements, they must provide certain information to the FCC, including whether any content is sponsored or controlled by a foreign government. The IPA Act would authorize the FCC to specify additional sources that licensees must consult when performing these background checks. It would become the responsibility of stations to not only make inquiries of content vendors, but independently investigate by searching government databases plus any other information source that the FCC deems appropriate. This would add another hurdle to broadcasters’ already considerable regulatory compliance workload: conducting background checks on potentially dozens or hundreds of programmers to verify they are not foreign propaganda operations.

This law would have an especially burdensome impact on Christian broadcasters. Religious broadcasters work with local churches and Christian ministries to air sermons, worship services, and other programming to share the Gospel in their markets. Due to how Christian stations are programmed and their unique degree of collaboration with local churches and ministries, the number of brokered programming clients is often abundant compared to that of an ordinary broadcaster.

Chairwoman Jessica Rosenworcel and Commissioner Geoffrey Starks have signaled their support for a legislative step forward.

“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,” said Chair Rosenworcel in a statement. “Consumers deserve to trust that public airwaves aren’t being leased without their knowledge to foreign governments.”

“I thank Senators Schatz and Blackburn, and Representative Eshoo, for their leadership in ensuring that broadcasters do their due diligence to disclose the true source of foreign state-sponsored programming. The Communications Act—and fundamental notions of transparency—require no less,” said Commissioner Starks.

The issues at hand in this bill may sound familiar: A federal appeals court struck down the FCC’s initial attempt to implement this rule in July 2022. In National Association of Broadcasters v. FCC, the D.C. Circuit rejected, as beyond the scope of the FCC’s authority, the requirement in a 2021 FCC rule that broadcast licensees must independently consult two federal databases to verify whether any buyer of programming time is backed by a foreign government.

BroadcastLawBlog explains,

The FCC rule, Section 73.1212 (j), is designed to ensure that all broadcast programming that is paid for or sponsored by a foreign government or one of its agents is specifically identified on the air as having foreign government backing. The FCC required specific wording for on-air identifications for this programming paid for or produced by foreign governments or those that they finance. In addition, broadcast stations are required to get assurances in writing from all parties who pay for programming on their stations that the programmer is not a foreign government or an agent of any such government. The FCC rule went further, requiring that each station verify by checking FCC and DOJ databases that any programmer who certified that they were not a foreign government agent was in fact not a government agent. It was that last requirement – the requirement to check DOJ and FCC databases – that the Court rejected [in July 2022].

This court decision did not alter broadcasters’ obligation to obtain written certification that the programmer is not a foreign agent (or make appropriate disclosures), only the requirement that broadcasters independently verify that information by checking government databases. The IPA Act would effectively negate that decision by authorizing the FCC “to specify additional sources from which a radio station licensee must obtain information to enable the licensee to announce that a foreign governmental entity has paid for a broadcast.”

The IPA Act has not yet attracted any additional cosponsors, and the bill’s late introduction makes it unlikely to pass before the end of the legislative session. But the FCC has also issued a notice of proposed rulemaking proposing alternative measures to “fill the gap” created by the D.C. Circuit vacatur, such as providing standardized certification language for broadcasters and lessees to use in their certifications, or requiring the lessee to certify that their name does not appear on either of the two federal government websites referenced in the April 2021 rule.

If your stations would be affected adversely by these proposals, please let us know. NRB’s government relations office works to advocate for a favorable business environment for broadcasters and ease undue regulatory burdens wherever possible, and we will continue to monitor this issue.

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