On Monday, January 23, the NRB weighed in on a Federal Communications Commission (FCC) proceeding regarding foreign sponsorship identification requirements for broadcasters.
In a comment filed in reply to the initial comments of the National Association of Broadcasters (NAB), the NRB concurred with the NAB’s recommendation that the Commission should refrain from applying foreign sponsorship identification rules to leases involving faith-based programming.
In concurring with the First Amendment arguments put forth by the NAB, the NRB drew the Commission’s attention to a discussion of compelled disclosures in a free speech context in the Supreme Court decision of National Institute of Family and Life Advocates v. Becerra, which states that a disclosure requirement “cannot be ‘unjustified or unduly burdensome,’” “must remedy a harm that is ‘potentially real not purely hypothetical,’” and “can extend ‘no broader than reasonably necessary.’”
“Moreover,” the NRB commented, “the FCC, as a federal agency, is subject to the jurisdiction of the Religious Freedom Restoration Act. . .This enactment prohibits any ‘substantial burden’ on the free exercise of religion unless the federal government ‘demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.’”
Added the NRB:
There is no history whatsoever of any religious broadcaster, be they licensee or lessee, of having any connection with any foreign government. It defies common sense to suggest that any such connection would ever realistically materialize. . . The record supports the conclusion offered by the NAB, that all religious broadcasters should be exempt entirely because of the high level of protections, the undue burden imposed, and complete absence of a factual predicate for the application of the regulation in this context.
A federal appeals court struck down the FCC’s initial attempt to implement prior foreign sponsorship identification rules 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 rule that broadcast licensees must independently consult two federal databases to verify whether any buyer of programming time is backed by a foreign government. In the current proceeding (MB Docket No. 20-299), the FCC has sought feedback on substitute measures to bolster broadcasters’ obligation to obtain verification that lessees are not acting on behalf of foreign governments.
NRB Public Policy participates in the agency rulemaking process to represent the interests of our members and advocate for a favorable business environment for broadcasters. We will continue to monitor this issue.