In presenting information about FCC issues at several broadcast conventions over the past few months, I find that broadcasters are most often surprised by the relatively new FCC rule that requires them to verify that everything programming time buyer on their station is not an agent of a foreign government. This week, the burden that this rule (of which we wrote here) imposed on broadcasters has been relaxed, where a Court canceled an aspect of the obligations imposed by the FCC.
FCC rule, Section 73.1212(j), is designed to ensure that any 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 the support of a foreign government. The FCC has required specific wording for on-air identifications of that programming paid for or produced by foreign governments or those they fund. In addition, broadcast stations are required to obtain written assurances from all parties who pay for their stations’ programming that the programmer is not a foreign government or an agent of such a government. The FCC rule went further, requiring each station to verify by checking FCC and DOJ databases that any programmer who certified that he was not a foreign government agent was in fact not a government official. It was this latter requirement — the requirement to check DOJ and FCC databases — that the Court rejected this week.
The NAB and others have challenged the FCC’s requirement that broadcasters verify these databases. Many broadcasters feared such an obligation would force them to check these databases every time they sold program times to anyone – even when it was clear the programmer was not an agent of a foreign government. . So the church, real estate agent or local lawyer who bought airtime would theoretically have to scour these databases to assure the broadcaster that the buyer was not an agent of a foreign government. The Court said this week that the requirement to take these proactive steps to verify that the purchaser of the program is not a foreign agent is beyond the authority of the FCC. A broadcaster is legally required to require programmers to identify the true sponsor of a program, but the court said that once the broadcaster made this inquiry of the buyer of the program and those involved in the channel of program supply, there is no longer any obligation for the broadcaster to investigate the veracity of what is said to it. The requirement to check government databases, the Court found, went too far.
Importantly, this decision does not alter the broadcaster’s obligation to ask the programmer to verify in writing that they are not a foreign agent and that no one in the program chain has received any money from a foreign government to produce the program (or, if it has received money from a foreign government, the station must complete the required on-air identification and place the relevant information in its public file online). But, once the decision of this Court is effective after the expiry of the appeal period, broadcasters no longer need to verify the information provided to them by verifying this information by checking government databases. So make sure that any agreement for the purchase of program time contains the required representation of the programmer – but soon (assuming there is no successful appeal of the Court’s decision) it won’t be no need to verify this information against government databases. And consult your own legal counsel to verify compliance with all remaining requirements of this rule.