Broadcast Groups Challenge Foreign-Sponsored Content Rules
The FCC’s rules for foreign-sponsored content are outside the agency’s authority and violate the Administrative Procedure Act, said a petition for review filed Friday in the U.S. Court of Appeals for the D.C. Circuit by NAB, the National Association of Black Owned Broadcasters, and the Multicultural Media, Telecom and Internet Council. Provisions in the rules that require broadcasters to investigate any entity leasing airtime are “overbroad,” said NABOB President James Winston in an interview (see 2104220074). “Broadcasters strongly oppose foreign interference in American elections, but the Commission’s order fails to even address this core objective,” the groups said in a joint news release.
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Under the new rules, approved 4-0 in April, the stations are required to use the Foreign Agents Registration Act and FCC databases to verify that those paying them to air content aren’t agents of foreign governments. “Many stations lease a lot of religious time,” Winston told us. The new rules even apply “to churches they’ve been doing business with for 20 years,” he said. The FCC “imposes these extensive burdens even when there is no reason to believe that the lessee is a foreign government-affiliated entity,” said Friday’s petition. Rep. Anna Eshoo, D-Calif., repeatedly backed the sponsored-content rules and was credited by acting Chairwoman Jessica Rosenworcel when they were approved. Eshoo's office didn’t comment Friday.
“Consumers should know who is behind what they see on their screens and hear on their radios,” said an FCC spokesperson. “The Commission did the right thing when we unanimously voted to bring more transparency to foreign government-sponsored programming airing on public airwaves.”
An ongoing challenge to those rules at the FCC from the network affiliate groups likely won’t interfere with the D.C. Circuit case, attorneys and NAB told us (see 2107190053). Their petition for clarification asks the FCC to make it clear that the sponsored content rules don’t apply to advertising. That’s a narrow issue that's separate from those raised with the court Friday, an NAB spokesperson said. When an FCC rule is challenged simultaneously in the courts and at the commission, the federal courts often delay acting until the agency matter is resolved, said Fletcher Heald broadcast attorney Donald Evans. That can take a long time, said Evans, who isn't associated with the case. The narrow scope of the affiliate petition and that it was filed by separate entities make it less likely that that will occur here, he said. The affiliate groups didn’t comment. Comments on the affiliate petition are due Sept. 2, replies Sept. 17 (see 2108030066).
NAB, NABOB and MMTC didn’t appeal the rules to the FCC before going to the courts because the agency was considered unlikely to reverse itself, NAB said. Broadcasters signaled in April they weren’t satisfied with the rules and that a legal challenge was likely (see 2104200074).
Requiring broadcasters to investigate other businesses using DOJ and FCC websites “is beyond the Commission’s statutory authority and contradicts its longstanding approach to sponsorship identification,” said the D.C. Circuit filing. The broadcast groups also argue that the FCC violated the APA by giving no notice that leases were the focus of the proceeding. The NPRM “did not ask a single question about the broad scope of broadcast station leases,” NAB, NABOB and MMTC said.