Sponsorship Identification Requirements for Foreign Government-Provided Programming, 74955-74971 [2020-25458]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 85, Number 227 (Tuesday, November 24, 2020)]
[Proposed Rules]
[Pages 74955-74971]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25458]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket No. 20-299; FCC 20-146; FRS 17240]


Sponsorship Identification Requirements for Foreign Government-
Provided Programming

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission seeks comment on rules 
proposing to require specific disclosure requirements for broadcast 
programming that is paid for, or provided by a foreign government or 
its representative.

DATES: Comments due on or before December 24, 2020; reply comments due 
on or before January 25, 2021.

FOR FURTHER INFORMATION CONTACT: Radhika Karmarkar, Media Bureau, 
Industry Analysis Division, [email protected], (202) 418-1523.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM), FCC 20-146, in MB Docket No. 20-299, 
adopted on October 16, 2020, and released on

[[Page 74956]]

October 26, 2020. The complete text of this document is available 
electronically via the search function on the FCC's Electronic Document 
Management System (EDOCS) web page at https://apps.fcc.gov/edocs_public/ (https://apps.fcc.gov/edocs_public/). To request 
materials in accessible formats for people with disabilities (Braille, 
large print, electronic files, audio format), send an email to 
[email protected] (mail to: [email protected]) or call the FCC's Consumer and 
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 
(TTY).

Synopsis

    1. The principle that the public has a right to know the identity 
of those that solicit their support is a fundamental and long-standing 
tenet of broadcast regulation. The Commission's words from nearly sixty 
years ago, in the context of adopting changes to the sponsorship 
identification rules, remain equally applicable today: Perhaps to a 
greater extent today than ever before, the listening and viewing public 
is being confronted and beseeched by a multitude of diverse, and often 
conflicting, ideas and ideologies. Paramount to an informed opinion and 
wisdom of choice in such a climate is the public's need to know the 
identity of those persons or groups who solicit the public's support. 
To that end, throughout the history of broadcasting, Congress and the 
Commission have sought to ensure that the public is informed when 
airtime has been purchased in an effort to persuade audiences, finding 
it essential to ensure that audiences can distinguish between paid 
content and material chosen by the broadcaster itself. This 
transparency concept is encapsulated in section 317 of the 
Communications Act of 1934, as amended (the Act), and dates back to the 
Radio Act of 1927, which precedes the very creation of the Commission. 
Such transparency remains critically important today. Oftentimes, 
however, foreign governments pay for the airing of such programming, or 
provide it to broadcast stations free of charge, and the programming 
may not contain a clear indication, or sometimes any indication at all, 
to the listener or viewer that a foreign government has paid for, or 
provided, the content.
    2. While the Commission's current rules require a sponsorship 
identification when a station has been compensated for airing 
particular material, the rules require disclosure of the sponsor's name 
and do not, as part of its ``reasonable diligence,'' require that a 
station determine whether the source of the programming is in fact a 
foreign government or mandate that the connection to a foreign 
government is disclosed to the public at the time of broadcast. We 
believe, however, that the American people deserve to know when a 
foreign government has paid for programming, or furnished it for free, 
so that viewers and listeners can better evaluate the value and 
accuracy of such programming.
    3. Accordingly, by today's Notice of Proposed Rulemaking (NPRM), we 
propose to adopt specific disclosure requirements for broadcast 
programming that is paid for, or provided by a foreign government or 
its representative, so as to eliminate any possible ambiguity about the 
source of the programming. In this NPRM, our use of the term ``foreign 
government-provided programming'' refers to all programming that is 
provided by an entity or individual that falls into one of the five 
categories discussed below. In turn, the phrase ``provided by'' when 
used in relation to ``foreign government programming'' covers both the 
broadcast of programming in exchange for consideration and furnishing 
the programming for free as an inducement to broadcast the programming. 
In particular, we propose to amend Sec.  73.1212 of the Commission's 
rules to require a specific disclosure at the time of broadcast if a 
foreign governmental entity has paid a radio or television station, 
directly or indirectly, to air material, or if the programming was 
provided to the station free of charge by such an entity as an 
inducement to broadcast the material. Our proposed rules would provide 
standardized disclosure language for stations to use in such instances 
to specifically identify the foreign government involved.

Background

    4. The obligation that a broadcaster inform its audience when the 
station's airtime has been purchased (or the station is otherwise 
induced to air certain material) is a bedrock principle of broadcasting 
regulation that pre-dates the creation of the Commission. To ensure 
that audiences could distinguish between paid material and programming 
selected independently by the broadcaster, the Radio Act of 1927 
required broadcast stations to announce the name of any ``person, firm, 
company, or corporation'' that had paid ``valuable consideration'' 
either ``directly or indirectly'' to the station at the time of 
broadcasting the programming for which consideration had been paid. At 
the time, Representative Emanuel Cellar explained that Congress 
intended the statute to prohibit stations from disguising advertising 
as program content. With the creation of the Commission and the 
adoption of the Act, this disclosure requirement was incorporated 
almost verbatim into section 317 of the Act. The goal behind this 
disclosure requirement and the Commission's subsequent implementing 
regulations was to ensure that the public knew who had funded 
particular broadcast programming, without in any way censoring or 
prohibiting such programming.
    5. Over the years, various amendments to the rules, decisions by 
the Commission, and a 1960 amendment to section 317 of the Act have all 
continued to underscore the need for transparency and disclosure to the 
public about the true identity of a program's sponsor. Beginning in the 
1940s, radio news shows grew longer and obtained corporate sponsors, 
raising concerns about whether radio audiences could recognize who had 
sponsored broadcast programming. In December 1944, in the wake of 
increased unattributed political messaging in the run up to the 
presidential election between Franklin D. Roosevelt and Thomas Dewey, 
the Commission for the first time promulgated regulations pursuant to 
section 317, entitled ``Sponsored Programs, Announcements Of.'' These 
regulations established the core requirements for sponsorship 
identification, many of which remain intact today.
    6. The 1944 regulations stated that, with regard to all 
programming, broadcast stations had a duty to fully and fairly disclose 
the identity of the person or persons who had either provided 
consideration, or on whose behalf consideration had been provided, to 
the station. The new regulations also stated that where an agent or 
other person contracts or otherwise makes arrangements with a station 
on behalf of another, and such fact is known to the station, the 
announcement shall disclose the identity of the person or persons in 
whose behalf such agent is acting instead of the name of such agent. To 
the extent a corporation, committee, association, or other 
unincorporated group provided the consideration as an inducement to 
broadcast the programming, the station not only had to announce the 
name of the corporation, committee, association, or other 
unincorporated group, but also had to retain in its public inspection 
file a list of the executive officers of the organization that provided 
the consideration.
    7. The 1944 regulations also established a new requirement with 
regard to any political program or any

[[Page 74957]]

program involving the discussion of public controversial issues even 
though section 317 of the Act at that time made no such distinction 
among programming. With regard to political programming or programming 
discussing ``public controversial issues,'' the Commission's 1944 
regulations stated that the provision of any records, transcriptions, 
talent, scripts, or other material or services of any kind furnished, 
either directly or indirectly to the station could qualify as 
``consideration'' to trigger the sponsorship disclosure requirement. 
Because this was during the radio era, the types of materials that 
qualified as ``consideration'' essentially equated to providing the 
programming itself. The new regulation concerning political programming 
also dictated how frequently the sponsorship disclosure had to be made. 
According to then Sec.  3.409(b) of the Commission's rules, an 
announcement had to be made both at the beginning and end of the 
program, but in the case of any program whose duration was five minutes 
or less only one such announcement had to be made at either the 
beginning or end of the program.
    8. The Commission subsequently expounded on its regulation 
concerning programming involving political or controversial issues, 
including a 1958 case involving the transmission of filmed 
``summaries'' of Senate committee hearings by a television station 
without any disclosure that the costly summary had been packaged and 
provided by an outside entity. Although the films had been provided for 
free to the television station by another station, the National 
Association of Manufacturers (NAM) had actually paid for the initial 
production of the films and sought their distribution. The Commission 
found that the furnishing of the films clearly constituted valuable 
consideration, and that the films constituted ``discussion of public 
controversial issues. The Commission determined that the television 
station had not been sufficiently diligent in determining the source of 
the programming in this situation where a known representative of the 
NAM had informed the television station that the films would be 
provided free of charge by another station and the films were 
subsequently delivered to the broadcasting station postpaid. The 
Commission emphasized that in connection with material constituting a 
discussion of public controversial issues or a political discussion, 
the highest degree of diligence is called for in ascertaining, before 
the presentation thereof, the actual source responsible for furnishing 
the material.
    9. In 1960, Congress amended section 317 and added a new section to 
the Act to address the rapid growth of undisclosed program 
sponsorships. A series of heavily publicized congressional hearings 
highlighted the quiz show and payola scandals of the 1950s and revealed 
a widespread practice of undisclosed program sponsorships. The 
amendments to section 317 and the addition of section 507 to the Act 
brought about four major changes to the area of sponsorship 
identification. First, Congress codified almost verbatim the 
Commission's regulation concerning the broadcast of political material 
or material involving the discussion of a controversial issue. Second, 
Congress added section 507 to the Act, which imposed disclosure 
requirements on non-licensees, as well as the possibility of a fine or 
imprisonment for failure to adhere to these requirements. Section 507 
(a)-(c) imposed an obligation on employees of the licensee and those 
involved with either the production or the transmission of the 
programming to inform their employer, the station licensee, or the next 
person in the chain of individuals involved with transmitting the 
programming to the licensee, if any consideration had been paid to 
induce broadcasting of the program. Third, Congress simultaneously 
adopted a new section 317(b), which imposed a parallel obligation on 
the licensee to take note of any information provided pursuant to the 
new section 507 and to ensure any appropriate disclosures were made 
during the program. With regard to these amendments, the House Report 
accompanying the legislation stated the section as it has existed since 
the Federal Radio Act appears to go only to payments to licensees as 
such. The fact that licensees now delegate much of their actual 
programming responsibilities to others makes it imperative that the 
coverage of section 317 be extended in some appropriate manner to those 
in fact responsible for the selection and inclusion of broadcast 
matter. With these statutory amendments, Congress indicated that it was 
not just the immediate interactions among the licensee and others that 
are critical for determining whether any consideration was involved, 
but also interactions further back in the chain of individuals 
associated with providing the programming to the licensee. As a further 
corollary to the requirement that non-licensees disclose their 
knowledge about any consideration that has been provided, Congress also 
adopted a new section 317(c) that simultaneously imposed on the 
licensee the obligation to exercise reasonable diligence to obtain from 
its employees, and from other persons with whom it deals directly in 
connection with any programs or program matter for broadcast, 
information to enable such licensee to make the announcement required 
by this section. The fourth significant change that Congress made to 
the statute was the addition of section 317(e), which directed the 
Commission to prescribe rules and regulations to carry out the 
provisions of section 317.
    10. In 1962, the Commission issued a public notice specifically 
expressing concern about the lack of sponsorship identification in 
foreign documentary films and other broadcast matter containing 
political propaganda or controversial matter, sponsored and paid for by 
foreign governments and distributed by their agents. At that time, the 
Commission stated that section 317 of the Act and the Commission's 
rules require a sponsorship announcement fully and fairly disclosing 
the true identity of the person or persons furnishing such material, 
which would include identification of the foreign principal concerned. 
According to the public notice, the Act further places an obligation on 
Commission licensees to exercise reasonable diligence to obtain, from 
those with whom they deal directly in connection with any program, 
information to enable them to make the required announcement. In 1963, 
the Commission adopted rules implementing Congress's 1960 amendments to 
the Act. Ultimately contained in Sec.  73.1212 of the Commission's 
rules, the sponsorship identification rules largely track the 
provisions of section 317 of the Act. The rules restate the statutory 
requirement that all paid programming aired on a station, or 
programming for which some form of consideration has been provided to 
the station, must include an identification of the sponsor with the 
programming. In addition, with regard to any political broadcast matter 
or any broadcast matter involving the discussion of a controversial 
issue, the rules state that the programming itself (i.e., any film, 
record, transcription, talent, script, or other material or service of 
any kind) if provided as an inducement for the station to broadcast the 
programming will trigger the requirement to include sponsorship 
identification. The rules also implement the statutory requirement that 
licensees employ ``reasonable diligence'' to determine whether a 
sponsorship

[[Page 74958]]

identification is needed. Where an agent or other person contracts, or 
makes arrangements, with the station on behalf of another, and this 
fact is known, or could be known through the exercise of reasonable 
diligence, the licensee must identify in its announcement the identity 
of the person on whose behalf the agent acted, rather than the agent. 
The rules also provide an exception to the disclosure requirement for 
those instances where the identity of the sponsor and the fact of 
sponsorship of a commercial product or service is inherently obvious. 
Finally, the rules also contain certain requirements about the format 
and frequency of disclosures and about information that must be 
maintained in a licensee's public files regarding such disclosures.
    11. The evolution of the statutory sponsorship identification 
requirements in section 317 of the Act and the Commission's 
implementing regulations demonstrate the paramount importance that both 
Congress and the Commission place on broadcast audiences knowing who is 
trying to persuade them and specifically when airtime has been 
purchased, or programming furnished for free by, someone other than the 
broadcast station airing that programming. Indeed, section 317 and its 
implementing regulations strive to create the transparency essential to 
a well-functioning marketplace of ideas, and we believe that this need 
for transparency is particularly acute when programming from foreign 
governments is involved. Thus, in this item, we focus specifically on 
how to strengthen our disclosure requirements to make it more apparent 
when programming provided by foreign governmental entities is being 
transmitted over the national airwaves. Our focus in this NPRM on 
undisclosed foreign government programming is consistent with what 
appears to be a broader trend in the media sector to provide greater 
transparency about government funded programming.

Discussion

    12. As described above, the Commission last implemented a major 
change to its sponsorship identification rules in 1963. With the 
passage of nearly sixty years and the growing concerns with foreign 
government-provided programming, the time is ripe to update our 
sponsorship identification rules. The instant NPRM seeks to ensure 
that, consistent with our statutory mandate, foreign government program 
sponsorship over the airwaves is evident to the American public.
    13. To this end, we propose new sponsorship identification rules 
specifically targeted to situations where a station broadcasts material 
that has been sponsored and/or provided for free by a foreign 
government. In many instances, foreign government programming is not 
provided to licensees by an entity or individual immediately 
identifiable as a foreign government. For example, it might be a 
foreign government agency, which for no nefarious reason, simply does 
not include the name of the foreign country in its title. In other 
instances, however, the linkage between the foreign government and the 
entity providing the programming may be more attenuated in an effort to 
obfuscate the true source of the programming. Although our current 
rules require the disclosure of the sponsor's name, the relationship of 
that sponsor to a foreign country is not required as part of the 
current disclosure. But in the interests of transparency, we believe 
that such linkage must be clear. For example, if a media outlet 
controlled by a foreign government that is competing with the United 
States in the race to establish 5G technology were to distribute 
programming asserting that 5G services are a health hazard, it is 
important for the American public to know the true source of such 
programming so as to make an informed judgement about these assertions.
    14. In order to ensure that the American public can best assess the 
programming that is delivered over the airwaves, we seek to identify 
the foreign governmental entities that our new rule should be directed 
toward. To this end, we draw on established lists of foreign 
governmental actors whose activities already warrant disclosure of 
their identities, per the determinations of other U.S. agencies that 
are responsible for U.S. national security and foreign policy. Our 
proposed rule would be triggered if the sponsor of the content falls 
into one of the following categories: (1) A ``government of a foreign 
country'' as defined by the Foreign Agents Registration Act (FARA) (22 
U.S.C. 611 et seq.); (2) a ``foreign political party'' as defined by 
FARA; (3) an entity or individual registered as an ``agent of a foreign 
principal'' under FARA, whose ``foreign principal'' has the meaning 
given such term in section 611(b)(1) of FARA and that is acting in its 
capacity as an agent of such ``foreign principal''; (4) an entity 
designated as a ``foreign mission'' under the Foreign Missions Act (22 
U.S.C. 4301 et seq.); or (5) any entity meeting the definition of a 
``U.S.-based foreign media outlet'' pursuant to section 722 of the Act 
that has filed a report with the Commission. As discussed in greater 
detail below, entities or individuals falling into these categories 
have already been identified by statute or by a U.S. government agency 
(i.e., either the U.S. Department of Justice or U.S. Department of 
State) consistent with that agency's national security and foreign 
policy responsibilities, as being a ``foreign government'' or its 
representative whose activities warrant public disclosure of their 
identities and operations. By relying on these sources, the Commission 
can rely on existing information and thereby reduce the burdens on 
broadcasters as they identify which entity qualifies as a ``foreign 
governmental entity.'' We also discuss below what programming would 
trigger a standardized disclosure and what this disclosure should 
contain. We tentatively conclude below that any programming provided by 
an entity that qualifies as a ``foreign governmental entity''--whether 
in exchange for consideration or furnished for free (or at nominal 
charge) as an inducement to broadcast the material--would trigger a 
standardized disclosure requirement under our proposed regulations. To 
reduce the potential for any ambiguity about the form of the disclosure 
that a broadcaster must make regarding the foreign government-provided 
programming, we propose specific disclosure language and rules 
regarding the frequency of such disclosures. Our proposed standardized 
disclosure statement will not only simplify the disclosure process for 
licensees, but also make it easier for the viewing and listening public 
to discern when programming has been provided by a foreign government. 
Further, we seek comment on whether this proposed disclosure should be 
placed in a licensee's online public inspection file (OPIF) and, if so, 
how this requirement should be implemented.
    15. Additionally, as described above, section 317 of the Act and 
the Commission's rules establish a ``reasonable diligence'' standard 
that a licensee must employ to ascertain the true source of any 
programming. We explore below what could constitute ``reasonable 
diligence'' on the part of a licensee in determining whether 
programming has been provided by a foreign government. We also consider 
how the ``reasonable diligence'' standard should apply with regard to 
disclosures about foreign government-provided programming when the 
licensee has entered into a time brokerage agreement, and whether the 
obligations contained in sections 507(b) and (c) of the Act impose any 
requirements on brokers.

[[Page 74959]]

    16. Further, this NPRM addresses the applicability of our proposed 
requirements to those broadcasters transmitting programming pursuant to 
section 325(c) of the Act, as that provision concerns the broadcast of 
material for reception in the United States. In considering these 
various changes to our sponsorship identification rules, we also 
discuss the interplay between our proposals and the First Amendment. 
Finally, we seek comment on the benefits and burdens associated with 
adopting an express foreign government sponsorship disclosure 
requirement. In particular, we seek comment on how to quantify the 
widespread benefit of disclosing to the public the identity of foreign 
government-provided programming.

A. Entities or Individuals Whose Involvement in the Provision of 
Programming Triggers a Disclosure

    17. We tentatively conclude that if certain foreign entities or 
individuals have provided programming to a radio or television 
station--i.e., either paid for programming to be broadcast or furnished 
the programming free of charge as an inducement that it be broadcast--
then a disclosure regarding foreign government sponsorship is needed. 
Our focus in this NPRM on foreign government programming comports with 
historical concerns, both in the Communications Act and in Commission 
pronouncements, regarding foreign government influence on the nation's 
broadcast sector. In addition, in recent years, Congress has twice 
amended the Communications Act to add provisions that specifically 
focus on foreign government programming. In 2017, Congress added a new 
section 537a to the Act, which states that multichannel video 
programming distributors (MVPDs) are not required, as a condition of 
meeting their retransmission consent obligations, to carry programming 
sponsored by the Government of the Russian Federation. And, in 2018, 
Congress passed the National Defense Authorization Act for Fiscal Year 
2019, which added a provision requiring ``U.S.-based foreign media 
outlets'' to submit periodic reports to the Commission in an effort to 
provide greater transparency about foreign government programming 
transmitted by these media outlets.
    18. In determining what type of entities or individuals will 
trigger such a disclosure, we propose to rely on several existing 
sources that identify foreign governmental actors. As described above, 
it may not always be apparent from the name of the entity that has 
provided the programming that the entity is in fact a branch of a 
foreign government or otherwise working on behalf of a foreign 
government. Yet, it is important from the perspective of transparency 
for the American public to know the true source of the programming so 
they can best evaluate its value and accuracy.
    19. Rather than requiring licensees to engage in an unbounded 
investigation about any possible linkages between entities that provide 
programming and a foreign government, we propose that licensees look to 
already established sources of foreign governmental actors maintained 
by the U.S. government that identify foreign governmental actors or 
their agents operating in the United States. Specifically, under our 
proposal, if an entity or individual that fits into any of these 
categories provides programming to a broadcast radio or television 
station, then that information must be disclosed to listeners and 
viewers at the time the material is aired. The proposed categories are:
    1. A ``government of a foreign country'' as defined by FARA;
    2. A ``foreign political party'' as defined by FARA;
    3. An individual or entity registered as an ``agent of a foreign 
principal,'' under section 611(c) of FARA, whose ``foreign principal'' 
has the meaning given such term in section 611(b)(1) of FARA, and that 
is acting in its capacity as an agent of such ``foreign principal'';
    4. An entity designated as a ``foreign mission'' under the Foreign 
Missions Act; or
    5. An entity meeting the definition of a ``U.S.-based foreign media 
outlet'' pursuant to section 722 of the Act that has filed a report 
with the Commission.
    These five categories rely on existing statutes and determinations 
by the U.S. government as to when an entity or individual is a foreign 
government, or is acting on behalf of such an entity or individual. 
Relying on these categories of actors will draw on the substantial 
experience and authority in such matters that already exists within the 
federal government and avoid involving the Commission, or the 
broadcaster, in subjective determinations regarding who qualifies as a 
foreign governmental entity. We address each of these categories in 
turn below and seek comment on our proposed reliance on these existing 
categories, both individually and collectively. For example, are there 
alternative or additional sources of available information that could 
be used to determine when an entity or individual is acting on behalf 
of a foreign government?
    20. FARA. In linking the proposed disclosure requirement to those 
individuals defined by FARA, we rely on a statute specifically designed 
to identify those individuals and their activities that Congress has 
determined should be known to the U.S. government and the American 
public. As the United States Department of Justice (DOJ) has explained, 
the government's concern is not the content of the speech but providing 
transparency about the true identity of the speaker. FARA requires 
``agents of foreign principals'' engaged in certain activities in the 
United States on behalf of foreign interests to register with the DOJ. 
Our reliance on FARA narrows the scope of our proposal to only those 
entities and individuals whose activities have been identified by the 
DOJ as requiring disclosure because their activities are potentially 
intended to influence American public opinion, policy, and law. 
Reliance on FARA also ensures that the scope of our proposal is not 
broader than necessary as FARA exempts from its registration 
individuals and entities engaged in activities such as humanitarian 
fundraising; bona fide commercial activity; religious, scholastic, 
academic, fine arts, or scientific pursuits; and other activities not 
serving predominantly a foreign interest.
    21. We tentatively conclude to include a ``government of a foreign 
country,'' as defined by FARA, within the group of entities and 
individuals that trigger our proposed disclosure requirement, given 
that our primary focus in this NPRM is on ensuring that foreign 
government-provided programming is properly disclosed to the public. 
Thus, instead of seeking to craft our own definition, we find it more 
appropriate to turn to a definition of ``foreign government'' contained 
in a pre-existing statute that was designed to promote transparency 
about foreign governmental activity in the United States. We also find 
it appropriate to include ``foreign political party'' as that term is 
defined by FARA within our proposed definition of ``foreign 
governmental entity.'' The FARA definition of ``foreign political 
party'' covers any entity that is in ``control'' of or engaged in the 
``administration'' of a foreign government, or is seeking to acquire 
such ``control'' or ``administration.'' Given that a ``foreign 
political party'' may already be in control of or administering a 
foreign government, or that the DOJ may have determined that such 
entity is seeking to acquire such a role, we tentatively conclude that 
it furthers our goal of

[[Page 74960]]

providing the American public with greater transparency about foreign 
government-provided broadcast programming to include such an entity 
within the ambit of a ``foreign governmental entity.'' We seek comment 
on our tentative conclusions to include both a ``government of a 
foreign country'' and ``foreign political party,'' as those terms are 
defined by FARA, within our definition of ``foreign governmental 
entity.''
    22. FARA generally requires an ``agent of foreign principal'' 
undertaking certain activities in the United States (such as, political 
activities, acting in the role of public relations counsel, publicity 
agent, or political consultant) on behalf of a foreign principal to 
register with the DOJ. Section 611(b)(1) of FARA states that the term 
``foreign principal'' includes the ``government of a foreign country'' 
and a ``foreign political party.'' For purposes of our proposed 
disclosure requirement, we include only those agents whose foreign 
principal is either a ``government of a foreign country'' or a 
``foreign political party'' as those terms are defined in sections 
611(e) and (f) of FARA respectively. We recognize that a given entity 
may be registered as an agent for multiple ``foreign principals'' or 
for a ``foreign principal'' other than a ``government of a foreign 
country'' or a ``foreign political party.'' We emphasize, however, that 
our proposed disclosure requirement applies only when the FARA agent is 
acting in its capacity as a registered agent of a ``government of a 
foreign country'' or a ``foreign political party.'' We seek comment on 
this approach.
    23. FARA requires that an agent of a foreign principal file copies 
with the DOJ of informational materials that it distributes for its 
foreign principal, and maintain records of its activities. In addition, 
to the extent that the agent of a foreign principal transmits materials 
in the ``United States mails or by any means or instrumentality of 
interstate or foreign commerce,'' it must include ``a conspicuous 
statement that the materials are distributed by the agent on behalf of 
the foreign principal'' when the materials are transmitted. We 
tentatively conclude that it is appropriate to include an ``agent of a 
foreign principal'' whose ``foreign principal'' is either a 
``government of a foreign country'' or a ``foreign political party'' 
within the group of entities and individuals that trigger our proposed 
disclosure requirement, as the intent behind FARA is to reveal to the 
American public the names and operations of those entities and 
individuals working in the U.S. on behalf of foreign interests in a way 
that seeks to influence public opinion. To the extent that an agent of 
a foreign principal, whose ``foreign principal'' is either a 
``government of a foreign country'' or a ``foreign political party,'' 
is providing programming to U.S. broadcast stations in its capacity as 
an agent to that principal, it is reasonable that the public should be 
made aware of that fact.
    24. The DOJ maintains a database of FARA registrants on its website 
that is publicly available and easily searchable. In addition, the DOJ 
provides regular reports to Congress containing the names of, and 
information about, FARA registrants; such reports are also available on 
the DOJ website. Consequently, relying on the database of FARA 
registrants should provide an easy mechanism by which a broadcast 
station licensee can determine whether an entity or individual that 
purchases airtime on the station, or provides programming to the 
station for free, is in fact an ``agent of a foreign principal.'' We 
seek comment on this analysis and on the appropriateness of using 
registration as an ``agent of a foreign principal'' under FARA as one 
of the bases for the disclosure we propose herein. Is there any reason 
that reliance on FARA registration is problematic?
    25. We recognize that there could be a lag between the time an 
individual registers pursuant to FARA and when the individual's name 
appears in the public FARA database. We seek comment on whether the 
disclosure requirement should apply only to those individuals whose 
names appear on the public FARA list or whether the requirement should 
apply once the individual has registered under FARA, irrespective of 
when the individual's name appears on the public list. While appearance 
on the public list makes it easier to determine an individual's status 
as an ``agent of a foreign principal,'' pursuant to section 317(c) of 
the Act, a broadcast licensee must engage in ``reasonable diligence'' 
to determine whether a disclosure is required for the programming it 
transmits, as discussed further below. The Commission's existing rules 
incorporate the general ``reasonable diligence'' requirement of section 
317 of the Act, and also state that where an agent or other person or 
entity contracts or otherwise makes arrangements with a station on 
behalf of another, and such fact is known or by the exercise of 
reasonable diligence, as specified in paragraph (b) of this section, 
could be known to the station, the announcement shall disclose the 
identity of the person or persons or entity on whose behalf such agent 
is acting instead of the name of such agent. In most, if not all 
instances, can the broadcast licensee simply ask the individuals 
involved with providing the programming (especially the individual that 
provides the programming to the station) whether they fall into one of 
the categories that would trigger a disclosure under our proposed 
rules? We emphasize here that our focus in this proceeding is only on 
those FARA ``foreign principals'' who fall into the categories of 
``government of a foreign country'' or ``foreign political party'' and 
their agents even though FARA also designates other types of entities 
as ``foreign principals.'' After all, an individual or entity that has 
registered, or been directed to do so, pursuant to FARA, is aware of 
its status as an ``agent of a foreign principal'' and who its ``foreign 
principal'' is. How much added burden would broadcasters bear in adding 
this inquiry to their longstanding section 317 reasonable diligence 
inquiry?
    26. Foreign Missions. We likewise tentatively conclude that those 
entities designated as ``foreign missions'' pursuant to the Foreign 
Missions Act should also be included in our proposed disclosure rule. 
The Office of Foreign Missions, located within the U.S. Department of 
State, has the authority to designate as a ``foreign mission,'' an 
entity that is substantially owned or effectively controlled by a 
foreign government. While most ``foreign missions'' are entities and 
individuals traditionally viewed as foreign embassies or consular 
offices, the Office of Foreign Missions has determined on occasion that 
certain foreign media outlets also qualify as ``foreign missions.'' For 
example, in 2019, the Office of Foreign Missions designated five 
Chinese media organizations as ``foreign missions.'' We tentatively 
conclude that including ``foreign missions'' among the entities subject 
to our proposed disclosure requirement furthers our goal of providing 
the American public with the greatest degree of transparency about the 
source of programming linked to foreign governments. We seek comment on 
this tentative conclusion and the appropriateness of relying on this 
source for identifying foreign governmental actors.
    27. We note that, while the U.S. Department of State does not 
maintain a publicly available list of foreign missions as the DOJ does 
with respect to FARA registrants, determinations made pursuant to the 
Foreign Missions Act by the U.S. Department of State are published as 
public notices in the Federal Register. Accordingly, the

[[Page 74961]]

licensee's duty to exercise reasonable diligence to determine whether 
sponsorship disclosure is required should result in the identification 
of such entities, and in some instances the status of the entity or 
individual providing the programming may be readily apparent (for 
example, if a foreign embassy itself purchases airtime in its own 
name). We seek comment on this analysis.
    28. U.S.-Based Foreign Media Outlet. Consistent with our goal of 
leveraging the U.S. government's existing identification of foreign 
governmental actors, we tentatively conclude that our disclosure 
requirement should also include any entity or individual subject to 
section 722 of the Act that has filed a report with the Commission. 
Section 722, which was added to the Act in 2018, applies to a U.S.-
based foreign media outlet that: (a) Produces or distributes video 
programming that is transmitted, or intended for transmission, by a 
multichannel video programming distributor (MVPD) to consumers in the 
United States; and (b) would be an agent of a ``foreign principal'' for 
purposes of FARA. These ``U.S.-based foreign media outlets'' must 
periodically file reports with the Commission and, in turn, the 
Commission must provide a report to Congress summarizing those filings. 
Section 722 provides that the term ``foreign principal'' has the 
meaning given such term in section 611(b)(1) of FARA, which limits the 
scope of the definition of ``foreign principal'' to ``a government of a 
foreign country and a ``foreign political party.'' We incorporate this 
limitation from section 722 of the Act into our proposed rules and note 
that such a limitation is consistent with our proposal above to include 
both a ``government of a foreign country'' and ``foreign political 
party,'' as those terms are defined by FARA, within our definition of 
``foreign governmental entity.'' We seek comment on this approach.
    29. We recognize that the term ``U.S.-based foreign media outlet'' 
refers to an entity whose programming is either transmitted or intended 
for transmission by an MVPD, rather than a broadcaster. But we note 
that there is no prohibition on such video programming also being 
transmitted by a broadcast television station, and it seems likely that 
an entity that is providing video programming to cable operators or 
direct broadcast satellite television providers might also seek to air 
such programming on broadcast stations. Hence, we propose to include 
``U.S.-based foreign media outlets'' within the ambit of our proposal. 
We also recognize that to qualify as a ``U.S.-based foreign media 
outlet'' for purposes of section 722 of the Act, the entity at issue 
must qualify as a ``foreign agent'' pursuant to FARA and, hence, may 
already be covered by our first proposed category. Nevertheless, out of 
an abundance of caution, we propose to include these entities within 
the coverage of our proposal and seek comment on their inclusion.
    30. We recognize that the proposed categories discussed above may 
not cover all of the foreign governmental entities or individuals that 
provide programming to U.S. broadcasters. Thus, we seek comment on 
whether there are other identifiable categories of entities or 
individuals that should be included within the coverage of our proposed 
rules. We note that the categories listed above are based on existing 
sources so that broadcasters are not burdened unnecessarily in 
determining when our proposed disclosures are required and seek comment 
on whether there are other such sources. Are there indicia of foreign 
government involvement in the provision of programming that 
broadcasters could identify more easily and readily than the Commission 
could? That is, are there other criteria that we should include within 
our proposed rules to ensure that we implement our obligation under 
section 317 to uphold the American public's right to know the source of 
its programming as comprehensively as possible? Would requiring 
broadcasters to take more responsibility for determining whose 
provision of programming triggers disclosure be consistent with the 
statutory language requiring ``reasonable diligence'' on the part of 
broadcasters?

B. Scope of Foreign Programming That Would Require a Disclosure

    31. We tentatively conclude that, in the interest of greater 
transparency for the American people, any broadcast programming that 
has been provided by an entity or individual that fits within one of 
the five categories described above would trigger the need for a 
disclosure under our proposed rules. Specifically, we tentatively 
conclude that a standardized disclosure would be required whenever a 
``foreign governmental entity,'' as defined in our proposal, has paid a 
station to air the material or furnished the material to a station free 
of charge (or at nominal cost) as an inducement to broadcast such 
material. As discussed below, we believe that requiring a disclosure to 
inform the audience of the source of the programming whenever a foreign 
governmental entity provides programming to a station for broadcast is 
wholly consistent with sections 317(a)(1) and (2) of the Act.
    32. Pursuant to section 317(a)(1), a licensee must include a 
disclosure with all programming for which a station has received any 
form of payment or consideration, either directly or indirectly. Under 
this section, there is no minimum level of ``consideration'' required 
to trigger the disclosure requirement. Thus, consistent with the 
statute and our current sponsorship identification rules, we 
tentatively conclude that standardized disclosure requirements would be 
triggered under the rules proposed in this NPRM if any money, service, 
or other valuable consideration is directly or indirectly paid or 
promised to, or charged or accepted by a broadcast station in exchange 
for the airing of material selected by a foreign governmental entity. 
In connection with the rules we propose herein, we expect that 
licensees will be vigilant about whether any form of consideration has 
been provided in exchange for the lease of airtime or in exchange for 
the airing of materials, and that an appropriate disclosure will be 
made about the involvement of a foreign governmental entity. We seek 
comment on this tentative conclusion.
    33. In addition, section 317(a)(2) of the Act establishes that a 
sponsorship disclosure may be required in some circumstances, even if 
the only ``consideration'' being offered to the station in exchange for 
the airing of the material is the programming itself. Specifically, 
section 317(a)(2) provides that a disclosure is required at the time of 
broadcast in the case of any political program or any program involving 
the discussion of a controversial issue if the program itself was 
furnished free of charge, or at nominal cost, as an inducement for its 
broadcast. We recognize that to date the Commission's interpretation of 
``political program'' in the context of section 317(a)(2) has generally 
involved programming seeking to persuade or dissuade the American 
public on a given political candidate or policy issue. For example, the 
Commission and the federal courts have previously treated such things 
as a program discussing a political candidate's past record, as well as 
a proposition on the California ballot, as a ``political program'' 
pursuant to section 317(a)(2) of the Act. We tentatively conclude, 
however, that it is appropriate to interpret ``political program'' more 
broadly to cover foreign government-provided programming. Thus, we 
tentatively conclude that the nature of the entities or individuals 
that would trigger our proposed new

[[Page 74962]]

disclosure requirement is such that any and all programming furnished 
by these entities or individuals falls within the category of a 
``political program'' under section 317(a)(2).
    34. As described in greater detail above, all of the entities or 
individuals that qualify as a ``foreign governmental entity'' for 
purposes of our proposed rules either explicitly or implicitly are 
seeking to influence U.S. public policy or opinion on behalf of a 
foreign government or an entity that seeks to be in control of a 
foreign government (i.e., a ``foreign political party''). Our proposed 
definition of what constitutes a ``foreign governmental entity'' draws 
from the FARA definitions of a '' government of a foreign country,'' a 
``foreign political party,'' or an ``agent'' of the same under FARA, or 
else is a ``foreign mission.'' Consequently, we seek comment on whether 
any material provided by these specific entities for dissemination on a 
U.S. broadcast station qualifies as a ``political program'' pursuant to 
section 317(a)(2). Most of the activities that trigger designation as 
the ``agent of a foreign principal'' under FARA explicitly involve 
influencing either the U.S. political process or the U.S. government. 
Moreover, FARA does not require individuals and entities to register as 
agents of foreign principals if their activities fall within certain 
exemptions, and, thus, our proposal minimizes the possibility of 
including more programming than intended as a ``political program.'' 
Foreign agents engaged in activities such as humanitarian fundraising, 
bona fide commercial activity, religious, scholastic, academic, fine 
arts, or scientific pursuits are exempted from having to register under 
FARA. To the extent the entity involved with providing the programming 
is a ``government of a foreign country,'' as defined by FARA, a 
``foreign political party,'' as defined by FARA, or a ``foreign 
mission,'' all of these entities are essentially an arm of a foreign 
government representing that government's interests in the United 
States, or with regard to a ``foreign political party,'' an entity that 
is administering, is in control of, or seeks to be in control of such 
foreign government. Thus, we find it reasonable to view the activities 
of these entities as ``political'' in nature for purposes of section 
317(a)(2), including any provision of programming for broadcast in the 
United States. Accordingly, we seek comment on whether any programming 
furnished to a U.S. broadcast station by any ``foreign governmental 
entity,'' as we propose to define this term, constitutes a ``political 
program'' for purposes of section 317(a)(2) of the Act. To the extent 
that all of the programming furnished by those entities or individuals 
is considered to be a ``political program'' under section 317(a)(2) of 
the Act, then broadcasters would not need to make a separate 
determination about whether ``consideration'' has been provided as the 
furnishing of the programming itself would trigger our proposed 
disclosure requirement. We seek comment on this analysis.

C. Contents of Required Disclosure of Foreign Sponsorship

    35. We tentatively conclude that any new regulations regarding 
foreign government-provided programming should standardize the content, 
format, and frequency of disclosures. We seek comment on this tentative 
conclusion. In terms of content, we propose to require disclosure, at 
the time of broadcast, of the following information: (a) The fact that 
such programming is paid for, or furnished free of charge, either in 
whole or in part, by a foreign governmental entity as described above; 
(b) the name of the entity or individual that paid for or furnished the 
programming free of charge to the station; and (c) the name of the 
country that the entity or individual represents. We seek comment on 
this proposal and on whether the disclosure should contain any 
additional or alternative information at the time of broadcast. We also 
seek input from commenters about examples of foreign government-
provided programming where the disclosures were or were not sufficient 
to identify the foreign government involved.
    36. We note that, in other contexts, the Commission has adopted a 
set script for required announcements on television and radio, as well 
as requirements for the timing of, and the frequency with which, such 
announcements must be made. Also, the DOJ under FARA currently requires 
materials televised or broadcast by agents of foreign principals to be 
labeled with an introductory statement ``which is reasonably adapted to 
convey to the viewers or listeners thereof such information'' that the 
materials are televised or broadcast by an agent of a foreign principal 
and provides standardized language for such statements. In a similar 
fashion, we propose that the language for our required disclosure 
should be standardized to avoid confusion and to ensure that the 
information is conveyed clearly and concisely to the audience. 
Accordingly, we propose that at the time a station broadcasts material 
that was provided by a foreign governmental entity a disclaimer 
identifying that fact and the origin of the programming be included as 
follows:

    ``The [following/preceding] programming was paid for, or 
furnished, either in whole or in part, by [name of foreign 
governmental entity] on behalf of [name of foreign country].''

    37. We seek comment on this proposal, including both the specific 
language we have proposed, and the proposal to mandate standardized 
language. Is there additional language or information that we should 
include to ensure that the public is properly informed that the 
programming content that they are receiving has been provided by a 
foreign government? Should stations have the discretion to include 
additional language beyond what is required if the broadcaster thinks 
such information would be germane to the public's reception of the 
broadcast programming? Should the disclaimer be the same for both video 
and audio programming? Should the disclaimer be in English, in the 
primary language of the broadcast if other than English, or both? 
Should the disclaimer use language other than ``paid for'' or 
``furnished by,'' what terms should be used instead, and would the use 
of alternative terms be consistent with the requirements of section 
317(a)(1)? How, if at all, should the existence of the FARA 
requirements affect the rules we propose today? That is, how can we 
ensure that we do not impose duplicative, or potentially inconsistent, 
requirements on broadcast licensees.
    38. We also seek comment on whether our proposed disclosure 
requirements might duplicate aspects of the labeling requirements 
imposed by FARA, and, if so, how the Commission might address any 
overlap or interplay between the two requirements. Notably, the rule we 
propose herein would apply to broadcast station licensees, whereas the 
FARA labeling obligation applies to the FARA registrants. Accordingly, 
we tentatively conclude that, given the Commission's existing 
sponsorship identification rules and our statutory mandate to ensure 
broadcast stations meet their public interest obligation, the existence 
of FARA labeling requirements does not preclude the Commission from 
proposing requirements specific to broadcast licensees, especially as 
the Commission and DOJ share subject matter jurisdiction in other 
contexts. For example, the Commission has been tasked by Congress per 
the NDAA, as described above, to provide semi-annual

[[Page 74963]]

reports on certain foreign media outlets based in the U.S. in addition 
to the reports to Congress made by DOJ pursuant to FARA. Moreover, the 
standardized disclosure contemplated by this item is focused 
specifically on material broadcast on radio and television stations, 
whereas the DOJ requirements apply more widely to information 
disseminated via any method.
    39. With regard to the format and frequency of the disclosure, we 
look to our existing rules for guidance. In terms of format, the 
Commission's rules currently require that a televised political 
advertisement concerning a candidate for public office include an 
identification with letters equal to or greater than four percent of 
the vertical picture height that air for not less than four seconds. We 
propose to adopt that convention and require that the disclosure for 
foreign government-provided programming aired on television be 
displayed in letters equal to or greater than four percent of the 
vertical picture height and be visible for not less than four seconds. 
We seek comment on this proposal and whether there is a similar 
objective standard that can be put in place to ensure that the 
disclosure is also made orally in a way that is clear to the broadcast 
television audience?
    40. We note that there is no parallel to the four percent/four 
second rule applicable to radio programming. We seek comment on whether 
there should be similar parameters for radio disclosures regarding 
foreign government-provided programming. The DOJ provides guidance 
that, for purposes of the FARA labeling requirements, the introductory 
statement for radio broadcasts shall be audibly introduced with a 
recitation of the required conspicuous statement. We seek comment on 
whether only requiring a recitation of the proposed disclaimer is 
sufficient for radio broadcasts or whether there are parameters 
regarding the radio disclosure that we should adopt to ensure it is 
sufficiently prominent for listeners to be cognizant of thereof. Are 
there criteria we could adopt to ensure listeners have an adequate 
opportunity to hear the disclosure?
    41. As previously stated, with regard to the frequency of the 
disclosure, the Commission's rules currently require that the 
sponsorship identification of political broadcast matter, or any 
broadcast matter involving the discussion of a controversial issue of 
public importance, include an announcement at the beginning and 
conclusion of the program. For any broadcast of 5 minutes duration or 
less, only one such announcement need be made at either the beginning 
or conclusion of the program. Would a similar frequency requirement be 
appropriate for the disclosure of programming provided by a foreign 
government or its representative? Given our interest in ensuring that 
the American broadcast audience is aware of the source of its 
programming, particularly programming coming from a foreign government, 
we seek comment on whether additional disclosures during the foreign 
government-provided programming should be required if the programming 
exceeds a certain duration. We tentatively conclude that, at a minimum, 
the required announcement shall be made at both the beginning and 
conclusion of the programming broadcast on television or radio. For 
television and radio programming greater than sixty minutes in 
duration, we tentatively conclude that an announcement shall be made at 
regular intervals during the broadcast, but no less frequently than 
once every hour. We seek comment on these tentative conclusions. On the 
other hand, for television and radio programs that are of five minutes 
or less in duration, should we require that an announcement be made at 
both the beginning and the end of the material broadcast, or is one 
announcement at either time sufficient?
    42. Additionally, in the event that a foreign governmental entity 
continually broadcasts foreign government-provided programming on a 
U.S.-licensed broadcast station without an easily identifiable 
beginning or end, how frequently should a disclosure be made to the 
listener or viewers? Absent a discrete beginning and end to the foreign 
government-provided programming, the audience may be unaware, for 
example, that a foreign governmental entity has leased 100% of a 
station's airtime and that the entire content of the station's 
broadcast programming has been provided by a foreign governmental 
entity. We propose that in such instances a disclosure announcement 
should be made once per hour--either at the top of the hour or half 
hour mark--and seek comment on this proposal.
    43. Further, we propose that the standardized disclosure 
requirements (that is, content, format, and frequency of disclosures) 
would apply equally to any programming transmitted on a radio or 
television stations' multicast streams. For example, as a result of the 
digital television transition, television stations have the ability to 
broadcast not only on their main program stream but also, if they 
choose, over additional program streams--an activity commonly referred 
to as multicasting. Similarly, radio stations that are broadcasting in 
digital have the ability to distribute multiple programming streams 
over the air. Radio multicast streams are known as HD2, HD3, and HD4 
channels. We find no reason to exclude multicast streams from the 
proposed standardized disclosure requirements. Accordingly, we 
tentatively conclude that multicast streams should not be distinguished 
from a station's primary stream for purposes of the proposed rules. We 
seek comment on this approach.
    44. Public File. In order to enhance the availability of 
information to the public, we tentatively conclude that stations that 
air programming subject to our proposed standardized disclosure 
requirements should also place copies of the disclosures in their OPIFs 
and seek comment on what additional information should be included. 
Consistent with our intent to provide greater transparency about the 
distribution of foreign government-provided programming over the 
nation's airwaves, we seek comment on whether to require licensees to 
place in their OPIFs the same information as is currently required when 
programming concerns a political or controversial issue. In the case of 
programming concerning a political or controversial issue, when a 
corporation, committee, association or other unincorporated group, or 
other entity is paying for or furnishing the broadcast matter, stations 
must place a list of the chief executive officers or members of the 
executive committee or of the board of directors of the corporation, 
committee, association or other unincorporated group, or other entity 
in the station's OPIF. Would requiring disclosure of the persons 
operating the foreign governmental entities that are paying for or 
furnishing the programming be appropriate here?
    45. We also seek comment on what, if any, information in addition 
to that which has been previously discussed should be contained in the 
OPIF with respect to the foreign government-provided programming on the 
station. Should the OPIF disclosure contain more detailed information 
about the relationship between the government of a foreign country, 
foreign political party, agent of a government of a foreign country or 
foreign political party, foreign mission, or U.S.-based foreign media 
outlet and the foreign country that these entities or individuals 
represent? How, if at all, should the OPIF disclosure differ from what 
foreign government representatives are required to disclose in the 
context of FARA or

[[Page 74964]]

the NDAA? For example, FARA requires an extensive list of information 
for its disclosure requirement. But the NDAA requires only that U. S.-
based foreign media outlets report the legal structure between the 
outlet and its foreign principal.
    46. To the extent we adopt a public file requirement, we seek 
comment on how it should be implemented. With regard to the frequency 
with which licensees must update their OPIFs to include information 
about the airing of content covered by our proposed rule, we propose to 
adopt the same standard currently applicable to political advertising. 
Specifically, our political file rules require that information about 
the sale of advertising time to a qualified candidate be placed in the 
political file ``as soon as possible.'' Given the importance of making 
information about foreign government-provided programming available to 
the public in a timely way, we think that prompt updates to the online 
public file are appropriate. In addition, using the same standard as 
required for political advertising would harmonize our rules, while 
drawing on a standard and routine with which broadcast licensees are 
already familiar. We seek comment on our proposal to adopt the ``as 
soon as possible'' disclosure standard contained in Sec.  73.1943 of 
our rules and interpret this the same way we do in practice for the 
political file rules, as meaning ``within twenty-four hours of the 
material being broadcast.'' To the extent parties propose a different 
standard, we ask that they provide specific timeframes for such 
disclosures that balance the public's need to know with the associated 
burdens on broadcasters. We also seek comment on whether and how any 
public file requirement we adopt should apply to broadcast stations 
that are not required to maintain an OPIF.
    47. In addition, should information regarding foreign government-
provided programming be placed in a standalone folder of the OPIF so 
that the material is readily identifiable by the public? We also seek 
comment on whether a two-year retention period, as is currently 
specified in Sec.  73.1212(e) of our rules, is sufficient, or whether a 
shorter, or longer, retention period would be preferable for 
disclosures about foreign government-provided programming. Further, we 
note that Sec.  73.1212(e) of our rules permits the retention of 
certain information about a program concerning a political matter, or 
discussion of a controversial issue, at the network headquarters if the 
programming was originated by a network. We tentatively conclude that 
this option should not apply with regard to foreign government-provided 
programming, as we believe it will be easier for a member of the public 
to locate information in the online public file of the licensee that 
aired the programming rather than trying to find the information in a 
physical file at the network's headquarters. We seek comment on this 
tentative conclusion.

D. Reasonable Diligence

    48. As discussed above, pursuant to section 317(c) of the Act, a 
licensee must exercise reasonable diligence, including making any 
necessary inquiries of its employees and other persons with whom it 
deals directly in connection with any programming, to ensure the 
programming aired on its station is accompanied by an appropriate 
sponsorship disclosure if needed. The Commission rules also contain 
this ``reasonable diligence'' standard, as well as a requirement that 
licensees employ ``reasonable diligence'' to determine whether the 
individual or entity with whom they are interacting is in fact an agent 
acting on behalf of someone else. To the extent there is such an agency 
relationship that ``could be known'' through ``reasonable diligence'' 
the licensee must disclose the name of the individual or entity on 
whose behalf the agent is acting. In 1975, the Commission modified its 
rules to include the ``could be known'' language specifically in 
response to a federal court decision finding that the Commission's 
prior rule did not require a licensee to make reasonable efforts to go 
beyond a named sponsor to find and announce the real party in interest. 
The preceding Commission decision that had been overturned by a federal 
court concerned a political race between two candidates in Kentucky and 
a program transmitted by a local station where the named sponsor was 
``The Committee for Good Government.'' The Commission found the local 
station knew that ``The Committee for Good Government'' was a straw 
entity fronting for one of the candidates and the program showed the 
opposing candidate in a negative light and should have identified the 
true sponsor. In modifying its rule after its decision was struck down, 
the Commission stated, broadcasters are licensed to act as trustees for 
a valuable public resource and, in view of the public's paramount right 
to be informed, some administrative burdens must be imposed on the 
licensee in this area. These burdens simply run with the territory.
    49. Consistent with this approach, we tentatively conclude that a 
broadcast station licensee must exercise reasonable diligence to 
determine if an entity or individual that is purchasing airtime on the 
station, or providing programming free of charge as an inducement to 
broadcast such material on the station, is a foreign governmental 
entity, such that a disclosure is required under our proposed rules. 
Such diligence would include, at a minimum, inquiring of the entity 
whether it qualifies as: (1) The ``government of a foreign country,'' 
as defined by FARA: (2) A ``foreign political party,'' as defined by 
FARA; (3) an ``agent of a foreign principal,'' under section 611(c) of 
FARA, whose ``foreign principal'' has the meaning given such term in 
section 611(b)(1) of FARA, and that is acting in its capacity as an 
agent of such ``foreign principal''; (4) a ``foreign mission,'' or (5) 
a U.S.-based foreign media outlet; as well as independently reviewing 
the DOJ's FARA database, and the Commission's list of U.S.-based 
foreign media outlets. What other steps, if any, should be required to 
demonstrate due diligence? Are there any readily available sources of 
public government information that a broadcaster could easily search 
without significant burden? We seek comment on our tentative 
conclusion, including any additional or alternative actions that should 
be articulated as part of a reasonable diligence standard. For example, 
as discussed above, are there other indicia or criteria that licensees 
should review to determine whether a foreign government is the source 
of the programming?

E. Time Brokerage Agreements (TBAs)/Local Marketing Agreements (LMAs)

    50. We recognize that the usage of TBAs/LMAs is a common practice 
in the broadcast industry and that consequently there are instances 
when the day-to-day operations of a broadcast station, such as the sale 
of advertising time, are handled by a third-party other than the 
licensee, i.e., the brokering party. A ``time brokerage agreement,'' 
also known as a ``local marketing agreement'' or ``LMA,'' is the sale 
by a licensee of discrete blocks of time to a ``broker'' that supplies 
the programming to fill that time and sells the commercial spot 
announcements in it. In such situations, the brokering party may sell 
advertising time or receive compensation to air foreign government-
provided programming or receive programming for free from a foreign 
governmental entity as an inducement to air the programming. 
Furthermore, the brokering party itself may be a foreign governmental 
entity, potentially triggering the need for a disclosure. As we seek to 
provide licensees greater

[[Page 74965]]

specificity about how to identify and disclose instances of foreign 
government-provided programming, we also address how our proposed 
disclosure requirements would apply in the context of TBAs/LMAs. Most 
fundamentally, we tentatively conclude that our proposed disclosure 
requirements should apply in the context of TBAs/LMAs.
    51. As the licensee of a broadcast station must ultimately remain 
in control of the station and maintain responsibility for the material 
transmitted over its airwaves, even in the event of a TBA/LMA 
arrangement, we tentatively conclude that final responsibility for 
ensuring that any necessary disclosure is made in the case of foreign 
government-provided programming rests with the licensee. We seek 
comment on this tentative conclusion. Pursuant to section 317(c) of the 
Act, the licensee bears the responsibility to engage in ``reasonable 
diligence'' to determine the true source of the programming. Section 
317(c) of the Act states that the licensee of each radio station shall 
exercise reasonable diligence to obtain from its employees, and from 
other persons with whom it deals directly in connection with any 
program or program matter for broadcast, information to enable such 
licensee to make the announcement required by this section. This 
statutory provision is categoric and does not provide any exceptions. 
This approach is consistent with the fact that it is the licensee who 
has been granted the right to use the public airwaves. We invite 
comment on this analysis and on how licensees can ensure that they have 
met their ``reasonable diligence'' requirement. At a minimum, is it 
reasonable to require that the licensee will inquire whether the 
brokering party and any entity from whom the brokering party receives 
programming qualifies as a ``foreign governmental entity'' pursuant to 
our proposed rules? What else might the licensee do to ensure that the 
brokering party and those from whom this entity receives programming 
are aware of the disclosure obligation?
    52. To the extent that our prior precedent may not require a 
sponsorship announcement to identify the broker's involvement in 
programming the station pursuant to an LMA or a TBA, for example, in 
situations involving a barter-type arrangement, we tentatively conclude 
that any such precedent should not apply in the case of foreign 
government-provided programming. We tentatively conclude that any 
reasons that may apply for not requiring disclosures about the 
brokering party are inapposite when it comes to foreign government-
provided programming, given the importance of informing the American 
broadcast public of the source of such programming. We seek comment on 
this tentative conclusion. In particular, we invite comment on the 
extent to which foreign governmental entities have entered into barter-
type arrangements to provide programming to U.S. broadcast stations, 
and how such arrangements might differ from barter-type arrangements in 
other contexts, such as in a traditional network/affiliate 
relationship. Further, we seek comment generally on TBAs/LMAs involving 
foreign government sponsored programming, including whether there are 
differences between such agreements and other TBAs/LMAs, which often 
involve joint operations with another in-market station to achieve 
operating efficiencies.
    53. While it is clear that the licensee cannot abdicate its 
responsibilities by virtue of entering into a TBA/LMA, we tentatively 
conclude that sections 507(b) and (c) of the Act impose a duty on the 
broker to inform the licensee to the extent it is aware of any payments 
(or other valuable consideration) associated with the programming. 
Section 507(b) of the Act states that any person who, in connection 
with the production or preparation of any program or program matter 
which is intended for broadcasting over any radio station, accepts or 
agrees to accept, or pays or agrees to pay, any money, service or other 
valuable consideration for the inclusion of any matter as a part of 
such program or program matter, shall, in advance of such broadcast 
disclose the fact of such acceptance or payment or agreement to the 
payee's employer, or to the person for which such program or matter is 
being produced, or to the licensee of such station over which such 
program is broadcast. Section 507(c) of the Act states that any person 
who supplies to any other person any program or program matter which is 
intended for broadcasting over any radio station shall, in advance of 
such broadcast, disclose to such other person any information of which 
he has knowledge, or which has been disclosed to him, as to any money, 
service or other valuable consideration which any person has paid or 
accepted, or has agreed to pay or accept, for the inclusion of any 
matter as a part of such program or program matter.
    54. As noted above, in its 1960 amendments to the Act, Congress 
imposed on non-licensees associated with the transmission or production 
of programming a requirement to disclose any knowledge of consideration 
paid as an inducement to air particular material. Specifically, such 
non-licensees must disclose to their employer, the person for which 
such program is being produced (e.g., the next individual involved in 
the chain of transmitting the programming to the licensee), or the 
licensee itself, their knowledge of any payment or ``valuable 
consideration'' provided or accepted. Congress added this provision in 
recognition that individuals other than the licensee were increasingly 
involved in programming decisions. Thus, consistent with the statute, 
we believe that it is incumbent on brokers to disclose to the licensee 
their knowledge of any payment provided by, or unpaid programming 
received as an inducement from, one of the entities or individuals that 
trigger the sponsorship identification requirement laid out in this 
NPRM. We seek comment on whether we should codify this disclosure 
requirement by mandating that agreements between brokers and licensees 
include a provision requiring brokers to disclose any foreign 
government-provided programming? We also seek comment on whether there 
are other entities or individuals that fall within the ambit of 
sections 507(a), (b), or (c) of the Act that we should specifically 
identify as part of our proposal to provide greater transparency about 
foreign government-provided programming. Section 508(a) states that any 
employee of a radio station who accepts or agrees to accept from any 
person (other than such station), or any person (other than such 
station) who pays or agrees to pay such employee, any money, service or 
other valuable consideration for the broadcast of any matter over such 
station shall, in advance of such broadcast, disclose the fact of such 
acceptance or agreement to such station.

F. Section 325(c) Permits

    55. In addition to U.S.-licensed broadcast stations, we tentatively 
conclude that the proposed disclosure requirement for foreign 
government-provided programming should apply expressly to any 
programming broadcast pursuant to a section 325(c) permit to avoid any 
uncertainty.
    A section 325(c) permit is required when an entity produces 
programming in the United States but, rather than broadcasting the 
programming from a U.S.-licensed station, transmits or delivers the 
programming from a U.S. studio to a non-U.S. licensed station in a 
foreign country and broadcasts the programming from the foreign station 
with a sufficient transmission power or a geographic location that 
enables the material to be received consistently in

[[Page 74966]]

the United States. Section 325(c) permit applications are subject to 
the requirements of section 309 (applicable to applications for U.S. 
station licenses). Specifically, we apply the same criteria for meeting 
the programming standards component of the public interest, 
convenience, and necessity requirement to both a domestic license 
proceeding under section 309 and a cross-border broadcast license 
proceeding under section 325.
    56. Applying the same disclosure requirements proposed in this 
proceeding to programming broadcast pursuant to a section 325(c) permit 
would serve the public interest because, like programming from a U.S.-
licensed station, programming from a section 325(c) station is received 
by audiences in the United States. As a result, the same public 
interest objectives with respect to programming of U.S.-licensed 
stations also apply here. Treating U.S.-licensed broadcast station 
licenses and section 325(c) permits in the same manner with respect to 
foreign government-provided programming also would level the playing 
field between programming aired by non-U.S. and U.S. broadcasters in 
the same geographic area within the United States and would eliminate 
any potential loophole in our regulatory framework with respect to the 
identification of foreign government-provided programming that may 
result from this proceeding. We seek comment on this issue and our 
tentative conclusions.
    57. In addition, we seek comment on whether any aspect of our 
proposed format and frequency of the foreign government-provided 
programming disclosure, discussed herein, should be modified for 
section 325(c) permit holders. For example, because section 325(c) 
permit holders are not participants in OPIF, should we require these 
permittees to place copies of such broadcasts in a publicly accessible 
online location? Or would the broadcast of a clear aural or visual 
disclosure accompanying foreign government-provided programming be 
sufficient to level the playing field between programming aired by non-
U.S. and U.S. broadcasters in the same geographic area within the 
United States? Commenters suggesting a different format or additional 
disclosure information with respect to broadcasts pursuant to a section 
325(c) permit should discuss how such a format or additional 
information would best serve the public interest.

G. The Proposed Disclosure Requirements Satisfy the First Amendment

    58. We tentatively conclude that the disclosure requirements 
proposed in the instant NPRM comport with the First Amendment. Section 
317(e) of the Act directs the Commission to prescribe appropriate rules 
and regulations to carry out the provisions of this section. As 
discussed in detail above, the Commission has repeatedly used its 
authority under section 317 to address evolving concerns about 
undisclosed program sponsorship as they arise. Because the instant 
rulemaking follows in that same vein, we find we have ample statutory 
authority for the proposals contained in this NPRM. We note that with 
respect to broadcasters, the disclosure requirements in question will 
be reviewed under intermediate scrutiny, the less rigorous standard 
applied to content-based restrictions on that medium, and thus will be 
upheld if narrowly tailored to achieve a substantial government 
interest. While a content-based regulation of speech is typically 
subject to strict scrutiny, the Supreme Court has described First 
Amendment review of broadcast regulation as ``less rigorous'' than in 
other contexts based on the spectrum scarcity rationale. We note, 
however, that some judges have questioned the validity of the scarcity 
doctrine as justification for less rigorous First Amendment scrutiny of 
content-based regulation of broadcasters.
    59. Even assuming, however, that the highest level of First 
Amendment scrutiny applies, we tentatively conclude that our proposed 
rules satisfy that review. While our analysis above demonstrates that 
our proposed disclosure rules satisfy First Amendment speech 
protections even under strict scrutiny, we find it is likely that our 
proposed rules are content-neutral and therefore would not be subject 
to strict scrutiny. The disclosure requirements do not act as a 
complete ban on foreign government-provided programming nor prohibit 
participation in public discussion; rather, the proposed rules would 
merely require a factual statement regarding the sponsor of the 
programming. As set forth below, we tentatively conclude that the 
government's interest here is ``compelling,'' and the rules are both 
``narrowly tailored'' to further that interest and the ``least 
restrictive means'' available to serve that goal.
    60. Compelling Government Interest. The Commission's application of 
section 317 for over eighty years, as well as Congress's 1960 
amendments thereto, which further strengthened the statutory provision, 
demonstrate a compelling governmental interest in accurate sponsorship 
identification. Indeed, as noted above, the obligation that a 
broadcaster inform its audiences when the station's airtime has been 
purchased (or the station is otherwise induced to air certain material) 
is a bedrock principle of broadcasting regulation that even pre-dates 
the creation of the Commission. The need for transparency and 
disclosure to the public about the true identity of a program's sponsor 
is particularly compelling when a foreign government is involved. 
Congress has recognized the critical importance of accuracy and 
transparency with regard to foreign government-provided programming in 
a number of contexts, including by its recent action extending the 
national security concerns underlying FARA to require the Commission to 
provide annual reports on U.S.-based foreign media outlets, defined by 
reference to FARA's foreign agent definitions, airing programming in 
the United States. Notably, the Supreme Court has previously recognized 
the government's interest in requiring accurate disclosures of foreign 
political or controversial programming and preventing groups from 
broadcasting political messages intended to persuade the public through 
hidden identities. Moreover, as discussed above, in 1962 when the 
Commission learned that ``broadcast matter containing political 
propaganda or controversial matter, sponsored and paid for by foreign 
governments'' had been broadcast ``without indication to the public as 
to the foreign sponsorship involved,'' it issued a Public Notice 
emphasizing to broadcasters the particular importance of full and 
accurate disclosure for foreign government-supplied programming. The 
Public Notice cited sections 317 and 508 of the Communications Act, 
concluding, the purpose of these provisions is to assure that in these 
instances the public will be informed as to the source of sponsored 
broadcast material. Also, as discussed above, foreign governments 
increasingly are making use of various media, including U.S. airwaves, 
not only to influence those governments' expatriate communities, but 
also to promote their policies and viewpoints to all Americans. This 
increase makes the government's interest in accuracy and transparency 
regarding broadcasts of foreign government-provided programming even 
more compelling.
    61. As set forth in detail above, the proposed disclosure 
requirements are well within our statutory authority and

[[Page 74967]]

an extension of our existing sponsorship identification rules that 
would further the substantial and compelling government interest in 
transparency and accuracy for listeners and viewers as to the source of 
the programming being disseminated over the public airwaves. Complete 
and accurate disclosure regarding the source of programming is critical 
to allowing audiences to determine the reliability and credibility of 
the information they receive. We consider such transparency to be a 
critical part of broadcasters' public interest obligation to use the 
airwaves with which they are entrusted to benefit their local 
communities. Rather than abridging broadcasters' freedom of speech 
rights, disclosure would promote First Amendment and Communications Act 
goals by enhancing viewers' ability to assess the substance and value 
of foreign government-provided programming, thus promoting an informed 
public and improving the quality of public discourse. We seek comment 
on this analysis.
    62. Narrow Tailoring. In light of these important and compelling 
governmental interests, we tentatively conclude that the proposed rules 
are narrowly tailored to avoid burdening any more speech than necessary 
to serve the purposes of ensuring transparency and accuracy regarding 
the source of the programming. In Meese v. Keene, for example, the 
Supreme Court of the United States reviewed a First Amendment challenge 
to a provision of FARA that required the labeling of certain 
information disseminated to the public as ``propaganda.'' The Court 
upheld the requirement and found that it did not prohibit or otherwise 
adversely affect the dissemination of the films at issue, but rather 
that it simply required the disseminators of the films to make 
additional disclosures to enable the public to better evaluate the 
material's impact, allowed the disseminators to add further disclosures 
thought to be germane, and thereby actually fostered freedom of speech. 
In sum, the Court stated, by compelling some disclosure of information 
and permitting more, the Act's approach recognizes that the best remedy 
for misleading or inaccurate speech contained within materials subject 
to the Act is fair, truthful, and accurate speech. Here, the proposed 
disclosure requirements are narrowly tailored to promote the 
government's interest by requiring a simple, factual statement 
identifying foreign government-provided programming without limiting 
the distribution or discussion of such programming, regardless of the 
information or viewpoint presented. We seek comment on this analysis.
    63. Least Restrictive Means. Even assuming that the strict scrutiny 
test applies here, we tentatively conclude that our proposed rules also 
satisfy the final prong of that level of constitutional analysis. Our 
proposed disclosure requirements would not prevent or inhibit the 
airing of any type of foreign government programming, i.e., the 
requirements do not prevent anyone from speaking. As the Court has 
previously concluded, disclosure is a less restrictive alternative to 
more comprehensive regulations of speech. In addition, the category of 
individuals whose programming was covered by the labeling requirement 
in Meese v. Keene (i.e., individuals who must register under FARA) are 
also among the group of individuals whose programming would trigger our 
proposed standardized disclosure requirements. Consequently, we have 
strong reason to conclude that our proposed requirements satisfy 
heightened scrutiny under the First Amendment. We tentatively conclude 
that, rather than abridging licensees' freedom of speech rights, our 
proposed standardized disclosure requirements would promote the goals 
of the First Amendment and section 317 of the Act by enhancing the 
ability of broadcast viewers and listeners to assess the substance and 
value of foreign government-provided programming, thus promoting an 
informed public and improving the quality of public discourse. We seek 
comment on this tentative conclusion.
    64. In addition, we tentatively conclude that the analysis provided 
here applies equally to those operating pursuant to section 325(c) 
permits, because as described in section above, there is nothing to 
differentiate them from other broadcast licensees when it comes to our 
sponsorship identification requirements. Finally, for the same reasons 
that we have laid out above regarding the compliance of our proposals 
with the First Amendment, we also tentatively conclude that our 
proposals do not violate the prohibition, contained in section 326 of 
the Act, or any Commission regulation or condition interfering with the 
right of free speech by means of radio communication. We seek comment 
on these tentative conclusions.

H. Cost-Benefit Analysis

    65. Finally, we seek comment on the benefits and costs associated 
with adopting a foreign government sponsorship disclosure requirement. 
How do we assess the benefit of the proposed disclosures, if any? We 
seek comment on how to quantify the widespread benefit of identifying 
for the public that a foreign government has provided certain 
programming for broadcast against the cost of compliance incurred by 
the providers of such programming. If the benefit cannot be quantified, 
how should we weigh it against the more concrete costs of compliance? 
In addition to any benefits to the public at large, are there also 
benefits that might accrue to industry in the form of greater trust 
from viewers and listeners that should be quantified? Will the proposed 
disclosures provide the public and the Commission a clearer view of 
foreign governmental entities' activities in the U.S. broadcast market? 
If not, what type of disclosures would? Are there other benefits to 
disclosures that should also be considered?
    66. We also seek comment on any potential costs that would be 
imposed on broadcasters or others if we adopt the proposals contained 
in this NPRM. Is there a possibility that these costs would outweigh 
the substantial public benefits we have identified regarding 
transparency of the source of programming heard or viewed by the 
American public? How much will it cost broadcasters to comply with the 
proposed on-air disclosures and public file record keeping 
requirements? Finally, if the proposals contained in this NPRM would 
impose significant costs, could the proposals be modified to reduce 
these costs, and if so, how? Comments should be accompanied by specific 
data and analysis supporting claimed costs and benefits.

Procedural Matters

    67. Ex Parte Rules--Permit-But-Disclose. This proceeding shall be 
treated as a ``permit-but-disclose'' proceeding in accordance with the 
Commission's ex parte rules. Persons making ex parte presentations must 
file a copy of any written presentation or a memorandum summarizing any 
oral presentation within two business days after the presentation 
(unless a different deadline applicable to the Sunshine period 
applies). Persons making oral ex parte presentations are reminded that 
memoranda summarizing the presentation must (1) list all persons 
attending or otherwise participating in the meeting at which the ex 
parte presentation was made, and (2) summarize all data presented and 
arguments made during the presentation. If the presentation consisted 
in whole or in part of the presentation of data or arguments already 
reflected in the presenter's written comments, memoranda, or other

[[Page 74968]]

filings in the proceeding, the presenter may provide citations to such 
data or arguments in his or her prior comments, memoranda, or other 
filings (specifying the relevant page and/or paragraph numbers where 
such data or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with rule 1.1206(b). In proceedings governed by 
rule 1.49(f) or for which the Commission has made available a method of 
electronic filing, written ex parte presentations and memoranda 
summarizing oral ex parte presentations, and all attachments thereto, 
must be filed through the electronic comment filing system available 
for that proceeding, and must be filed in their native format (e.g., 
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding 
should familiarize themselves with the Commission's ex parte rules.
    68. Filing Requirements--Comments and Replies. Pursuant to 
Sec. Sec.  1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 
1.419, interested parties may file comments and reply comments on or 
before the dates indicated on the first page of this document. Comments 
may be filed using the Commission's Electronic Comment Filing System 
(ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 
63 FR 24121 (1998).
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: https://apps.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
     Filings can be sent by commercial overnight courier, or by 
first-class or overnight U.S. Postal Service mail. All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701, U.S.
     Postal Service first-class, Express, and Priority mail 
must be addressed to 45 L Street NE, Washington, DC 20554.
     Effective March 19, 2020, and until further notice, the 
Commission no longer accepts any hand or messenger delivered filings. 
This is a temporary measure taken to help protect the health and safety 
of individuals, and to mitigate the transmission of COVID-19.
     During the time the Commission's building is closed to the 
general public and until further notice, if more than one docket or 
rulemaking number appears in the caption of a proceeding, paper filers 
need not submit two additional copies for each additional docket or 
rulemaking number; an original and one copy are sufficient.
    69. Initial Regulatory Flexibility Act Analysis. The Regulatory 
Flexibility Act of 1980, as amended (RFA), requires that a regulatory 
flexibility analysis be prepared for notice and comment rulemaking 
proceedings, unless the agency certifies that ``the rule will not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.'' The RFA generally defines the term ``small 
entity'' as having the same meaning as the terms ``small business,'' 
``small organization,'' and ``small governmental jurisdiction.'' In 
addition, the term ``small business'' has the same meaning as the term 
``small business concern'' under the Small Business Act. A ``small 
business concern'' is one which: (1) Is independently owned and 
operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the Small Business 
Administration (SBA).
    70. With respect to this Notice of Proposed Rulemaking, an Initial 
Regulatory Flexibility Analysis (IRFA) under the RFA is contained 
below. Written public comments are requested on the IFRA and must be 
filed in accordance with the same filing deadlines as comments on this 
Notice of Proposed Rulemaking, with a distinct heading designating them 
as responses to the IRFA. In addition, a copy of this Notice of 
Proposed Rulemaking and the IRFA will be sent to the Chief Counsel for 
Advocacy of the SBA and will be published in the Federal Register.
    71. Paperwork Reduction Act. This document seeks comment on whether 
the Commission should adopt new information collection requirements. 
The Commission, as part of its continuing effort to reduce paperwork 
burdens and pursuant to the Paperwork Reduction Act of 1995, Public Law 
104-13, invites the general public and the Office of Management and 
Budget (OMB) to comment on these information collection requirements. 
In addition, pursuant to the Small Business Paperwork Relief Act of 
2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific 
comment on how we might further reduce the information collection 
burden for small business concerns with fewer than 25 employees.
    72. People with Disabilities. To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an email to [email protected] or call the 
Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
    73. Additional Information. For additional information on this 
proceeding, please contact Radhika Karmarkar of the Media Bureau, 
Industry Analysis Division, [email protected], (202) 418-1523.

Initial Regulatory Flexibility Act Analysis

    74. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on small entities of the policies and rules proposed in this NPRM. The 
Commission requests written public comments on this IRFA. Comments must 
be identified as responses to the IRFA and must be filed by the 
deadlines for comments specified in the NPRM. The Commission will send 
a copy of the NPRM, including this IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration (SBA). In addition, the 
NPRM and IRFA (or summaries thereof) will be published in the Federal 
Register.

A. Need for, and Objectives of, the Proposed Rules

    75. This NPRM proposes to adopt specific disclosure requirements 
for broadcast radio and television in the event that they air 
programming that is paid for, or furnished for free, by a foreign 
government or its representative. Pursuant to the authority granted in 
section 317(e) of the Communications Act of 1934, as amended, (the 
Act), the NPRM proposes to amend Sec.  73.1212 of the Commission's 
rules to require the addition of a standard aural or visual disclaimer 
(or both) if a foreign governmental entity has paid a radio or 
television station, directly or indirectly, to air material, or if the 
programming was furnished free of charge to the station by such an 
entity as an inducement to broadcast the material. The proposed 
standard disclaimer would state: ``The [following/preceding] 
programming was paid for or furnished, either in whole or in part, by 
[name of foreign governmental entity] on behalf of [name of foreign 
country].'' Based on existing statutory or regulatory definitions, the 
NPRM specifies five categories of individuals or entities whose 
programming would trigger a disclosure requirement: (1) A

[[Page 74969]]

``government of a foreign country'' as defined by the Foreign Agents 
Registration Act (FARA); (2) a ``foreign political party'' as defined 
by FARA; (3) an individual or an entity registered as an ``agent of a 
foreign principal'' under FARA; whose ``foreign principal'' has the 
meaning given such term in section 611(b)(1) of FARA, and that is 
acting in its capacity as an agent of such ``foreign principal;'' (4) 
an entity designated as a ``foreign mission'' under the Foreign 
Missions Act; or (5) an entity meeting the definition of a ``U.S.-based 
foreign media outlet'' pursuant to section 722 of the Communications 
Act that has filed a report with the Commission. The NPRM also 
clarifies for foreign government-provided programming the ``reasonable 
diligence'' required of broadcasters, tentatively concluding that such 
diligence would include, at a minimum, inquiring of the entity 
providing the programming whether it qualifies as one of the entities 
that would trigger the proposed disclosure, as well as independently 
reviewing the U.S. Department of Justice's (DOJ) FARA database, the 
Commission's list of U.S.-based foreign media outlets, and any other 
readily available sources of public government information. The NPRM 
proposes that stations that air foreign government-provided programming 
place copies of the disclosures in their on-line public inspection 
files (OPIFs). The NPRM also proposes that these enhanced sponsorship 
requirements apply to programs permitted to be delivered to foreign 
broadcast stations under an authorization pursuant to section 325(c) of 
the Communications Act of 1934.
    76. We believe that the American people deserve to know when a 
foreign government has paid for programming, or furnished it for free, 
so that viewers and listeners can better evaluate the value and 
accuracy of such programming. Establishing a requirement to identify 
foreign government-provided programming to enable the American people 
to know when a foreign government has paid for programming, or 
furnished it for free, so that viewers and listeners can better 
evaluate the value and accuracy of such programming. Broadcast stations 
are entrusted with using the public airwaves to benefit their local 
communities and this obligation includes ensuring that any foreign 
government-provided programming is clearly identified. The proposed 
rules update our sponsorship identification rules to provide specific 
guidance on the language and frequency of the necessary disclosures and 
greater clarity about how to identify foreign governmental entities.

B. Legal Basis

    77. The proposed action is authorized under sections 151, 152, 
154(i), 154(j), 303(r), 307, 317, 325(c), 403, and 507 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 
154(j), 303(r), 307, 317, 325(c), 403, and 508.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    78. The RFA directs agencies to provide a description of, and where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rule revisions, if adopted. The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small business concern'' under the 
Small Business Act (SBA). A small business concern is one which: (1) Is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
SBA. Below, we provide a description of such small entities, as well as 
an estimate of the number of such small entities, where feasible.
    79. Television Broadcasting. This U.S. Economic Census category 
``comprises establishments primarily engaged in broadcasting images 
together with sound.'' These establishments operate television 
broadcast studios and facilities for the programming and transmission 
of programs to the public. These establishments also produce or 
transmit visual programming to affiliated broadcast television 
stations, which in turn broadcast the programs to the public on a 
predetermined schedule. Programming may originate in their own studio, 
from an affiliated network, or from external sources. The SBA has 
created the following small business size standard for such businesses: 
Those having $41.5 million or less in annual receipts. According to the 
2012 Economic Census (when the SBA's size standard was set at $38.5 
million or less in annual receipts), 751 firms in the small business 
size category operated in that year. Of that number, 656 had annual 
receipts of $25 million or less, 25 had annual receipts between $25 
million and $49,999,999 and 70 had annual receipts of $50 million or 
more. Based on this data, we estimate that the majority of commercial 
television broadcast stations are small entities under the applicable 
size standard.
    80. Additionally, the Commission has estimated the number of 
licensed commercial television stations to be 1368. Of this total, 
1,263 stations (or 92%) had revenues of $41.5 million or less in 2019, 
according to Commission staff review of the BIA Kelsey Inc. Media 
Access Pro Television Database (BIA) on July 30, 2020, and therefore 
these stations qualify as small entities under the SBA definition. In 
addition, the Commission estimates the number of noncommercial 
educational television stations to be 390. The Commission does not 
compile and does not have access to information on the revenue of NCE 
stations that would permit it to determine how many such stations would 
qualify as small entities. There are also 386 Class A stations. Given 
the nature of this service, the Commission presumes that all of these 
stations qualify as small entities under the applicable SBA size 
standard.
    81. Radio Broadcasting. This U.S. Economic Census category 
``comprises establishments primarily engaged in broadcasting aural 
programs by radio to the public.'' Programming may originate in the 
establishment's own studio, from an affiliated network, or from 
external sources. The SBA has created the following small business size 
standard for such businesses: Those having $41.5 million or less in 
annual receipts. According to Economic Census data for 2012 (when the 
SBA's size standard was set at $38.5 million or less in annual 
receipts), 2,849 firms in this category operated in that year. Of that 
number, 2,806 operated with annual receipts of less than $25 million 
per year, 17 with annual receipts between $25 million and $49,999,999 
million and 26 with annual receipts of $50 million or more. Based on 
this data, we estimate that the majority of commercial radio broadcast 
stations were small under the applicable SBA size standard.
    82. The Commission has estimated the number of licensed commercial 
AM radio stations to be 4,570 and the number of commercial FM radio 
stations to be 6,706 for a total of 11,276 commercial stations. Of this 
total, 11,266 stations (or 99%) had revenues of $41.5 million or less 
in 2019, according to Commission staff review of the BIA Kelsey Inc. 
Media Access Pro Television Database (BIA) on July 30, 2020, and 
therefore these stations qualify as small entities under the SBA 
definition. In addition, there were 4,197 noncommercial, educational 
(NCE) FM stations. The Commission does not compile and does not have 
access to information on the revenue of NCE

[[Page 74970]]

stations that would permit it to determine how many such stations would 
qualify as small entities.
    83. We note, however, that in assessing whether a business concern 
qualifies as ``small'' under the above definition, business (control) 
affiliations must be included. Our estimate, therefore, likely 
overstates the number of small entities that might be affected by our 
action, because the revenue figure on which it is based does not 
include or aggregate revenues from affiliated companies. In addition, 
another element of the definition of ``small business'' requires that 
an entity not be dominant in its field of operation. We are unable at 
this time to define or quantify the criteria that would establish 
whether a specific television broadcast station is dominant in its 
field of operation. Accordingly, the estimate of small businesses to 
which the rules may apply does not exclude any radio or television 
station from the definition of a small business on this basis and is 
therefore possibly over-inclusive. An additional element of the 
definition of ``small business'' is that the entity must be 
independently owned and operated. Because it is difficult to assess 
these criteria in the context of media entities, the estimate of small 
businesses to which the rules may apply does not exclude any radio or 
television station from the definition of a small business on this 
basis and similarly may be over-inclusive.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    84. The NPRM seeks comment on a proposed requirement that broadcast 
television and radio stations airing programming either paid for, or 
provided for free, by a foreign governmental entity disclose, at the 
time of the broadcast, the name of the foreign governmental entity, the 
name of the foreign country associated with that governmental entity, 
and that the programming is paid for, or furnished for free, either in 
whole or in part, by that foreign governmental entity. Specifically, 
the NPRM proposes that stations use the following standard disclosure:

    ``The [following/preceding] programming was paid for, or 
furnished, either in whole or in part, by [name of foreign 
governmental entity] on behalf of [name of foreign country].''

    85. The NPRM also clarifies for foreign government-provided 
programming the ``reasonable diligence'' required of broadcasters, 
tentatively concluding that such diligence would include, at a minimum, 
inquiring of the entity providing the programming whether it qualifies 
as the ``government of a foreign country'' under FARA, a ``foreign 
political party'' under FARA, a registered ``agent of a foreign 
principal'' under FARA, whose ``foreign principal'' has the meaning 
given such term in section 611(b)(1) of FARA, a ``foreign mission,'' or 
a U.S.-based foreign media outlet, as well as independently reviewing 
the DOJ's FARA database, the Commission's list of U.S.-based foreign 
media outlets, and any other readily available sources of public 
government information. The NPRM proposes that stations that air 
foreign government-provided programming place copies of the disclosures 
in their OPIFs. The NPRM also proposes that these enhanced sponsorship 
requirements apply to programs permitted to be delivered to foreign 
broadcast stations under an authorization pursuant to the section 
325(c) of the Communications Act of 1934.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    86. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    87. In proposing disclosure requirements for programming provided 
by foreign governmental entities, the Commission has carefully 
considered the resources available to television and radio broadcast 
stations, many of which are small entities. The proposed requirements 
provide an update to the Commission's existing sponsorship 
identification rules, which broadcasters have followed for decades, to 
specifically cover foreign governmental programming. To avoid any 
possible confusion, the NPRM specifies the wording and timing of the 
required announcement. The NPRM limits the reporting requirements to 
placing a single electronic copy of the required announcement in a 
broadcaster's online public file, which it must maintain pursuant to 
existing Commission rules. In defining covered programming, the 
Commission has tied its definition of foreign governmental entities to 
existing definitions contained in FARA, the Foreign Missions Act and 
the Communications Act, as amended, so as to minimize the burden on 
broadcasters to identify what qualifies as a foreign governmental 
entity. The NPRM specifies the minimal steps that broadcasters using 
agents or time brokerage agreements must take to satisfy the statutory 
``reasonable diligence'' standard. These efforts to narrowly tailor the 
proposed rule to create the least burden on broadcaster rights to free 
speech also reduce its burden on small businesses. The NPRM 
specifically seeks further comment on alternative requirements or other 
ways the Commission could minimize the impact of its proposed 
requirements on small entities.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule

    88. The NPRM contains requirements that may overlap with DOJ rules 
for labelling of broadcast programming provided by an ``agent of a 
foreign principal,'' as that term is defined in the Foreign Agents 
Registration Act and the NPRM seeks comment on the possibility.

List of Subjects in 47 CFR Part 73

    Radio, Reporting and recordkeeping requirements, Television.

Federal Communications Commission.
Marlene Dortch,
Secretary.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 73 as follows:

PART 73--RADIO BROADCAST SERVICE

0
1. The authority citation for part 73 continues to read as follows:

    Authority: 47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 
336, 339.

0
2. Amend Sec.  73.1212 by adding paragraphs (j) and (k) to read as 
follows:


Sec.  73.1212   Sponsorship identification; list retention; related 
requirements.

* * * * *
    (j) Where the material broadcast consistent with section (a) or (d) 
above has been provided by a foreign governmental entity, the station, 
at the time of the broadcast, shall include the following disclaimer:
    The [following/preceding] programming was paid for, or furnished,

[[Page 74971]]

either in whole or in part, by [name of foreign governmental entity] on 
behalf of [name of foreign country].
    (1) The term ``foreign governmental entity'' shall include 
governments of foreign countries, foreign political parties, agents of 
foreign principals, foreign missions, and United States-based foreign 
media outlets.
    (i) The term ``government of a foreign country'' has the meaning 
given such term in the Foreign Agents Registration Act of 1938 (22 
U.S.C. 611(e)).
    (ii) The term ``foreign political party'' has the meaning given 
such term in the Foreign Agents Registration Act of 1938 (22 U.S.C. 
611(f)).
    (iii) The term ``agent of a foreign principal'' has the meaning 
given such term in the Foreign Agents Registration Act of 1938 (22 
U.S.C. 611(c)), whose ``foreign principal'' has the meaning given such 
term in section 611(b)(1) of the Foreign Agents Registration Act of 
1938 (22 U.S.C. 611(b)(1));
    (iv) The term ``foreign mission'' has the meaning given such term 
in the Foreign Missions Act (22 U.S.C. 4302).
    (v) The term ``United States-based foreign media outlet'' has the 
meaning given such term in section 722(a) of the Communications Act of 
1934 (47 U.S.C. 624(a)).
    (2) In the case of any video programming, the foreign governmental 
entity and the country represented shall be identified with letters 
equal to or greater than four percent of the vertical picture height 
that air for not less than four seconds.
    (3) At a minimum, the required announcement shall be made at both 
the beginning and conclusion of the programming. For programming of 
greater than sixty minutes in duration, an announcement shall be made 
at regular intervals during the broadcast, but no less frequently than 
once every sixty minutes.
    (4) A station shall place a copy of the announcement required by 
this paragraph (j) in its online public inspection file within twenty-
four hours of the material being broadcast. Where an aural announcement 
was made, its contents will be reduced to writing and placed in the 
online public inspection file. Where a corporation, committee, 
association or other unincorporated group, or other entity is paying 
for or furnishing the broadcast matter, the station shall comply with 
the requirements of paragraph (e) of this section as it relates to 
material that is a political matter or matter involving the discussion 
of a controversial issue of public importance.
    (k) The requirements in paragraph (j) of this section shall apply 
to programs permitted to be delivered to foreign broadcast stations 
under an authorization pursuant to the section 325(c) of the 
Communications Act of 1934 (47 U.S.C. 325(c)).

[FR Doc. 2020-25458 Filed 11-23-20; 8:45 am]
BILLING CODE 6712-01-P