FCC Rule on Foreign Emissions Overturned by DC Circuit

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An effort by the Federal Communications Commission to expose secret Chinese and Russian propaganda has been blocked by a federal appeals court.

Last year, the FCC asked radio and television broadcasters to ask sponsors if a foreign government was involved in the program and to check the answer against a Justice Department database of foreign agents and the FCC online report on US-based foreign media. The National Association of Broadcasters and other trade groups sued, saying the new order was an improper burden.

The three judges — a Trump appointee, an Obama appointee, and a George W. Bush appointee — all agreed in a Tuesday ruling that the current law imposes on broadcasters “a duty to investigate, not a duty of investigation”, and that the FCC could not expand this requirement.

“Congress chose the means by which broadcasters could obtain the information necessary to announce who paid for the programming,” the US Court of Appeals panel for the DC Circuit said. “The FCC cannot change Congress’ choice.”

The FCC and FTC are still hampered by vacancies. It is not the first time.

Broadcast television and radio stations must report on-air when programming has been paid for by a sponsor. But in determining the identity of those sponsors, current law requires broadcasters to consult only their own employees and outside entities with whom they deal directly. The FCC said in court filings that the system had proven inadequate, citing news reports about the Chinese and Russian governments using intermediaries to access US airwaves. (Foreign governments are not permitted to hold U.S. broadcast licenses directly.)

It’s “a simple name check” to “confirm the information,” FCC attorney Bill Scher said during his closing argument in April. If someone who rents radio time claims not to be a foreign agent and appears in one of the two databases, “an alarm has gone off”, but it is up to the broadcaster to decide how to handle it under of existing law.

Opponents said it was more complicated than the FCC suggested, because after checking the federal listings, broadcasters would still have to determine if and what kind of disclosure was necessary.

“Broadcasters are not investigative bodies,” said Stephen B. Kinnaird, representing the broadcasters, during oral argument. “It’s country music DJs, local business people in small towns selling advertising. They are not lawyers and analysts.

Kinnaird said broadcasters “would have no problem simply with an expanded disclosure requirement”, but the order was “grossly over the top”.

In a statement, NAB Chairman Curtis LeGeyt said “the decision ensures that the rules rightly continue to require the handful of stations carrying foreign government-sponsored programming to identify them as such, but removes the burden of the overwhelming majority of stations that never broadcast foreign programs – sponsored content.

John Bergmayer, legal director of Public Knowledge, a non-profit organization that advocates for better access to communications, said that “given the obvious importance of the issue, it is alarming that the court is adopting such a reading of the law”.

While the direct impact may be limited, he said, “it seems to be part of a trend where courts are doing all they can to prevent agencies from carrying out their core missions.”

A former Spanish-language station in the DC area is one of the few across the country that airs Russian propaganda; the small broadcaster regularly reveals that “this radio programming is distributed… on behalf of the International News Agency of the Federal State Unitary Enterprise Rossiya Segodnya.”

After the invasion of Ukraine, LeGeyt made an unusual appeal to station owners to stop airing Russian state-sponsored programming.

“The First Amendment protects free speech, however, it does not prevent private actors from exercising sound moral judgment,” he said in the March statement.

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