The three judges — one Trump-appointed, one Obama-appointed, and one George W. Bush-appointed — all agreed in a ruling Tuesday that the current law places “a duty of investigation, no duty of investigation” on broadcasters and that the FCC this could not extend this requirement.
“Congress chose the means for broadcasters to obtain the information necessary to disclose who paid for programming,” ruled the US Circuit Court of Appeals panel for the DC Circuit. “The FCC cannot change the decision of Congress.”
The FCC and FTC are still blocked from job vacancies. It’s not the first time.
Broadcast television and radio stations must declare on air if the programming has been paid for by a sponsor. But in determining the identity of these sponsors, applicable law requires broadcasters to consult only their own employees and the outside entities with which they deal directly. The FCC said in court filings that the system had proved inadequate, citing media reports about the Chinese and Russian governments using intermediaries to get onto the American airwaves. (Foreign governments are prohibited from directly holding US broadcasting licenses.)
It was “a simple name check” to “confirm the information,” FCC attorney Bill Scher said at a hearing in April. If someone renting radio time claims they are not a foreign agent and shows up in either database, “an alarm has gone off,” but it’s up to the station to decide how to deal with it under current law.
Opponents said that would be more complicated than the FCC suggested because after examining the federal lists, broadcasters would still have to figure out if and what kind of disclosures would be required.
“Broadcasters are not investigative agencies,” said Stephen B. Kinnaird, representing the broadcasters, at the hearing. “These are country music DJs, local businessmen in small towns who sell advertising. They are not lawyers and analysts.”
Kinnaird said broadcasters “simply have no problem with extended disclosure requirements” but the order was “extreme overkill”.
In a statement, NAB President Curtis LeGeyt said the “ruling ensures that the rules continue to rightly require a handful of broadcasters that air programs sponsored by foreign governments to identify them as such, but relieves the overwhelming majority of broadcasters.” who never broadcast foreign government-sponsored content.”
John Bergmayer, legal director at Public Knowledge, a non-profit organization working to improve communications access, said: “Given the obvious importance of the issue, it is alarming that the court would adopt such an interpretation of the law.”
While the direct impact may be limited, he said, “it appears to be part of a trend where courts go out of their way to prevent agencies from doing their core jobs.”
In a statement, FCC Chairwoman Jessica Rosenworcel said the rule is “about transparency. Consumers deserve to have confidence that public airwaves will not be leased to private foreign actors without their knowledge.”
The court did not disagree with the requirement that broadcasters ask whether sponsors are foreign agents or work with foreign governments and disclose that relationship.
A former DC-area Spanish-language station is one of a few nationwide to air Russian propaganda; The small station regularly announces that “this radio program … is distributed on behalf of the Federal State Unitary Enterprise Rossiya Segodnya International Information Agency.”
After the invasion of Ukraine, LeGeyt made an unusual call for broadcasters to stop broadcasting state-sponsored Russian programs.
“The First Amendment protects freedom of expression but does not prevent private actors from exercising sound, moral judgement,” he said in the March statement.
This story has been updated with comments from the FCC.