Repp Law Firm

FCC Adopts Foreign Government-Provided Programming Sponsorship ID Rules

The FCC has adopted in April 2021 a Report and Order, FCC 21-42, adding Sponsorship Identification requirements for “Foreign Government-Provided Programming,” incorporating some modifications from the earlier-circulated draft, which reduces some of the burdens on broadcasters.  I recommend that you review your outstanding, or contemplated, agreements for the “lease” of time on your broadcast station(s) and identify next steps to ensure compliance with the new sponsorship ID and diligence requirements.

Effective Date:  While the Order is to be effective 30 days after release in the Federal Register, most of the new requirements require OMB approval, which could take significantly longer than the typical, approximately-30 days for Fed Reg release.

Applies to “Leases” of Blocks of Time, e.g., TBAs and LMAsBroadcast stations with a TBA (time brokerage agreement), LMA (local marketing agreement) or any “lease” of a block of time (of any length or duration and whether or not reduced to writing) for some form of compensation should take note, as the Report and Order requires that such broadcasters undertake due diligence and come into compliance within six months of the effective date.  Moreover, new TBAs/LMAs/Leases should, at signing, and then upon renewal of the agreement, comply with the new requirements.

Noncommercial stations:  Due to the current restrictions on programming agreements for noncommercial (“NCE”) stations, NCEs may broadcast programs produced by or at the expense of, or furnished by persons other than the licensee, if no other consideration than the furnishing of the program and the costs incidental to its production and broadcast are received by the licensee.”  Therefore, the Commission explained that NCE stations complying with these existing restrictions in their programming agreements should not fall within the ambit of the new foreign sponsorship identification requirements.  Nevertheless, I recommend that NCE stations review their programming agreements to ensure compliance.

Section 325(c) Permit Holders:  the new sponsorship requirements apply to Section 325(c) permit holders (programming produced in US, broadcast by foreign station, for reception in US).  Required foreign sponsorship disclosures to be uploaded to the International Bureau’s IBFS system.

Definition of “Foreign Governmental Entity”: The FCC’s definition is mostly by reference to the Foreign Agents Registration Act of 1938 (“FARA”) and includes: (i) “government of a foreign country”; (ii) “foreign political party”; and (iii) “agent of a foreign principal.”  The definition also includes (iv) “United States-based foreign media outlet” as defined in Section 722(a) of the Communications Act of 1934. 

Trigger for Foreign Disclosure:  The new disclosure requirements apply only to broadcast material aired by a broadcast station pursuant to the lease of time on the station that has been sponsored, paid for, or in the case of political programming or any program involving the discussion of a controversial issue, if it has been furnished for free as an inducement to air by a “foreign governmental entity.”  A “lease” of time is not meant to apply to traditional, short-form advertising, however, as before advertising and other programming remains subject to existing sponsorship identification requirements (47 CFR §73.1212) and must contain a clear indication of the sponsor of the ad.

Barter/Network Programming:  The FCC explained that the foreign sponsorship identification rules will be triggered 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 the context of a lease of broadcast time in exchange for the airing of material provided by a foreign governmental entity.  The FCC also noted its general sponsorship ID precedent that “[i]In barter-type arrangements, which can include network affiliation agreements, the program supplier provides the station its program, which the station purchases by allowing the program provider to use some or all of the station’s advertising airtime during the program.  Thus, in barter arrangements the broadcaster effectively purchases programming in exchange for valuable consideration in the form of advertising time, thereby immunizing the exchange from the sponsorship identification requirement.”  Yet, with no record of foreign governments employing barter or network distribution avenues, the FCC reserved for clarification in the future, if warranted, whether barter-type arrangements are subject to the foreign sponsorship requirements.

Reasonable Diligence:  The broadcast licensee must exercise “reasonable diligence” to determine if an entity or individual that is purchasing airtime on the station, or providing any “political program or any program involving the discussion of a controversial issue” 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 the foreign sponsorship identification rules.  The FCC specifies these minimum diligence requirements:

1.       Inform the lessee at the time of agreement and at renewal of the foreign sponsorship disclosure requirement;

2.       Inquire of the lessee at the time of agreement and at renewal whether it falls into any of the categories that qualify it as a “foreign governmental entity”;

3.       Inquire of the lessee at the time of agreement and at renewal whether it knows if anyone further back in the chain of producing/distributing the programming that will be aired pursuant to the lease agreement, or a sub-lease, qualifies as a foreign governmental entity and has provided some type of inducement to air the programming;

4.       Independently confirm the lessee’s status, at the time of agreement and at renewal, by consulting the Department of Justice’s FARA website and the Commission’s semi-annual U.S.- based foreign media outlets reports for the lessee’s name;

5.       Memorialize the above-listed inquiries and investigations to track compliance in the event documentation is required to respond to any future Commission inquiry on the issue.

The FCC strongly encourages licensees to include a provision in their lease agreements requiring the lessee to notify the licensee about any change in the lessee’s status that would trigger the foreign sponsorship identification rules.  The FCC also expects, similar to payola/plugola diligence, that licensees will exercise reasonable diligence to ascertain whether consideration has been provided in exchange for the lease of airtime or in exchange for the airing of materials directly or indirectly to the station, as well as whether anyone involved in the production, preparation, or supply of the material has received compensation, and that an appropriate disclosure will be made about the involvement of any foreign governmental entity.

Lessee’s and Programmer’s Obligations:  The FCC has determined that the lessee, whether or not it is an FCC-licensee, holds an independent obligation to communicate to the licensee of the subject station the lessee’s knowledge of any payment or consideration provided by, or unpaid programming received as an inducement from, an entity or individual that triggers the foreign sponsorship identification rules.  This obligation applies also to any person “who, in connection with the production or preparation of any program…” or “who supplies to any other person any program” to convey any information such person may have about the provision of any inducement to broadcast the program in order to necessitate a sponsorship identification disclosure by the licensee.  Such non-licensee individuals 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 by a foreign governmental entity.

Content and Frequency of Required Disclosure of Foreign Sponsorship:  The text of the required disclosure must be as follows, with the disclosure to use one of “sponsored” or “paid for” or “furnished”:

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

For televised programming, the visual disclosure must be in letters equal to or greater than four percent of the vertical picture height and be visible for not less than four seconds to ensure readability.  Radio disclosures must be “audible.”  The disclosure be made at both the beginning and conclusion of the broadcast station programming, except that, for any broadcast of 5 minutes duration or less, only one such announcement must be made at either the beginning or conclusion of the program.  Moreover, for programming of greater than 60 minutes in duration, an announcement must be made at regular intervals during the broadcast, but no less frequently than once every 60 minutes.

Multicast Streams: These standardized disclosure requirements apply equally to any programming transmitted on a broadcast station’s multicast streams.  For radio, that includes HD2, HD3 and HD4 channels.

Public File:  A broadcast station licensee must place in its online public inspection file (“OPIF”) the actual foreign government programming sponsorship disclosure and the name of the program to which the disclosure was appended.  In addition, the licensee must state the date and time the program aired.  If there were repeat airings of the program, then those additional dates and times should also be included in the OPIF.  Also, to the extent the foreign programming consists of “a political matter or matter involving the discussion of a controversial issue of public importance,” licensees must obtain and disclose in their OPIFs a list of the persons operating the entity providing the programming, as currently required for any such matters.

The foreign sponsorship uploads to the OPIF must be made on the same quarterly basis as Issues/Programs Lists (that is, by the 10th day after the end of each calendar quarter:  April 10, July 10, October 10, January 10).  The OPIF uploads must be to the standalone folder marked as “Foreign Government-Provided Programming Disclosures.”  These uploads must be maintained in the OPIF for a two-year period.  

FCC Multiple Ownership Rule Changes Reinstated:  April 2021

The US Supreme Court has overruled the Third Circuit in the Prometheus multiple ownership proceeding, finding that “The FCC’s decision to repeal or modify the three ownership rules was not arbitrary and capricious for purposes of the [Administrative Procedure Act].”

The two ownership rules that were repealed by the FCC in 2017 (and now, with the Supreme Court decision, can finally be taken off the books) are the Newspaper/Broadcast Cross-Ownership Rule and the Radio/Television Cross-Ownership Rule.

Thus, daily newspapers can now own or have an attributable interest in local broadcast TV and radio stations (subject only to the distinct Local TV and Local Radio Ownership limits) and vice versa – broadcasters can invest in or own local daily newspapers.

As to the now-affirmed repeal of the Radio/Television Cross-Ownership Rule, local television and radio combinations will now be permissible so long as the respective Local TV and Local Radio Ownership Rule limits are met.  The Radio/Television Cross-Ownership Rule had been diluted previously, so that in the largest markets, one entity was permitted to own, in combination, either two television stations and six radio stations or one television station and seven radio stations.  Now, it’s just a question of whether that market’s Local TV Ownership Rule is met and whether that market’s Local Radio Ownership Rule is met, without looking at the TV-Radio combination.

The modified ownership rule reinstated by the Supreme Court is the Local Television Ownership Rule.  The modified Local Television Ownership Rule eliminated the 8-Voices test and allows a case-by-case review of combinations involving two Top-4 rated TV stations.

The Supreme Court also reversed the Third Circuit’s action vacating the FCC’s 2018 Incubator Order and the definition of an “eligible entity.”

Note that the Local Radio Ownership Rule – or its AM/FM subcaps -- was not at issue here.  However, the FCC should breathe easier that it can loosen or modify its broadcast ownership rules going forward.  That is not to say that would happen under the current administration, which might feel freer, given the deference given to the agency by the Supreme Court, to tighten broadcast ownership restrictions.

All-Digital AM

In October 2020, the FCC  adopted a Report and Order authorizing voluntary All-Digital AM (attached), to be effective 30 days after Fed Reg publication (except for new 73.406 – notification to the FCC -- which requires OMB approval).  Some highlights:

In this Report and Order, we adopt rules to allow AM radio stations to broadcast an all-digital signal using the HD Radio in-band on-channel (IBOC) mode named MA3.1 A voluntary conversion to all-digital broadcasting will benefit many AM stations and their listeners by improving reception quality and listenable coverage in stations’ service areas. 

AM broadcasters overwhelmingly support the proposal to allow all-digital AM broadcasting,35 as do broadcast engineers;36 technology companies,37 and some individual listeners.38 No broadcasters opposed the all-digital proposal and only nine individuals opposed it.39

We adopt the proposal in the NPRM to allow AM broadcasters, at their discretion, to broadcast using the HD Radio all-digital MA3 mode.41 The record establishes that all-digital AM has the potential to significantly aid in the revitalization of the AM service. Commenters overwhelmingly agree that all-digital operation can alleviate many of the problems stemming from hybrid operation, allowing AM broadcasters and listeners to take full advantage of the potential benefits of digital broadcasting.42

Importantly, commenters believe that all-digital operation will increase the format choices that AM broadcasters can offer to their audiences, including the option of music programming (in full stereo if using enhanced mode).46 Hubbard asserts that all-digital operation will also allow AM broadcasters to provide program and station information along with the main audio stream more reliably than in hybrid mode.47 Finally, commenters note that the all-digital mode is designed to potentially support an HD-2 second programming stream.48 Having these capabilities will help “level the playing field with FM analog and digital broadcasts, doing much to remove the disparity between AM and FM signals from the listener’s perspective.”49

We reject assertions that we should mandate some or all AM stations to continue broadcasting in analog because all-digital broadcasting would disenfranchise analog listeners.50 The AM hybrid mode, authorized in 2002, was designed to ensure continuity of service during the early stages of the digital transition.

While we are mindful of the possibility of some consumer disruption, we conclude—based on the record evidence before us—that all-digital service represents a significant and perhaps singular opportunity to preserve the AM service for future listeners. In this respect, we emphasize that all-digital operation is purely voluntary; broadcasters can determine for themselves whether their listeners are ready for all-digital radio.

We are not persuaded that the current level of availability of digital receivers should delay voluntary all-digital AM operation. Although commenters debate whether the existing receiver base is adequate to support widespread digital AM service,68 the data provided by Xperi shows sufficient receiver penetration (an estimated 70 million receivers shipped to North America, with 90% still in use) to support a voluntary option for AM broadcasters to start all-digital broadcasting based on their own circumstances and market conditions.69 The majority of HD Radio receivers in service (60.9 million) are installed in cars, require no changes to receive all-digital service, and thus present no direct additional cost to consumers.70 We also anticipate that our regulatory approval of the HD Radio all digital transmission technology could help boost consumer sales of HD Radio receivers by removing any uncertainty about the future of the AM HD Radio system. Moreover, as discussed in more detail in paragraph 10, supra, it will be in most broadcasters’ interest to transition to all-digital only when there are a sufficient number of listeners with digital receivers in their market.

We find that the potential costs of conversion should not inhibit AM broadcasters from having the option to voluntarily transition to all-digital operation. The record indicates that the cost of conversion will vary widely from station to station;71 however, because conversion is voluntary, stations can make their own decisions whether to pursue all-digital operations based on their own financial and technical situation as well as the needs and interests of their audience and the number of digital receivers in their market.72

In sum, we emphasize that each AM licensee will make its own determination whether to convert to all-digital, taking into account the factors described above, such as the specific conversion costs and whether listeners in its market have access to digital receivers. Therefore, we anticipate that while some broadcasters may be prepared for immediate conversion, many broadcasters may choose to postpone all-digital conversion based on their own circumstances and the readiness of their market.83 This gradual rate of conversion will help facilitate an orderly transition by allowing both the Commission and the industry to make any adjustments that may be necessary to the all-digital framework adopted herein.

We adopt the proposal in the NPRM that each all-digital station is obligated to provide at least one free over-the-air digital programming stream that is comparable to or better in audio quality than a standard analog broadcast.

Because the record does not establish that an audio stream on an HD-2 subchannel is currently technically feasible, we will evaluate requests to rebroadcast multicast channels on an FM translator on a case-by-case basis until a more fully developed record is available on this subject. 

We authorize all-digital operations subject to the requirement that such operations do not cause prohibited interference (as defined in sections 73.37, 73.182 and 73.187 of the rules) to other broadcast stations and follow the remediation procedure set out in paragraph 32, infra. 

In the event that prohibited interference does occur, we adopt a streamlined resolution procedure based on the procedures currently applicable to hybrid stations.142 It is our expectation that AM all-digital operators and complaining stations will work together to identify whether interference exists and to resolve interference complaints in a mutually acceptable fashion, including voluntary power reduction.143 To facilitate this, we amend section 73.404(b) of the rules to allow up to 6 dB reduction of all-digital secondary or tertiary sidebands to avoid or resolve prohibited interference. 

If the parties fail to reach an agreement that resolves the interference complained of, the affected station may file an interference complaint with the Commission, describing the technical means used to identify all-digital interference and fully documenting the source and extent of the interference. Although, as explained in paragraph 25, supra, we are not mandating compliance with the NRSC-5-D Standard, we strongly recommend that station engineers configure their systems according to industry best practices and the specifications set out in the voluntary industry standard NRSC-5-D and HD Radio Specifications.

We agree with the many commenters that argue that all-digital operation should be permitted both day and night.

we confirm the existing obligation of all-digital AM licensees, like any digital audio broadcast provider, to participate in the national Emergency Alert System (EAS).

we will require licensees to electronically file a digital notification,173 using the existing FCC Form 335-AM Digital Notification (or any successor notification), to notify the Commission of the following changes: (1) the commencement of new all-digital operation; (2) an increase in nominal power of an all-digital AM station; or (3) a transition from core-only to enhanced operating mode. All-digital AM notifications will be placed on a Commission public notice, and new operation may begin no sooner than 30 calendar days from the date of this public notice.

until the Form 335-AM is updated to display all-digital operation requirements, we direct filers to select “N/A” as appropriate within the form and submit an attachment with the Form 335-AM containing the following information: a) the type of notification (all-digital notification, increase in nominal power, reduction in nominal power, transition from core-only to enhanced, transition from enhanced to core-only, reversion from all-digital to hybrid or analog operation); b) the date that new or modified all-digital operation will commence or has ceased; c) a certification that the all-digital operations will conform to the relevant nominal power and spectral emissions limits; d) the nominal power of the all-digital station; e) a certification that the all-digital station complies with all EAS requirements; and f) if a notification of commencement of new all-digital service or a nominal power change, whether the station is operating in core-only or enhanced mode.

During the 30-day period established above, we require an AM broadcaster commencing new all-digital operation to provide reasonable notice to its listeners that the station will be converting to all-digital operation and will no longer be available on analog receivers. …Because we agree with NAB that broadcasters have a strong incentive to promote such a change to their listeners,175 we give broadcasters flexibility to use reasonable methods intended to reach their audience, including on-air and website announcements.

To the extent that commenters propose specific rule changes to or increased enforcement of Parts 15 or 18 to reduce noise floor levels caused by RF devices and other sources, we find those proposals beyond the scope of this proceeding.184 For the same reason, we will not consider arguments relating to: (1) the sunset of AM translators;185 (2) establishing a Low Power AM service;186 (3) waiving regulatory fees for all-digital AM stations;187 (4) allocating television spectrum for FM replacement facilities for AM broadcast stations on a primary basis;188 (5) allowing translator rebroadcasting from an all-digital AM primary station to originate programming;189 (6) disallowing use of HD Radio hybrid mode;190 (7) authorizing AM programming on audio-only channels in ATSC 3.0 TV broadcasts;191 (8) widening the FM band;192 (9) other AM revitalization-related proposals, such as eliminating third-adjacent channel protections;193 and (10) receiver standards.