Court Upholds FCC Foreign Program ID Rules

In 2021, the FCC enacted new rules that required stations to make an on-air foreign sponsorship identification for programming “leased” by a foreign government or its agent. The rule applied only to traditional leasing agreements involving a “discrete block of time.” Traditional short-form advertisements were excluded.  The FCC also imposed an obligation on stations to use “reasonable diligence” to determine whether a block of time had been leased to a foreign government or its agent.

The U.S. Court of Appeals later upheld much of the decision, but struck down the

obligation that a local station must search government websites to determine if they are

leasing broadcast time to a foreign government.  The court reasoned that under the

Communications Act, a station is only required to make inquiries to the person/entity

purchasing the time.

The FCC issued a new decision in 2024.  The FCC made several important changes.  The

NAB opposed the new rules and filed a lawsuit with the U.S. Court of Appeals for the

District of Columbia.  The court rejected NAB’s concerns.  Absent a further appeal, the rules

enacted in 2024 will go into effect.

Short-form Exemption Eliminated: The Court upheld the FCC’s decision to abandon the

automatic exemption for “short form” advertisements.  There is no exemption based on the

“duration” of a message.  Thus, as a general rule, short-form messages sponsored by foreign

governments or their agents will require a sponsorship ID, unless they fall within a specific

exemption. 

Commercial Ad Exemption – The court upheld the FCC’s decision to provide a

Commercial Ad exemption to the rule.  47 CFR § 73.1212(f) extended the Commercial Ad

exemption now used for commercial advertising of foreign content.   The Commission

explained:

“For an advertisement to fall under the commercial exemption provisions of 73.1212(f), it must include the sponsor’s corporate or trade name, or the name of the sponsor’s product, when it is clear that the mention of the name of the product constitutes a sponsorship identification...By clarifying  that our foreign sponsorship identification rules do not trump the pre-existing sponsorship identification rules for advertising for commercial products or services, we address the concerns raised by commenters about the terminology used in The First R&O with regard to advertising.”

Candidate Political Advertisements Exempt: The Court upheld the FCC’s decision to exempt

advertisements by a candidate’s authorized campaign committee.

PSAs and Third-Party Issue Ads Not Exempt: Public Service announcements (PSA) and

issue ads purchased by a non-candidate third party are not exempt if they are paid for by a foreign government or its agents.  They must have a foreign sponsorship ID.

Due Diligence and Certifications: The Court also upheld the process for determining

whether a content has been purchased by a foreign government or its agent.  The court

upheld both the “certification option” and the “screenshot option” for determining if

content is foreign-based.  Pursuant to the certification option, a station can provide the FCC

with a written certification that it has complied with the regulations and has sought a

written certification from the foreign lessee.  In this regard, the court recognized the

standard form certifications approved by the FCC.  The Court also recognized the

“screenshot option” in which a licensee can ask a foreign lessee to search its own name in

the Foreign Agents Registration Act database (FARA) and US-based foreign media outlets

databases and provide a screenshot of the results. 

While the Court has upheld the rules, it is worth noting that FCC Chairman Carr believed that the FCC did not give sufficient notice that it would be eliminating the short-form exemption.  Given the Court’s ruling on this point, it is not clear whether Chairman Carr will seek to revisit this issue.

As noted previously, the FCC extended until December 8, 2025, the compliance deadline for other aspects of the June 2024 Order.  However, it did not address when the obligation to verify that sponsors of spot time are not agents of foreign governments would become effective.  You should consult your communications counsel on this issue.

You can see the Court of Appeals Decision here.

The FCC’s Foreign ID Rules can be found here.

You can find a good explanation of the FCC’s rules from noted attorney David Oxenford here.