FCC Adopts New Certification Rules to Protect Stations from “Foreign “Adversaries”

At its January meeting, the FCC adopted a new certification requirement for communications licensees, including broadcast stations, which are owned by a “foreign adversary.”  The FCC noted:

“[W]e find generally that Foreign Adversary Control of entities that hold Commission licenses or authorizations could potentially raise significant national security risks by providing opportunities for foreign adversary governments to access, disrupt, and/or misroute U.S. communications, which in turn allows them to engage in espionage and other harmful activities against the United States. For example, misuse of broadcast or wireless equipment by foreign adversaries could result in public mayhem from false emergency alerts, public safety risks if emergency alerts were deliberately suppressed, or disruption of Presidential messages."

The rules would apply to a licensee that is “owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary.”  The Commission defines “owned or controlled by” using the same definition that it used previously when addressing the problem with submarine cables.

The Commission defined “foreign adversary” as “any foreign government or foreign non-government person determined by the Secretary of Commerce...to have engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the United States or security and safety of United States persons.”  Consistent with its prior decision regarding submarine cables and the Department of Commerce, the Commission listed the following countries as “foreign adversaries.”  

• The People’s Republic of China, (including the Hong Kong Special Administrative Region and the Macau Special Administrative Region);

• Republic of Cuba;

• Islamic Republic of Iran;

• Democratic People’s Republic of Korea;

• Russian Federation;

• Venezuelan politician Nicolás Maduro

  
  

The Commission established slightly different reporting obligations depending on the potential threat to security.  Broadcast stations include AM, FM, Low Power FM, FM Translator, FM Booster, TV, Class A TV, Low Power TV, and TV Translator station licenses.  Stations with 6 or more employees are categorized as Schedule A.  These stations are required to submit an attestation either affirming or denying Foreign Adversary Control.  These stations have 60 days to comply.

Smaller stations with less than 6 employees are categorized as Schedule B. Schedule B stations are only required to submit an attestation affirming Foreign Adversary Control.  To mitigate the burdens on smaller broadcasters, the FCC adopted the less burdensome Schedule B attestation requirement, which enables broadcasters with five or fewer employees to comply with attestation and disclosure requirements only in the event of Foreign Adversary Control.  In addition, the Commission provides an extended initial response period, 120 days, for certain small broadcasters.

The rules also extend to content leased on a station that is sponsored by a foreign adversary.  In these instances, stations may be required to file a foreign lessee’s information with the FCC.  These new rules track the FCC’s foreign sponsorship ID rules.  

“As such, in the broadcast context, we consider a recipient of an affirmative response from a foreign adversary to the required inquiries applicable to airtime lessees under the Commission’s foreign sponsorship identification rules to be subject to a higher national security risk comparable to Foreign Adversary Control, and require such recipients to file foreign adversary lessee information with the Commission. Specifically, any broadcaster that receives an affirmative response under the Commission’s foreign sponsorship identification rules from a lessee that is a foreign adversary must file with the Commission the information the lessee provided to the broadcaster.  If the broadcast licensee has fewer than six employees and receives an affirmative response under the Commission’s foreign sponsorship identification rules from a lessee that is a foreign adversary but the licensee itself does not meet the criteria for a “yes” attestation, then the broadcaster will fulfill its duties under Schedule A by filing a copy of the lessee’s information with the Commission; the licensee will not be required to attest “no.”

The new rules are not limited to broadcasters.  They apply to a variety of communications licenses issued by the Commission.  Broadcasters may have a number of these ancillary licenses and should review the FCC decision carefully.  If you have a foreign ownership interest or lease time to a foreign government, you should have your attorney look at these new rules.

You can see the FCC’s decision along with separate statements from the commissioners here.