David Oxenford

By: David Oxenford, Wilkinson Barker Knauer

The FCC this week issued a Public Notice announcing the effective date of certain portions of the FCC Order released in June adopting changes to its requirements that broadcasters obtain certifications from buyers of program time on their stations that the sponsors are not foreign governments or agents of those governments.  As we wrote when the Order was released, the order had some good parts and some that could add additional burdens on broadcasters.  It is the latter that become effective on August 15, with most of the rest awaiting approval for the information collection requirements from the Office of Management and Budget under the Paperwork Reduction Act.

What is the “bad part” that will become effective on August 15?  It is the portion of the Order that requires broadcasters to get certifications not only from the buyers of program time (certifications that have been required since March 2022 – see our article here), but that they also get these certifications from buyers of spot advertising time unless the ad is for a commercial product or service.  That means that broadcasters, when they are selling political issue ads and paid PSAs, will need to go through the same process as they do when they sell blocks of program time.  They will need to get the sponsor of these ads to provide a certification consistent with the  the certification requirements for all leased programming time, to demonstrate that the buyer is not a foreign government or the agent of a foreign government.  As we will be entering the peak of political advertising time just about the time that this Order becomes effective, and as so much money is not spent by candidates but instead by PACs and other non-candidate political organizations, this will immediately impose new information gathering requirements from these political buyers – right in the heat of a campaign.

Candidate advertising was exempted, as the majority of the Commission determined that rules of other government agencies (including those of the FEC) ensure that no foreign government will be buying time.  So, for the purpose of this rule, we don’t have to worry about new information collection requirements for candidate advertising (though, as we noted in our weekend update on regulatory activity of interest to broadcasters, comments may soon be sought on whether to impose an obligation on broadcasters to take steps to assure that all uses of artificial intelligence in candidate ads are disclosed).

The decision did not exempt other ads that are not for commercial products or services.  As noted above, this includes paid PSAs and other noncommercial advertising.  I’ve already been asked at broadcaster conferences if the FCC really expects stations to ask the state tourist agency or local health department to provide certifications that these US or state government agencies are not representatives of foreign governments when these agencies buy advertising – as they are not advertising commercial products or services.  .  Does it make sense to ask if the Army or Marines are a representative of a foreign government when they buy advertising time?  Getting a state or federal government agency to certify that they are not the representative of a foreign government does not seem to make any sense.  Nor does getting a certification from some big charity or religious organization promoting some nonprofit event.  Would nonprofit colleges and universities be required to sign these certifications before they buy ads urging people to enroll in a nonprofit college?  These are unanswered questions – that perhaps would have been answered had the FCC asked for comments on the proposal.  But as these issues were not addressed, broadcasters are left wondering what to do.

The publication of this order in the Federal Register, which triggered the FCC’s Public Notice, also set the dates for appeals or requests for reconsideration of these rules.  Given the great number of unanswered questions (questions not even posed in the rulemaking leading to the FCC’s Order), one would expect that a challenge will be filed.  But that challenge may not stop the rule from going into effect, so broadcasters should now be considering how they will deal with this obligation to be ready for the August 15 effective date.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access). There are no additional costs for the call; the advice is free as part of your MAB membership.