On behalf of Scott Flick
Broadcast stations face a September 15 deadline to ensure that all programming aired on their stations complies with the FCC’s foreign sponsorship disclosure requirements.
The Foreign Sponsorship Disclosure Rule was adopted by the FCC in April 2021, targeting airtime lease agreements between broadcasters and foreign governments or their representatives. The rule requires stations to take specific steps to ensure that the public is made aware of any programming aired that is provided, funded, or distributed by “governments of foreign countries, foreign political parties, agents of foreign principals, and United States-based foreign media outlets.”
Specifically, broadcasters are required to notify program suppliers leasing airtime or providing free programming to the station for airing that there is a disclosure requirement that applies to programming provided by foreign government entities or their agents, and to affirmatively ask whether the programmer is a foreign government entity or an agent of one, as well as whether a foreign government entity or an agent of one was involved in the preparation, funding, or distribution of the programming.
That inquiry must be documented by the broadcaster, and the broadcaster must retain that documentation for the remainder of the station’s license term, or one year, whichever is longer. If the inquiry results in a determination that the programming was in fact prepared, funded, or distributed by a foreign government entity or an agent of one, then a disclosure notice must air at the beginning and end of the program, stating: “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]. If the program length is five minutes or less, a single announcement can be aired either at the beginning or end of it, and if it is longer than an hour, the announcement must also air at regular intervals, airing at least once per hour. Note that the FCC specifically excluded agreements to air short-form advertising from its definition of leasing agreements covered by the Rule.
In addition to airing the disclosure, the station must upload a copy of the disclosure, along with the name of the affected program and the dates and times it aired, to its Public Inspection File on a quarterly basis. These materials should be uploaded to the standalone file folder titled “Foreign Government-Provided Programming Disclosures.”
The Foreign Sponsorship Disclosure Rule went into affect for new airtime leasing arrangements on March 15, 2022. However, because the Rule applies to both newly-entered and existing airtime leasing arrangements, the FCC provided a six-month period for stations to complete the inquiry/documentation process for airtime arrangements created prior to March 15, 2022.
That grace period ends on September 15, 2022, at which point stations should have completed their inquiries for all programming arrangements (not just pre-March 15, 2022 leasing agreements), documented those inquiries, and commenced airing on-air disclosures for any content that must be identified as having foreign government-connected sponsorship. Therefore, to the extent they have not already done so, stations with existing airtime leasing agreements should reach out to the program provider to determine whether a disclosure is required.
For new airtime agreements going forward, broadcasters may want to consider making the notice and inquiry part of the leasing agreement, integrating language into the leasing agreement forms to include a discussion of the disclosure requirement and requiring the programmer to affirmatively verify whether an on-air disclosure is required. To the extent that the programmer discloses that it is a foreign government entity or agent, then the agreement should note that the station will be running the required disclosure.
That approach of course doesn’t work for agreements that were previously created (unless done as an amendment to the original contract), so stations needing to document their inquiries relating to agreements that predated March 15, 2022 will need to separately document the inquiry, and then ensure that any program content determined to require a disclosure commences airing with the disclosure no later than September 15.
As noted, the Rule applies to all agreements to lease airtime to third parties. Therefore, to the extent that they have not already done so, broadcasters should be sure to complete their inquiries, document them, and commence airing the required disclosures. Stations should also be careful not to forget to upload those disclosures to their Public Inspection File each quarter.