A battle against the FCC that sees the NAB; Multicultural Media, Telecom and Internet Council (MMTC); and the National Association of Black Owned Broadcasters (NABOB) join hands in a united fight to stop the Commission’s order mandating disclosures for foreign government-sponsored programming has yielded a freshly submitted reply brief — one that reiterates its belief that the new rules are overreaching and burdensome.
Another reply brief was filed on Friday by the three groups with U.S. Court of Appeals for the District of Columbia Circuit. The organizations have waged a legal challenge of the FCC’s order requiring disclosures for programming tied financially to a foreign government. The matter is pending judicial review, and oral arguments in the case are scheduled for April 12.
In the brief, the organizations refute the FCC’s claims that the rule is lawful and argue that the rule violates with the Communications Act, the First Amendment and the Administrative Procedure Act.
On April 22, 2021, the FCC adopted what the three broadcast media advocacy groups call “unnecessary and overly burdensome rules that impose on every broadcaster onerous requirements to make specified inquiries of, and conduct independent research on, all the entities with whom broadcasters currently or will in the future have lease agreements.”
As the FCC sees it, the rules will “eliminate any potential ambiguity to the viewer or listener regarding the source of programming provided from foreign governmental entities.”
Specifically, the new FCC rule states that by having stations identify its sources of programming, “we seek to address an important issue of public concern while going no further than necessary, thus balancing considerations of the First Amendment with the need for consumers to be sufficiently informed as to the origin of material broadcast on stations licensed on their behalf in the public interest.”
The Commission rule goes on to say by refining the rule it is ensuring that the public is fully informed on the source of programming consumed. It notes, “We find it is critical that the American public be aware when a foreign government has sponsored, paid for, or, in the case of political programs or programs involving the discussion of a controversial issue, furnished the programming for free as an inducement to air the material, particularly given what seems to be an increase in the dissemination of programming in the United States by foreign governments and their representatives.”
In August 2021, the NAB, NABOB and the MMTC moved ahead and filed a petition for review with the U.S. Court of Appeals for the District of Columbia Circuit challenging the Order.
In the latest objection brief from the three organizations, NAB, NABOB and MMTC say the rule is “pointless” and addresses a “phantom harm” that is highly unlikely to occur since foreign agents, under threat of criminal penalties, must disclose their three foreign principal in all programming and supply copies of that programming to the Department of Justice.
The Order requires broadcasters to conduct investigations of every programming lease, even infomercials and local programming. The groups say it is “arbitrary and capricious under the Administrative Procedure Act.”
The target of the R&O? It is most likely the Sputnik radio service, which airs on an FM translator serving the Washington, D.C., market and in select hours on a Kansas City radio station; W288BS is owned by prominent communications attorney John Garziglia, through his licensee Reston Translator LLC.
The Order also likely targets URadio, a Chinese-language service said to be funded by the People’s Republic of China that uses XETRA-AM 690 in Tijuana, Baja California to serve audiences in Southern California.
— Reporting by Ed Ryan and Adam R Jacobson
