The three judges — a Trump appointee, an Obama appointee and a George W. Bush appointee — all agreed in a Tuesday ruling that current law imposes on broadcasters “a duty of inquiry, not a duty of investigation,” and that the FCC could not expand that requirement.
“Congress chose the means for broadcasters to obtain the information necessary to announce who paid for programming,” the panel of the U.S. Court of Appeals for the D.C. Circuit ruled. “The FCC cannot alter Congress’s choice.”
Broadcast TV and radio stations must declare on air when programming has been paid for by a sponsor. But in determining the identities of those sponsors, current law requires broadcasters only to consult their own employees and the outside entities they deal with directly. The FCC said in court filings that system had proved inadequate, citing media reports about the Chinese and Russian governments using intermediaries to get on American airwaves. (Foreign governments are barred from directly owning U.S. broadcast licenses.)
It’s “a simple name check” to “confirm the information,” FCC attorney Bill Scher said at oral argument in April. If someone leasing radio time claims not to be a foreign agent and comes up in one of the two databases, “an alarm has gone off,” but it’s up to the broadcaster to decide how to handle it under existing law.
The opponents said that was more complicated than the FCC suggested, because after checking the federal lists, the broadcasters would still have to figure out whether and what kind of disclosure was required.
“Broadcasters are not investigatory bodies,” Stephen B. Kinnaird, representing the broadcasters, said at oral argument. “These are country music DJs, local businessmen in small towns who sell advertising. They’re not lawyers and analysts.”
Kinnaird said the broadcasters “would have no problem simply with an expanded disclosure” requirement but that the order was “extreme overkill.”
In a statement, NAB President Curtis LeGeyt said the “decision ensures that the rules rightly continue requiring the handful of stations airing foreign government-sponsored programming to identify it as such, but removes the burden on the overwhelming majority of stations that never air foreign government-sponsored content.”
John Bergmayer, legal director at Public Knowledge, a nonprofit that advocates for better communications access, said that “given the obvious importance of the issue it’s alarming that the court would adopt such a reading of the statute.”
While the direct impact might be limited, he said, “it does seem part of a trend where courts go out of their way to prevent agencies from carrying out their core missions.”
In a statement, FCC Chairwoman Jessica Rosenworcel said the rule was “about transparency. Consumers deserve to trust that public airwaves aren’t being leased without their knowledge to private foreign actors.”
The court did not strike down requirements that broadcasters ask whether sponsors are foreign agents or working with foreign governments and disclose that relationship.
A former Spanish-language station in the D.C. area is one of a handful across the country that airs Russian propaganda; the small broadcaster regularly discloses that “this radio programming is distributed … on behalf of the Federal State Unitary Enterprise Rossiya Segodnya International Information Agency.”
After the invasion of Ukraine, LeGeyt made an unusual call for station owners to stop carrying Russian state-sponsored programming.
“The First Amendment protects freedom of speech, however, it does not prevent private actors from exercising sound, moral judgment,” he said in the March statement.
This story has been updated with comment from the FCC.
