With the best of intentions, last October the Federal Communications Commission (FCC) proposed new rules for radio and television broadcasters purportedly designed to help the public better understand when they are watching or listening to content sponsored by a foreign government. NAB agrees with this goal and is willing to support narrowly tailored rules to achieve that end.
To be clear, only a handful of these cases even exist on broadcast radio or television. Five of the six instances of which NAB is aware occurred on radio or low-power television. Barely a blip on the overall media landscape.
By contrast, consider pay-TV providers, such as DISH and DirecTV, which provide foreign government-sponsored networks such as CGTN and RT America across the entire nation. And let’s not forget the league leader when it comes to foreign government-sponsored content: the internet. The web is littered with foreign governmental attempts to influence U.S. elections and policy. The Commission’s proposal, however, doesn’t address or even meaningfully acknowledge these actual threats.
Nevertheless, even with broadcasters again on the receiving end of yet more asymmetric regulation, we agree with the FCC that viewers and listeners should know if content they are watching or listening to on the radio or TV is sponsored by a foreign government. And we are willing to aid that cause.
But rather than focus on that discreet goal, the Commission unfortunately is poised to broaden its regulatory scope to ensnare far more broadcasters than are engaged with foreign governments or their agents. In addition to requiring broadcast radio and TV stations to air uniform announcements making clear when content is sponsored by a foreign government, the FCC is now proposing that over-the-air broadcasters entering into lease agreements with any programmers must take a series of steps to figure out if they are dealing with a foreign government in the first instance.
You might be wondering if there is an exception for the station leasing time to a long-standing trusted business partner, right? Nope. What if you are leasing time to a local church for services on Sunday mornings? Nope. Surely, it can’t involve leases for the 3:30 a.m. long-form Snuggie infomercial? Sorry, it does, says the FCC. A minority-owned broadcaster’s lease with the only local Korean-language programmer that provides critical local news and information to the residents of San Jose? No exceptions. Each of these stations – and hundreds if not thousands like them – are now on the verge of being mandated to undertake steps to prove in advance they are not dealing with foreign governments, even when they each know with certainty they are not.
If this proposal becomes law in anything close to its current form, it would represent old-world regulation at its worst. There is simply no good reason why the Commission needs to saddle thousands of leases with new burdens of any kind, especially when the Commission hasn’t even asserted that broadcasters often do not know in the first instance if content they are airing is sponsored by a foreign government. Nothing in the Commission’s record indicates that there is a groundswell of foreign propaganda over-the-air across the country, nor does it demonstrate that broadcasters are often confused over the origins of the programming they air. Interestingly, those things do happen on other platforms. Just not over-the-air.
The FCC should not simply saddle broadcasters with this needless obligation – or rather, multiple needless obligations – because it can regulate broadcasters but not social media companies. That is regulation at its worst, and it should not make a return. If the Commission can’t address a widespread problem that occurs almost exclusively on other platforms, why not ask Congress to step in with regulations that actually meet the problem rather than reflexively burdening over-the-air broadcasters? If anything, the Commission should be reticent to add burdens on one industry that are wildly asymmetrical to the regulation of other industries and that will barely address the actual problem.
The FCC’s insistence on under-appreciating the burdens of regulation on broadcasters also perversely undermines other stated Commission goals. In particular, with each added regulation, the FCC makes broadcasting a less attractive investment, including for new entrants and historically underrepresented groups. Potential investors and the sources of capital for those investors look less favorably on investments in heavily regulated industries. Given the many other options for entrepreneurs and investors – especially in the media space – the Commission itself drives away potential diverse owners with each new unnecessary or asymmetric burden. If the Commission is truly committed to increasing diversity among broadcast owners, it should carefully weigh the impact of its new regulatory actions before piling more on.
Fortunately, the Commission has time to fix its proposal before approving it later this week. NAB hopes the Commission takes the impact of regulations – of any kind – seriously before adding another unnecessary burden on broadcasters. It is patently unfair to require anything of broadcasters who do not have reason to believe they are engaging with a foreign government or its agent. The Commission still has time to do the right thing, and we hope it understands all the implications of its decision before it acts.