[Federal Register Volume 87, Number 221 (Thursday, November 17, 2022)]
[Proposed Rules]
[Pages 68960-68975]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24393]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket No. 20-299; FCC 22-77; FR ID 111067]


Sponsorship Identification Requirements for Foreign Government-
Provided Programming

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) seeks comment on a certification requirement proposal for 
broadcasters, which would strengthen and fortify the foreign 
sponsorship identification rules in light of the D.C. Circuit's recent 
decision that vacated the verification component of the Commission's 
rules.

DATES: Comments due on or before December 19, 2022; reply comments due 
on or before January 3, 2023.

ADDRESSES: You may submit comments, identified by MB Docket No. 20-299, 
by any of the following methods:
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
    Filings can be sent by commercial overnight courier, or by first-
class or overnight U.S. Postal Service mail. All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 45 L Street NE, Washington DC 20554.
     Effective March 19, 2020, and until further notice, the 
Commission no longer accepts any hand or messenger delivered filings. 
This is a temporary measure taken to help protect the health and safety 
of individuals, and to mitigate the transmission of COVID-19. See FCC 
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an email to [email protected] (mail to: 
[email protected]) or call the FCC's Consumer and Governmental Affairs 
Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

FOR FURTHER INFORMATION CONTACT: Radhika Karmarkar, Media Bureau, 
Industry Analysis Division, [email protected], (202) 418-1523.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Notice of Proposed Rulemaking (Second NPRM), FCC 22-77, in MB Docket 
No. 20-299, adopted on October 4, 2022, and released on October 6, 
2022. The complete text of this document is available electronically 
via the search function on the FCC's website at https://

[[Page 68961]]

www.fcc.gov/document/fcc-proposes-modifications-foreign-sponsorship-id-
requirements.

Synopsis

    1. With this Second Notice of Proposed Rulemaking (Second NPRM), we 
take the next step to ensure that we have strong foreign sponsorship 
identification rules. On April 22, 2021, the Commission released a 
Report and Order (Order) in the above captioned proceeding adopting a 
requirement that radio and television stations broadcast clear 
disclosures for programming that is provided by a foreign governmental 
entity and setting forth the procedures for exercising reasonable 
diligence to determine whether such a disclosure is needed. The Order 
defined the term ``foreign governmental entity'' to include those 
entities or individuals that would trigger a disclosure pursuant to the 
foreign sponsorship identification rules. This Second Notice of 
Proposed Rulemaking accords to the term ``foreign governmental entity'' 
the definition established in the Order. We adopted the requirements in 
response to reports of undisclosed foreign government programming being 
transmitted by U.S. broadcast stations. The principle that the public 
has a right to know the identity of those soliciting their support is a 
fundamental and long-standing tenet of broadcast regulation. We 
promulgated the foreign sponsorship identification rules against the 
backdrop of regulation that has evolved over ninety years to ensure 
that the public is informed when airtime has been purchased on 
broadcast stations in an effort to persuade audiences, enabling the 
public to distinguish between paid content and material chosen by the 
broadcaster itself.
    2. On August 13, 2021, the National Association of Broadcasters 
(NAB), the Multicultural Media, Telecom and internet Council (MMTC), 
and the National Association of Black Owned Broadcasters (NABOB) 
(collectively, Petitioners) filed a Petition for Review of the Order 
with the U.S. Court of Appeals for the District of Columbia Circuit 
challenging one step in our reasonable diligence requirement, 
established to ensure that broadcasters independently confirm the 
lessee's status when determining whether programming is provided by a 
foreign governmental entity. The Petitioners alleged that the 
Commission lacked statutory authority to adopt such a requirement and 
also contended that such a requirement violated the First Amendment and 
the Administrative Procedure Act.
    3. On July 12, 2022, the D.C. Circuit ruled on the Petition for 
Review, leaving untouched the bulk of the foreign sponsorship 
identification requirements and vacating only the provision that 
broadcasters check two federal sources to verify whether a lessee is a 
``foreign governmental entity,'' as defined in the rules.
    4. This Second NPRM seeks to fortify the rules in the wake of the 
court's decision. Specifically, pursuant to section 317(e), which 
directs the Commission to prescribe rules and regulations to carry out 
the provisions of section 317, we propose that, in order to comply with 
the ``reasonable diligence'' requirement regarding foreign sponsorship 
identification, a licensee must certify that it has informed its lessee 
of the foreign sponsorship identification rules and obtained, or sought 
to obtain, a certification from its lessee stating whether the lessee 
is or is not a ``foreign governmental entity.'' In turn, we propose 
that the lessee submit a certification in response to a licensee's 
request. These new certification requirements would subsume the duty of 
licensees under Sec.  73.1212(j)(3)(v) of our rules to memorialize and 
retain their reasonable diligence inquiries. As this Second NPRM 
proposes to establish standardized certification language for licensees 
and lessees, the time and cost associated with compliance should be 
minimal. This Second NPRM also seeks comment on an alternative approach 
to the certification requirement. This alternative approach was raised 
as a hypothetical by the D.C. Circuit during the oral argument in NAB 
v. FCC. Under this approach, in the event that a lessee states it is 
not a ``foreign governmental entity'' a licensee must obtain from the 
lessee appropriate documentation (e.g., a screen shot(s)) showing that 
the lessee's name does not appear on either of the two federal 
government websites which we identified in the Order as reference 
points for determining whether a given individual/entity is a ``foreign 
governmental entity.'' Finally, this Second NPRM provides interested 
parties an additional opportunity to comment on a pending Petition for 
Clarification ``regarding the applicability of the foreign sponsorship 
identification rules to advertisements sold by local broadcast 
stations.''

Background

    5. The Order amended the Commission's long-standing sponsorship 
identification rules by establishing new foreign sponsorship 
identification rules designed to identify foreign government-provided 
programming airing on broadcast radio and television stations. In this 
Second NPRM, our use of the term ``foreign government-provided 
programming'' refers to all programming that is provided by an entity 
or individual that falls into one of the four categories listed in 
Sec.  73.1212(j)(2) of our rules. The foreign sponsorship 
identification rules seek to increase transparency and ensure that 
audiences of broadcast stations are aware when a foreign government, or 
its representatives, are seeking to persuade the American public. The 
rules require a specific disclosure at the time of broadcast if 
material aired pursuant to the lease of time on a licensee's station 
has been sponsored, paid for, or furnished by a foreign governmental 
entity. Consistent with section 317(a)(2) of the Communications Act of 
1934, as amended (Act) and the pre-existing sponsorship identification 
rules, the foreign sponsorship identification rules also require 
disclosure of political programming or programming involving the 
discussion of a controversial issue if such programming is provided by 
a foreign governmental entity for free, or for nominal compensation, as 
an inducement to air. Hence, the phrase ``provided by'' when used in 
relation to ``foreign government programming'' covers both the 
broadcast of programming in exchange for consideration and the 
furnishing of any ``political program or any program involving the 
discussion of a controversial issue'' for free as an inducement to 
broadcast the programming.
    6. The requirements apply to leased programming because the record 
in the underlying proceeding identified leased airtime as the primary 
means by which foreign governmental entities are accessing U.S. 
airwaves to persuade the American public without adequately disclosing 
the true sponsor. The foreign sponsorship identification rules 
established a definition of ``foreign governmental entity'' based on 
existing definitions, statutes, or determinations by the U.S. 
government. Pursuant to the foreign sponsorship identification rules, 
to meet the ``reasonable diligence'' standard of section 317(c) of the 
Act, with regard to foreign government-provided programming, a licensee 
must at a minimum:
    (1) Inform the lessee at the time of agreement and at renewal of 
the foreign sponsorship disclosure requirement;
    (2) Inquire of the lessee at the time of agreement and at renewal 
whether it falls into any of the categories that qualify it as a 
``foreign governmental entity;''

[[Page 68962]]

    (3) Inquire of the lessee at the time of agreement and at renewal 
whether it knows if any individual/entity further back in the chain of 
producing/distributing the programming that will be aired pursuant to 
the lease agreement, or a sub-lease, qualifies as a foreign 
governmental entity and has provided some type of inducement to air the 
programming;
    (4) Independently confirm the lessee's status, at the time of 
agreement and at renewal by consulting the Department of Justice's FARA 
website and the Commission's semi-annual U.S.-based foreign media 
outlets reports for the lessee's name. This need not be done if the 
lessee has already disclosed that it falls into one of the covered 
categories and/or that there is a separate need for a disclosure 
because an individual/entity further back in the chain of producing/
transmitting the programming falls into one of the covered categories 
and has provided some form of service, consideration, or, in the case 
of political programming the programming itself, as an inducement to 
broadcast the programming;
    (5) Memorialize the above-listed inquiries and investigations and 
retain such memorialization in its records for the remainder of the 
then current license term or one year, whichever is longer.
    7. The requirements listed above apply to licensees in the case of 
leased programming when ``money, service or other valuable 
consideration'' is provided pursuant to section 317(a)(1) of the Act. 
Likewise, the requirements apply to licensees, pursuant to section 
317(a)(2), in the case of political programming or programming 
involving a controversial issue even when the programming itself has 
been provided as an inducement to air such programming.
    8. While the ``reasonable diligence'' requirements of section 
317(c) apply to licensees, as noted in the Order, lessees have an 
obligation, pursuant to section 507 of the Act, to communicate 
information to the licensee relevant to determining whether a 
sponsorship identification disclosure is required. Pursuant to section 
507, the lessee's obligation to communicate information to the licensee 
is not limited to just programming provided in exchange for 
consideration. As stated in the Order, the provision of any ``political 
program or any program involving the discussion of a controversial 
issue'' by a foreign governmental entity to a party in the distribution 
chain for no cost and as an inducement to air that material on a 
broadcast station is a ``service of other valuable consideration'' 
under the terms of section 507. Thus, under this section, if an 
individual/entity involved in the production, preparation, or supply of 
programming that is intended to be aired on a station has received any 
``political program or any program involving the discussion of a 
controversial issue'' from a foreign governmental entity for free, or 
at nominal charge, as an inducement for its broadcast, this individual/
entity must disclose this fact to its employer, the person for whom the 
program is being produced, or the licensee of the station. In addition, 
this programming will require an appropriate identification.
    9. Further, the Order established requirements concerning the 
format and frequency of the disclosure that must accompany foreign 
government-provided programming. The foreign sponsorship identification 
rules apply to all new leases and renewals of existing leases as of 
March 15, 2022. Lease agreements that were in place prior to March 15, 
2022, were given an additional six months to come into compliance--
i.e., by September 15, 2022. On June 17, 2021, a summary of the Order 
was published in the Federal Register, and thirty days after 
publication, the rules adopted became effective, although compliance 
with the information-collection and recordkeeping portions was not 
required until after review by the Office of Management and Budget 
(OMB). On March 7, 2022, OMB approved the information collection 
requirements associated with the foreign sponsorship identification and 
public inspection filing rules. On March 15, 2022, the Media Bureau 
announced that the notice of the compliance date for the rule changes 
was published in the Federal Register on March 15, 2022, and thus the 
compliance date for the Commission's foreign sponsorship identification 
rules is March 15, 2022. Sponsorship Identification Requirements for 
Foreign Government-Provided Programming, 87 FR 14404 (Mar. 15, 2022) 
(to be codified at 47 CFR part 73).
    10. As stated above, following the Petitioners' challenge to the 
Order, the D.C. Circuit vacated the fourth reasonable diligence 
requirement itemized above, leaving all other elements of the rules in 
place. The court held that the Commission lacked authority under 
section 317(c) of the Act to require licensees to review two federal 
government websites to ascertain a lessee's status. The D.C. Circuit 
stated that the ``reasonable diligence'' requirement contained in 
section 317(c) of the Act imposes on licensees only ``a duty of 
inquiry, not a duty of investigation.'' The court looked to prior 
precedent in asserting that ``Section 317(c) `is satisfied by 
appropriate inquiries made by the station to the party that pays it for 
the broadcast.' ''
    11. Before the Commission's Order was appealed, on July 19, 2021, 
the ABC Television Affiliates Association, CBS Television Network 
Affiliates Association, FBC Television Affiliates Association, and NBC 
Television Affiliates (collectively, ``the Affiliates'') filed a 
Petition for Clarification. The Affiliates asked us to clarify what 
constitutes ``traditional, short-form advertising,'' which we exempted 
from the foreign sponsorship identification requirements adopted in the 
Order. In their petition, the Affiliates recommended that the foreign 
sponsorship identification rules not apply when a licensee ``sells time 
to advertisers in the normal course of business, no matter the length 
of the advertisement.'' The petition resulted in just two responses 
from commenters, each requesting the Commission to clarify that all 
forms of advertising for commercial goods and services are not subject 
to the foreign sponsorship rules. The petition remains pending.

Discussion

A. Certification Requirement for the Foreign Sponsorship Identification 
Rules

    12. With this Second NPRM, we seek to strengthen the process 
supporting the foreign sponsorship identification rules in the wake of 
the D.C. Circuit's vacatur of the requirement that licensees search two 
government websites to verify a lessee's assertion that it is not a 
foreign governmental entity. As stated above, the foreign sponsorship 
identification rules require licensees to notify their lessees of the 
disclosure requirement pertaining to foreign government-provided 
programming at the time of entering into a lease agreement or at 
renewal of such an agreement. In addition, the licensee must inquire 
whether the lessee is a foreign governmental entity and if the lessee 
is aware of any individual/entity further back in the chain of 
production or distribution of the programming that may qualify as a 
foreign governmental entity and has provided compensation (including 
the programming itself, in the case of political programming or 
programming involving a controversial issue) as an inducement to air 
the programming. Finally, the licensee must memorialize these inquiries 
in writing and retain such documentation for a set time period. The 
rules do not, however,

[[Page 68963]]

establish a format for this memorialization.
    13. With the court's elimination of the obligation that a licensee 
verify the lessee's status independently using two federal government 
websites, the exchange between a licensee and lessee about the lessee's 
status takes on heightened importance in ensuring that the necessary 
disclosure is made, if needed. It is now even more imperative that the 
licensee inform any lessee in as clear a manner as possible about the 
foreign sponsorship identification rules and obtain a complete response 
in return regarding whether the lessee is, or is not, a foreign 
governmental entity or is aware of one further back in the chain that 
has produced/provided the programming in question.
    14. Accordingly, in this Second NPRM, we seek comment on 
establishing a transparent mechanism to determine whether the licensee 
made the requisite inquiries of each lessee and that each lessee 
responded in a complete manner regarding whether it qualifies as a 
foreign governmental entity (or is aware of one further back in the 
chain) pursuant to our rules. We tentatively conclude that the optimal 
mechanism for achieving this outcome is to require both licensee and 
lessee to certify their respective parts in this critical inquiry 
regarding the lessee's status and lessee's knowledge of any individual/
entity further back in the programming production or distribution chain 
who may qualify as a foreign governmental entity. Specifically, we 
propose that the licensee certify that it has made the appropriate 
inquiry of each lessee and sought a certification from the lessee 
regarding its status. Likewise, we propose that the lessee certify as 
to whether it is or is not a foreign governmental entity and whether it 
knows of any entity or individual further back in the programming 
production or distribution chain that qualifies as a foreign 
governmental entity and has provided some form of compensation, or, in 
some cases the programming itself, as an inducement to air the 
programming. In the case of political programming or programming 
concerning a controversial issue, provision of the programming itself 
as an inducement to air the programming triggers the disclosure 
requirement. We tentatively conclude that the proposed certification 
requirement for the licensee would subsume the licensee's duty to 
memorialize its inquiry of its lessee pursuant to Sec.  
73.1212(j)(3)(v) of the Commission's rules. We seek comment on our 
proposed rule and approach.
    15. As these certifications would formalize an inquiry process 
that, under our current foreign sponsorship identification rules, 
occurs at the time that parties either enter into or renew a lease 
agreement, we tentatively conclude that this certification process 
should occur at those same times. Further, we tentatively conclude that 
a certification, in particular one containing standardized language, as 
proposed below, provides the most efficient means of gauging a 
licensee's compliance with both the disclosure to a lessee of the 
foreign sponsorship identification rules and the request for lessee's 
certification. Likewise, a certification from the lessee provides 
increased assurance that it has taken the time to fully understand 
licensee's query and given due consideration to its own response. 
Moreover, the proposed certifications provide the Commission with a 
straightforward mechanism to monitor compliance with the inquiry 
requirements contained in the foreign sponsorship identification rules. 
It will also provide the information necessary for the Commission to 
independently confirm the certification, should an investigatory need 
arise. We seek comment on these tentative conclusions and our proposed 
approach of requiring certifications by the parties involved in a 
leasing agreement.
    16. We recognize that there may be rare instances in which a lessee 
declines to make the necessary certification or fails to submit the 
certification regarding its status to the licensee. We seek comment on 
whether, in these limited instances, the licensee's own certification 
is sufficient to demonstrate that the licensee has complied with its 
obligation to inform the lessee of the foreign sponsorship 
identification rules and to seek a certification from lessee. In these 
instances, should the licensee be permitted to move forward with the 
lease agreement, or has lessee's refusal to complete the certification 
as to its status raised sufficient questions about the involvement of a 
foreign governmental entity such that further action is required on the 
licensee's part? What additional actions, if any, could the licensee 
undertake consistent with section 317(c) of the Act to verify a 
lessee's status? In this regard, we note that Sec.  73.1212(e) of our 
rules requires the licensee to disclose the ``true identity of the 
person'' who has sponsored the programming. Would notifying the 
Commission about the lessee's failure to certify alleviate some of the 
concerns associated with lessee's lack of response? Absent such a 
response, if the licensee decides to proceed with the lease agreement, 
should we require the licensee to notify the Media Bureau, via a 
designated email box, about a lessee's failure to certify? Should such 
notification include the lessee's full name and contact information 
(such as address, email address, and/or telephone number)? Such a 
notification with the contact information could enable the Media 
Bureau, perhaps in conjunction with the Enforcement Bureau, to conduct 
its own inquiry regarding the lessee's status and whether the lessee 
has violated its obligations pursuant to section 507 of the Act. Would 
such a notification alleviate the licensee of its responsibility under 
Sec.  73.1212(e) of our rules to disclose the ``true identity of the 
person'' who has sponsored the programming?
    17. Submission of Certifications to the Commission. With regard to 
oversight, we tentatively conclude that submission of licensee and 
lessee certifications to the Commission provides an efficient and 
transparent means of verifying compliance with the certification 
requirement. Given that a licensee must already upload copies of its 
lease agreements to its online public inspection file (OPIF), and that 
this certification process will essentially occur at the time of 
entering into, or renewing a lease, we tentatively conclude that the 
licensee should upload both its own and the lessee's certifications 
into the same designated public inspection file subfolder in which it 
places its lease agreements. In addition, we tentatively conclude that 
such certifications should be conspicuous, clear, and arranged in such 
a manner that the parties' certifications are readily discernable. 
While we do not propose to require that the certifications be 
incorporated into a lease agreement itself, we observe that 
incorporation into the lease, or attachment as an appendix to the 
lease, could be the most efficient means of facilitating oversight and 
ensuring the certification process is completed. In this regard, we 
note that a number of broadcasters already incorporate into their 
leases provisions concerning compliance with various Commission 
requirements. We seek comment on this proposed approach for 
memorializing and submitting the certifications and our tentative 
conclusions outlined above.
    18. Further, we tentatively conclude that the transparency we seek 
regarding a licensee's inquiries of its lessee(s) depends, in part, 
upon the licensee placing the certifications into its public file in a 
timely manner. Thus, in accordance with current requirements

[[Page 68964]]

for licensees to place their lease agreements into their OPIFs within 
30 days of execution, we also propose that licensees place the 
certifications into their OPIFs within 30 days of execution. We expect 
that this filing period will impose minimal additional burden on 
licensees given that licensees should, under existing rules, be 
accustomed to placing copies of their agreements in their public file. 
Consistent with the guidance regarding lease agreements in the Order, 
for licensees that do not have obligations to maintain OPIFs, we 
propose that such licensees retain a record of the certifications in 
their station files within 30 days of execution. We seek comment on 
these proposals and proposed timing.
    19. Time Period for Retaining Certifications. We recognize there is 
a divergence between the time period for which licensees must retain 
their leases in their public file and the time period that licensees 
are required, under the foreign sponsorship identification rules, to 
maintain their documentation memorializing their inquiries of the 
lessee. Pursuant to Sec.  73.3526(e)(14) of our rules, a lease must be 
retained in the public file for as long as the agreement is in force; 
however, pursuant to Sec.  73.1212(j)(3)(v) of our rules, the licensee 
must retain its memorialization for the remainder of the then current 
license term or one year, whichever is longer. We propose above that 
the certification requirement set forth herein would replace the 
licensee's duty to memorialize its inquiries of the lessee and tie the 
documentation memorializing such inquiries more closely to the lease 
agreement itself (i.e., by requiring that the certifications be filed 
along with the lease in the public file). In the event that we adopt 
this proposal, we seek comment on whether to align the requirement to 
retain the certifications with the current time period mandated in 
Sec.  73.3526(e)(14) for retention of the lease in the public file 
(i.e., for the life of the lease agreement). We tentatively conclude 
that such an alignment would simplify compliance for licensees by 
conforming the time period for retaining a lease with the time period 
for retaining the licensee's documentation of its inquiries of the 
lessee.
    20. Application of Certification Requirements on a Prospective 
Basis. We recognize that beginning on March 15, 2022, licensees had to 
comply with the new foreign sponsorship identification rules with 
respect to new lease agreements and renewals. The Order, however, gave 
licensees an additional six months to bring existing lease agreements 
into compliance (i.e., by September 15, 2022). With respect to the 
certification requirement we propose today, we similarly propose to 
apply the requirement on a going forward basis with a six-month grace 
period for existing lease agreements to come into compliance. We seek 
comment on this proposal and on any alternative approaches.

B. Standardized Language To Be Included in Certification Requirement

    21. We tentatively conclude that establishing standardized 
certification language would both minimize the compliance burden on 
licensees and lessees and bring greater uniformity to the certification 
process. In this regard, we note that, in previous filings in this 
proceeding, certain broadcaster groups had asserted that ``they would 
have to expend extensive time and resources to alter their lease 
agreements so as to obtain certifications from lessees regarding their 
status.'' The establishment of standardized certification language 
would eviscerate any need for licenses or lessees to seek outside 
assistance in crafting or reviewing certifications. Licensees and 
lessees can cut and paste the standardized certification language into 
the relevant documents and fill in simple details, such as the name of 
the licensee or lessee, whether the lessee is or is not a foreign 
governmental entity, and the name of any foreign governmental entity 
further back in the programming chain. Accordingly, we tentatively 
conclude that the adoption of standardized certification language 
should reduce any time and cost licensees have to expend on compliance.
    22. Proposed Licensee Certification. We propose that broadcast 
licensees use the following standardized language when making the 
required certifications:
    I am authorized on behalf of [Licensee] to certify the following: I 
certify that in accordance with 47 CFR 73.1212(j), [Licensee] has:
    (1) Informed [Lessee] at the time of [entering into OR renewal of] 
this agreement of the foreign sponsorship disclosure requirement 
contained in 47 CFR 73.1212(j);
    (2) Inquired of [Lessee] at the time of [entering into OR renewal 
of] this agreement whether [Lessee] falls into any of the categories 
listed in the Federal Communications Commission's (FCC) rules at 47 CFR 
73.1212(j) such that the [Lessee] qualifies as a ``foreign governmental 
entity,'';
    The FCC's rules state that term ``foreign governmental entity'' 
includes a ``government of a foreign country,'' ``foreign political 
party,'' an ``agent of a foreign principal,'' and a ``United States-
based foreign media outlet.'' 47 CFR 73.1212(j)(2). The FCC's rules, at 
47 CFR 73.1212(j)(2)(i) through (iv), define these terms in the 
following manner:
    (i) The term ``government of a foreign country'' has the meaning 
given such term in the Foreign Agents Registration Act of 1938 (FARA), 
22 U.S.C. 611(e);
    (ii) The term ``foreign political party'' has the meaning given 
such term in the Foreign Agents Registration Act of 1938 (FARA), 22 
U.S.C. 611(f);
    (iii) The term ``agent of a foreign principal'' has the meaning 
given such term in the Foreign Agents Registration Act of 1938 (22 
U.S.C. 611(c)), and who is registered as such with the Department of 
Justice, and whose ``foreign principal'' is a ``government of a foreign 
country,'' a ``foreign political party,'' or directly or indirectly 
operated, supervised, directed, owned, controlled, financed, or 
subsidized by a ``government of a foreign country'' or a ``foreign 
political party'' as defined in Sec.  73.1212(j)(2)(i) and (ii), and 
that is acting in its capacity as an agent of such ``foreign 
principal;''
    (iv) The term ``United States-based foreign media outlet'' has the 
meaning given such term in Section 722(a) of the Communications Act of 
1934 (47 U.S.C. 624(a)).
    (3) Inquired of [Lessee] at the time of [entering into OR renewal 
of] this agreement whether it knows if any individual/entity in the 
chain of producing or distributing the programming that will be aired 
pursuant to the lease agreement, or a sub-lease, qualifies as a 
``foreign governmental entity,'' as that term is defined above, and has 
provided some type of inducement to air the programming, including, in 
the case of political programming or programming involving the 
discussion of a controversial issue, the programming itself;
    (4) Sought and obtained from [Lessee] a certification stating that 
[Lessee] [is OR is not] a ``foreign governmental entity,'' as that term 
is defined above;
    (5) Sought and obtained from [Lessee] a certification about whether 
it knows if any individual/entity in the chain of producing or 
distributing the programming that will be aired pursuant to the lease 
agreement, or a sub-lease, qualifies as a ``foreign governmental 
entity,'' as that term is defined above, and has provided some type of 
inducement to air the programming, including, in the case of political 
programming or programming involving the discussion of a controversial 
issue, the programming itself; and
    (6) If [Lessee] qualifies, or knows of an individual/entity further 
back in the

[[Page 68965]]

chain of producing and distributing the programming that qualifies, as 
a ``foreign governmental entity,'' as defined above, then [Licensee] 
obtained from [Lessee] the information needed to append the following 
disclosure to lessee's programming consistent with 47 CFR 
73.1212(j)(1)(i):
    ``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].''
    I, [insert name of person/entity authorized to certify on behalf of 
Licensee] by my signature attest to the truth of the statements listed 
above.
    23. Proposed Lessee Certification. We propose that lessees use the 
following language when making the required certifications:
    I am authorized on behalf of [Lessee] to certify to the following:
    (1) [Licensee] has informed [Lessee] at the time of [entering into 
OR renewal of] this agreement of the foreign sponsorship disclosure 
requirement contained in 47 CFR 73.1212(j);
    (2) [Licensee] has inquired of [Lessee] at the time of [entering 
into OR renewal of] this agreement whether [Lessee] falls into any of 
the categories listed in the Federal Communications Commission's (FCC) 
rules at 47 CFR 73.1212(j) such that the [Lessee] qualifies as a 
``foreign governmental entity,'';
    The FCC's rules state that term ``foreign governmental entity'' 
includes a ``government of a foreign country,'' ``foreign political 
party,'' an ``agent of a foreign principal,'' and a ``United States-
based foreign media outlet.'' 47 CFR 73.1212(j)(2). The FCC's rules, at 
47 CFR 73.1212(j)(2)(i) through (iv), defines these terms in the 
following manner:
    (i) The term ``government of a foreign country'' has the meaning 
given such term in the Foreign Agents Registration Act of 1938 (FARA), 
22 U.S.C. 611(e);
    (ii) The term ``foreign political party'' has the meaning given 
such term in the Foreign Agents Registration Act of 1938 (FARA), 22 
U.S.C. 611(f);
    (iii) The term ``agent of a foreign principal'' has the meaning 
given such term in the Foreign Agents Registration Act of 1938 (22 
U.S.C. 611(c)), and who is registered as such with the Department of 
Justice, and whose ``foreign principal'' is a ``government of a foreign 
country,'' a ``foreign political party,'' or directly or indirectly 
operated, supervised, directed, owned, controlled, financed, or 
subsidized by a ``government of a foreign country'' or a ``foreign 
political party'' as defined in Sec.  73.1212(j)(2)(i) and (ii), and 
that is acting in its capacity as an agent of such ``foreign 
principal;''
    (iv) The term ``United States-based foreign media outlet'' has the 
meaning given such term in Section 722(a) of the Communications Act of 
1934 (47 U.S.C. 624(a)).
    (3) [Licensee] has inquired of [Lessee] at the time of [entering 
into OR renewal of] this agreement whether [Lessee] knows if any 
individual/entity further back in the chain of producing or 
distributing the programming that will be aired pursuant to the lease 
agreement, or a sub-lease, qualifies as a ``foreign governmental 
entity,'' as that term is defined above, and has provided some type of 
inducement to air the programming, including, in the case of political 
programming or programming involving the discussion of a controversial 
issue, the programming itself;
    (4) [Lessee] certifies that it [is OR is not] a ``foreign 
governmental entity,'' as that term is defined above;
    (5) If applicable: [Lessee] certifies that to its knowledge 
[Individual/Entity] qualifies as a ``foreign governmental entity,'' as 
that term is defined above, and has provided some type of inducement to 
air the programming, including, in the case of political programming or 
programming involving the discussion of a controversial issue, the 
programming itself;
    (6) If applicable: [Lessee] certifies that to its knowledge there 
is no individual/entity further back in the chain of producing or 
distributing the programming that will be aired pursuant to the lease 
agreement, or sub-lease, that qualifies as a ``foreign governmental 
entity,'' as that term is defined above, and has provided some type of 
inducement to air the programming, including, in the case of political 
programming or programming involving the discussion of a controversial 
issue, the programming itself;
    (7) If applicable: [Lessee] certifies that to its knowledge there 
is an individual/entity further back in the chain of producing or 
distributing the programming that will be aired pursuant to the lease 
agreement, or sub-lease, that qualifies as a ``foreign governmental 
entity,'' as that term is defined above, and has provided some type of 
inducement to air the programming, including, in the case of political 
programming or programming involving the discussion of a controversial 
issue, the programming itself. The name, address, phone number, and 
email address, if known, of such individual/entity is [individual/
entity name, address, phone number, and email address, if known];
    (8) To the extent applicable, [Lessee] has provided [Licensee] the 
information needed to append the following disclosure to lessee's 
programming consistent with the FCC's rules, found at 47 CFR 
73.1212(j)(1)(i):
    ``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].''
    (9) [Lessee] certifies that during the course of the lease 
agreement, [Lessee] commits to notify [Licensee] if [Lessee's] status 
as a ``foreign governmental entity'' changes or if [Lessee] learns that 
there is an individual/entity further back in the chain of producing or 
distributing the programming that will be aired pursuant to the lease 
agreement, or sub-lease, that qualifies as a ``foreign governmental 
entity,'' as that term is defined above, and has provided some type of 
inducement to air the programming, including, in the case of political 
programming or programming involving the discussion of a controversial 
issue, the programming itself.
    I, [insert name of individual/entity authorized to certify on 
behalf of Lessee] by my signature attest to the truth of the statements 
listed above.
    24. We seek comment both on the utility of providing standardized 
language for licensees and lessees to use for their respective 
certifications and on the specific language laid out above. Should the 
standard certification language be modified in any way to better suit 
the needs of licensees or lessees, including licensees and lessees that 
are small entities?

C. Section 325(c) Permits

    25. A section 325(c) permit is required when an entity produces 
programming in the United States but, rather than broadcasting the 
programming from a U.S.-licensed station, transmits or delivers the 
programming from a U.S. studio to a non-U.S. licensed station in a 
foreign country for broadcast by the foreign station into the United 
States. Given the nature of the section 325(c) permits, pursuant to 
Sec.  73.1212(k) of the Commission rules, the foreign sponsorship 
identification disclosure requirements apply to any programming 
permitted to be delivered to foreign broadcast stations under an 
authorization pursuant to section 325(c) of the Act if the material has 
been (i) sponsored by a foreign governmental entity; (ii) paid for by a 
foreign governmental entity; (iii) furnished for free by a foreign 
governmental entity to the section 325(c) permit holder as an

[[Page 68966]]

inducement to air the material on the foreign station; or (iv) provided 
by the section 325(c) permit holder to the foreign station where the 
section 325(c) permit holder is a foreign governmental entity. Where 
the section 325(c) permit holder itself is a foreign governmental 
entity, the disclosure requirements apply to all programming provided 
by the permit holder to a foreign station.
    26. In proposing Sec.  73.1212(k), the Commission noted that 
applying foreign sponsorship identification disclosures to programs 
permitted to be delivered to foreign broadcast stations under an 
authorization pursuant to section 325(c) of the Act would level the 
playing field between programming aired by non-U.S. and U.S. 
broadcasters in the same geographic area within the United States and 
would eliminate any potential loophole in our regulatory framework with 
respect to the identification of foreign government-provided 
programming that may result from this proceeding. Under Sec.  
73.1212(j), if a content provider, including one that also holds a 
section 325(c) permit, meets the definition of foreign governmental 
entity and provides its content to a U.S. broadcaster under a lease 
agreement, its content is subject to foreign sponsorship identification 
disclosures. If such a content provider provides the same content to a 
foreign broadcast station under its section 325(c) permit, such content 
also is subject to foreign sponsorship identification disclosures. The 
disclosure requirements in that situation apply to materials permitted 
to be delivered to a foreign broadcast station under an authorization 
pursuant to section 325(c) of the Act regardless of the nature of the 
arrangement, if any, between the permit holder and the foreign 
broadcast station. In the context of section 325(c) permits, leasing of 
airtime is not a relevant prerequisite for application of the foreign 
sponsorship identification rules because section 325(c) permit holders' 
foreign broadcast arrangements can be struck in various ways, not just 
through leasing of airtime, under the laws of foreign countries. In 
this context, our rules ensure that no material provided by a permit 
holder that is a foreign governmental entity is broadcast into the 
United States through the use of section 325(c) permits without the 
appropriate disclosures. To provide greater clarity regarding the 
application of these disclosure requirements in the context of 
programming subject to a section 325(c) permit, we propose to modify 
Sec.  73.1212(k) as shown in Appendix A. Pending a determination as to 
whether the proposed due diligence modifications to 47 CFR 73.1212(j) 
should apply to section 325(c) permittees, our proposed revisions to 
subsection (k) reflect the subsection (j) duty to memorialize due 
diligence efforts.
    27. We expect that a section 325(c) permit holder would have direct 
knowledge of whether it is a foreign governmental entity as that term 
is defined in Sec.  73.1212(j) of the rules and whether disclosures are 
required on that basis. However, even if a permit holder is not itself 
a foreign governmental entity, the disclosure requirements apply to any 
part of its programming that is sponsored, paid for, or furnished for 
free by a foreign governmental entity either directly to the permit 
holder or to an entity farther back in the content production chain. We 
seek comment on whether there is a need to apply any due diligence 
requirements proposed in this Second NPRM to any programming permitted 
to be delivered to a foreign station pursuant to a section 325(c) 
permit and, if applicable, whether the proposed certifications or other 
due diligence documentation should be placed in the IBFS by section 
325(c) permit holders and for how long.

D. Proposed Certification Requirement Is Consistent With the Act and 
NAB v. FCC

    28. We tentatively conclude that the certification requirements we 
propose above are consistent with both the Act and the court's decision 
in NAB v. FCC. Section 317(c) of the Act states that the licensee of 
each radio station shall exercise reasonable diligence to obtain from 
its employees, and from other persons with whom it deals directly in 
connection with any program or program matter for broadcast, 
information to enable such licensee to make the announcement required 
by this section. Section 317(e), in turn, directs the Commission to 
prescribe appropriate rules and regulations to carry out the provisions 
of section 317. We tentatively conclude that sections 317(c) and (e) 
together provide ample authority to implement our proposed requirement 
that a licensee make inquiries of a lessee in the form of a 
certification and seek a lessee's response in the form of a reciprocal 
certification. We tentatively conclude that such an inquiry requirement 
for the licensee is entirely consistent with its statutory reasonable 
diligence obligation to discern the lessee's status as a ``foreign 
governmental entity'' and what the lessee knows about those further 
back in the chain of producing and distributing the programming. The 
licensee must ask these questions of lessee to obtain the information 
needed ``to enable such licensee to make the announcement required by 
[section 317(c)].'' We seek comment on these tentative conclusions.
    29. Consistent with the court's holding that section 317(c) imposes 
only a duty of inquiry for licensees, rather than a duty to investigate 
and verify, the proposal contained in this Second NPRM merely requires 
licensees to certify to inquiries they must already undertake pursuant 
to the existing foreign sponsorship identification rules and formalizes 
the existing requirement to memorialize such inquiries. Accordingly, we 
tentatively conclude that our proposed certification requirements are 
consistent with the D.C. Circuit's vacatur of the prior requirement 
that a licensee independently verify whether a lessee is a ``foreign 
governmental entity'' by consulting two federal government sources. The 
court did not question the Commission's authority to require inquiries 
and memorialize responses, as we propose to do more formally today. 
Further, the proposed certification requirements do not require, or 
have the effect of requiring, licensees to engage in any 
``investigation'' regarding the lessee's status nor to consult with any 
person or source other than that with whom it deals directly, namely, 
the lessee. We seek comment on these tentative conclusions.
    30. With regard to the lessee specifically, we note that sections 
507(b)-(c) impose an obligation on the lessee to disclose information 
relevant to determining whether a sponsorship identification is 
required. Section 507(c) states that any person who supplies to any 
other person program or program matter which is intended for 
broadcasting over any radio station shall, in advance of such 
broadcast, disclose to such other person any information of which he 
has knowledge, or which has been disclosed to him, as to any money, 
service or other valuable consideration which any person has paid or 
accepted, or has agreed to pay or accept, for the inclusion of any 
matter as a part of such program. As the individual/entity providing 
the programming to the licensee, the lessee is subject to the 
strictures of section 507(c). Likewise, section 507(b) imposes the same 
obligations on those involved in the production or preparation of 
programming and would similarly apply to the lessee if the lessee were 
involved in the production or preparation of the programming. The 
significance of lessee's transmission of relevant information is 
highlighted by the fact that section 317(b) of the Act requires

[[Page 68967]]

the licensee to take note of information received pursuant to the 
section 507 disclosure requirement. We seek comment on the analysis 
laid out above with regard to section 507 of the Act.

E. Alternative Approach

    31. We also seek comment on an alternative approach raised by the 
D.C. Circuit. At oral argument, the court asked whether it would be 
consistent with the Act and accomplish the same goal as the requirement 
that the court ultimately vacated to instead require a licensee to ask 
its lessee to provide the licensee with appropriate documentation 
(e.g., the relevant FARA page showing that its sponsors are not listed 
there). In accord with the court's question, would it be consistent 
with the Commission's authority under section 317 to define licensees' 
reasonable diligence obligation by requiring them to seek or obtain 
such proof from lessees (e.g., by a screen shot)? Should a licensee 
have to seek or obtain from its lessee proof that the lessee's name 
does not appear in either the FARA database or the Commission's U.S.-
based foreign media outlet reports? Would this approach accomplish the 
same purpose as the vacated rule requirement? What would be the burdens 
of this approach on licensees and lessees? Would it have any benefits 
or drawbacks as compared to requiring the licensee to obtain a 
certification from the lessee?

F. Petition for Clarification

    32. As stated above, on July 19, 2021, the Affiliates filed a 
Petition for Clarification regarding the meaning of the phrase 
``traditional, short-form advertising'' as it appeared in the Order. In 
their Petition, the Affiliates seek a clarification that the foreign 
sponsorship identification rules, and in particular the inquiries 
associated with these rules, do not apply when a station ``sells time 
to advertisers in the normal course of business,'' in contrast to when 
it leases airtime on the station. According to the Affiliates, the 
reference to ``traditional short-form advertising'' as an exception to 
the foreign sponsorship identification requirements has caused 
confusion amongst the Affiliates' members about what type of 
programming arrangements are subject to the requirements. As stated, 
the Affiliates' Petition generated minimal response. We seek comment on 
whether experience with these rules has provided licensees or others 
with additional insight regarding the issues raised in the Petition and 
specifically what criteria the Commission might adopt to distinguish 
between advertising and programming arrangements for the lease of 
airtime in a way that does not jeopardize the Commission's goals in 
this proceeding. For example, we seek comment on whether there are key 
characteristics that could assist in distinguishing advertising spots 
from a lease of airtime on a station, such as duration, content, 
editorial control, or differences in the nature of the contractual 
relationship between the licensee and the entity that purchases an 
advertising spot versus leasing airtime for programming. What criteria 
might we adopt to ensure that the concept of ``advertising'' does not 
subsume ``leased time'' or vice versa? Might the establishment of a 
safe harbor assist in this regard? For example, could we establish a 
presumption that any broadcast matter that is two minutes or less in 
length, absent any other indicia, will be considered ``short-form 
advertising'' for purposes of the foreign sponsorship identification 
rules?

G. Digital Equity and Inclusion

    33. Finally, the Commission, as part of its continuing effort to 
advance digital equity for all, including people of color, persons with 
disabilities, persons who live in rural or Tribal areas, and others who 
are or have been historically underserved, marginalized, or adversely 
affected by persistent poverty or inequality, invites comment on any 
equity-related considerations and benefits (if any) that may be 
associated with the proposals and issues discussed herein. 
Specifically, we seek comment on how our proposals may promote or 
inhibit advances in diversity, equity, inclusion, and accessibility, as 
well the scope of the Commission's relevant legal authority.

Procedural Matters

    34. Ex Parte Rules--Permit-But-Disclose. This proceeding shall be 
treated as a ``permit-but-disclose'' proceeding in accordance with the 
Commission's ex parte rules. Persons making ex parte presentations must 
file a copy of any written presentation or a memorandum summarizing any 
oral presentation within two business days after the presentation 
(unless a different deadline applicable to the Sunshine period 
applies). Persons making oral ex parte presentations are reminded that 
memoranda summarizing the presentation must (1) list all persons 
attending or otherwise participating in the meeting at which the ex 
parte presentation was made, and (2) summarize all data presented and 
arguments made during the presentation. If the presentation consisted 
in whole or in part of the presentation of data or arguments already 
reflected in the presenter's written comments, memoranda, or other 
filings in the proceeding, the presenter may provide citations to such 
data or arguments in his or her prior comments, memoranda, or other 
filings (specifying the relevant page and/or paragraph numbers where 
such data or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written in ex parte presentations and 
must be filed consistent with rule 1.1206(b). In proceedings governed 
by rule 1.49(f) or for which the Commission has made available a method 
of electronic filing, written ex parte presentations and memoranda 
summarizing oral ex parte presentations, and all attachments thereto, 
must be filed through the electronic comment filing system available 
for that proceeding, and must be filed in their native format (e.g., 
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding 
should familiarize themselves with the Commission's ex parte rules.
    35. Filing Requirements--Comments and Replies. Pursuant to 
Sec. Sec.  1.415 and 1.419 of the Commission's rules, 47 CFR 1.1415, 
1.419, interested parties may file comments and reply comments on or 
before the dates indicated on the first page of this document. Comments 
may be filed using the Commission's Electronic Comment Filing System 
(ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 
63 FR 24121 (1998).
    36. Initial Regulatory Flexibility Act Analysis. The Regulatory 
Flexibility Act of 1980, as amended (RFA), requires that a regulatory 
flexibility analysis be prepared for notice and comment rulemaking 
proceedings, unless the agency certifies that ``the rule will not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.'' The RFA generally defines the term ``small 
entity'' as having the same meaning as the terms ``small business,'' 
``small organization,'' and ``small governmental jurisdiction.'' In 
addition, the term ``small business'' has the same meaning as the term 
``small business concern'' under the Small Business Act. A ``small 
business concern'' is one which: (1) is independently owned and 
operated; (2) is not dominated in its field of operations; and (3) 
satisfies any additional criteria established by the Small Business 
Administration (SBA).
    37. With respect to this Second Notice of Proposed Rulemaking, an 
Initial Regulatory Flexibility Analysis (IRFA)

[[Page 68968]]

under the RFA is contained in the Appendix. Written public comments are 
required on the IRFA and must be filed in accordance with the same 
filing deadlines as comments on this Notice of Proposed Rulemaking, 
with a distinct heading designating them as responses to the IRFA. In 
addition, a copy of this Notice of Proposed Rulemaking and the IRFA 
will be sent to the Chief Counsel for Advocacy of the SBA and will be 
published in the Federal Register.
    38. Paperwork Reduction Act. This document seeks comment on whether 
the Commission should adopt new information collection requirements. 
The Commission, as part of its continuing effort to reduce paperwork 
burdens and pursuant to the Paperwork Reduction Act of 1995, Public Law 
104-13, invites the general public and the Office of Management and 
Budget (OMB) to comment on these information collection requirements. 
In addition, pursuant to the Small Business Paperwork Relief Act of 
2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific 
comment on how we might further reduce the information collection 
burden for small business concerns with fewer than 25 employees.

Initial Regulatory Flexibility Act Analysis

    39. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on small entities of the policies and rules proposed in this Second 
Notice of Proposed Rulemaking (Second NPRM). The Commission requests 
written public comments on this IRFA. Comments must be identified as 
responses to the IRFA and must be filed by the deadlines for comments 
specified in the Second NPRM. The Commission will send a copy of the 
Second NPRM, including this IRFA, to the Chief Counsel for Advocacy of 
the Small Business Administration (SBA). In addition, the Second NPRM 
and IRFA (or summaries thereof) will be published in the Federal 
Register.

A. Need for, and Objectives of, the Proposed Rules

    40. On April 22, 2021, the Commission released a Report and Order 
adopting a requirement that radio and television stations broadcast 
clear disclosures for programming that is provided by a foreign 
governmental entity and setting forth the procedures whereby stations 
must exercise reasonable diligence to determine whether such a 
disclosure is required. The Commission promulgated these foreign 
sponsorship identification rules in response to reports of undisclosed 
foreign government programming being transmitted by U.S. broadcast 
stations. The Commission's rules established a definition of ``foreign 
governmental entity'' based on existing definitions, statutes, or 
determinations by the U.S. government. The Commission's requirements 
apply to leased programming because the record in the underlying 
proceeding identified leased airtime as the primary means by which 
foreign governmental entities are accessing U.S. airwaves to persuade 
the American public without adequately disclosing the true sponsor. The 
Commission promulgated the foreign sponsorship identification rules 
based on a fundamental and long-standing tenet of broadcast regulation; 
namely, that the public has a right to know the identity of those 
soliciting their support.
    41. On August 13, 2021, the National Association of Broadcasters 
(NAB) and two public interest groups (collectively, ``Petitioners'') 
filed a Petition for Review of the Commission's Order with the U.S. 
Court of Appeals for the District of Columbia Circuit challenging the 
Commission's reasonable diligence requirements, alleging that the 
Commission lacked statutory authority to adopt such requirements. On 
July 12, 2022, the D.C. Circuit ruled on the Petition for Review, 
upholding the core of the foreign sponsorship identification rules but 
vacating the requirement that broadcasters check two federal sources to 
verify whether a lessee is a ``foreign governmental entity,'' as that 
term is defined in the Commission's rules.
    42. The Second Notice of Proposed Rulemaking (Second NPRM) seeks to 
fortify the Commission's rules in the wake of the court's decision by 
proposing that, in order to comply with the ``reasonable diligence'' 
requirement regarding foreign sponsorship identification, a licensee 
must certify that it has informed its lessee of the foreign sponsorship 
identification rules and sought, or obtained, a certification from its 
lessee stating whether the lessee is or is not a foreign governmental 
entity pursuant to the rules. The Second NPRM also proposes that the 
lessee submit a certification in response to licensee's request. These 
new certification requirements would subsume the duty of licensees 
under Sec.  73.1212(j)(3)(v) of our rules to memorialize and retain 
their reasonable diligence inquiries. The Second NPRM also seeks 
comment on an alternative approach to the certification requirement. 
This alternative approach was raised as a hypothetical during the oral 
argument before the D.C. Circuit in NAB v. FCC. Under this approach, in 
the event that a lessee states it is not a ``foreign governmental 
entity'' a licensee must obtain from the lessee appropriate 
documentation (e.g., a screen shot(s)) showing that the lessee's name 
does not appear on either of the two federal government websites which 
the Commission identified in the Order as reference points for 
determining whether a given individual/entity is a ``foreign 
governmental entity.'' Finally, the Second NPRM provides interested 
parties an additional opportunity to comment on a pending Petition for 
Clarification regarding the applicability of the foreign sponsorship 
identification rules to broadcast stations when they sell time to 
advertisers in the normal course of business.

B. Legal Basis

    43. The proposed action is authorized under sections 1, 2, 4(i), 
4(j), 303(r), 307, 317, 325(c), 403, and 507 of the Communications Act 
of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 303(r), 307, 
317, 325(c), 403, and 508.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    44. The RFA directs agencies to provide a description of, and where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rule revisions, if adopted. The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small business concern'' under the 
Small Business Act (SBA). A small business concern is one which: (1) is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
SBA. Below, we provide a description of such small entities, as well as 
an estimate of the number of such small entities, where feasible.
    45. Television Broadcasting. This industry is comprised of 
``establishments primarily engaged in broadcasting images together with 
sound.'' These establishments operate television broadcast studios and 
facilities for the programming and transmission of programs to the 
public. These establishments also produce or transmit visual 
programming to affiliated broadcast television stations, which in turn 
broadcast the programs to the public on a predetermined schedule.

[[Page 68969]]

Programming may originate in their own studio, from an affiliated 
network, or from external sources. The SBA small business size standard 
for this industry classifies businesses having $41.5 million or less in 
annual receipts as small. 2017 U.S. Census Bureau data indicate that 
744 firms in this industry operated for the entire year. Of that 
number, 657 firms had revenue of less than $25,000,000. Based on this 
data we estimate that the majority of television broadcasters are small 
entities under the SBA small business size standard.
    46. As of June 2022, there were 1,373 licensed commercial 
television stations. Of this total, 1,280 stations (or 93.2%) had 
revenues of $41.5 million or less in 2021, according to Commission 
staff review of the BIA Kelsey Inc. Media Access Pro Television 
Database (BIA) on June 1, 2022, and therefore these licensees qualify 
as small entities under the SBA definition. In addition, the Commission 
estimates as of June 2022, there were 384 licensed noncommercial 
educational (NCE) television stations, 383 Class A TV stations, 1,865 
LPTV stations and 3,224 TV translator stations. The Commission, 
however, does not compile and otherwise does not have access to 
financial information for these television broadcast stations that 
would permit it to determine how many of these stations qualify as 
small entities under the SBA small business size standard. 
Nevertheless, given the SBA's large annual receipts threshold for this 
industry and the nature of these television station licensees, we 
presume that all of these entities qualify as small entities under the 
above SBA small business size standard.
    47. Radio Broadcasting. This industry is comprised of 
``establishments primarily engaged in broadcasting aural programs by 
radio to the public.'' Programming may originate in their own studio, 
from an affiliated network, or from external sources. The SBA small 
business size standard for this industry classifies firms having $41.5 
million or less in annual receipts as small. U.S. Census Bureau data 
for 2017 show that 2,963 firms operated in this industry during that 
year. Of this number, 1,879 firms operated with revenue of less than 
$25 million per year. Based on this data and the SBA's small business 
size standard, we estimate a majority of such entities are small 
entities.
    48. The Commission estimates that as of June 30, 2022, there were 
4,498 licensed commercial AM radio stations and 6,689 licensed 
commercial FM radio stations, for a combined total of 11,187 commercial 
radio stations. Of this total, 11,185 stations (or 99.98%) had revenues 
of $41.5 million or less in 2021, according to Commission staff review 
of the BIA Kelsey Inc. Media Access Pro Database (BIA) on June 1, 2022, 
and therefore these licensees qualify as small entities under the SBA 
definition. In addition, the Commission estimates that as of June 30, 
2022, there were 4,184 licensed noncommercial (NCE) FM radio stations, 
2,034 low power FM (LPFM) stations, and 8,951 FM translators and 
boosters. The Commission however does not compile, and otherwise does 
not have access to financial information for these radio stations that 
would permit it to determine how many of these stations qualify as 
small entities under the SBA small business size standard. 
Nevertheless, given the SBA's large annual receipts threshold for this 
industry and the nature of these radio station licensees, we presume 
that all of these entities qualify as small entities under the above 
SBA small business size standard.
    49. We note, however, that in assessing whether a business concern 
qualifies as ``small'' under the above definition, business (control) 
affiliations must be included. Our estimate, therefore, likely 
overstates the number of small entities that might be affected by our 
action, because the revenue figure on which it is based does not 
include or aggregate revenues from affiliated companies. In addition, 
another element of the definition of ``small business'' requires that 
an entity not be dominant in its field of operation. We are unable at 
this time to define or quantify the criteria that would establish 
whether a specific radio or television broadcast station is dominant in 
its field of operation. Accordingly, the estimate of small businesses 
to which the rules may apply does not exclude any radio or television 
station from the definition of a small business on this basis and is 
therefore possibly over-inclusive. An additional element of the 
definition of ``small business'' is that the entity must be 
independently owned and operated. Because it is difficult to assess 
these criteria in the context of media entities, the estimate of small 
businesses to which the rules may apply does not exclude any radio or 
television station from the definition of a small business on this 
basis and similarly may be over-inclusive.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    50. The Order had established certain requirements that licensees 
had to meet to comply with the ``reasonable diligence'' standard of 
section 317(c) of the Act, with regard to foreign government-provided 
programming. Specifically, pursuant to the Order, a licensee had to, at 
a minimum:
    (1) Inform the lessee at the time of agreement and at renewal of 
the foreign sponsorship disclosure requirement;
    (2) Inquire of the lessee at the time of agreement and at renewal 
whether it falls into any of the categories that qualify it as a 
``foreign governmental entity;''
    (3) Inquire of the lessee at the time of agreement and at renewal 
whether it knows if anyone further back in the chain of producing/
distributing the programming that will be aired pursuant to the lease 
agreement, or a sub-lease, qualifies as a foreign governmental entity 
and has provided some type of inducement to air the programming;
    (4) Independently confirm the lessee's status, at the time of 
agreement and at renewal by consulting the Department of Justice's FARA 
website and the Commission's semi-annual U.S.-based foreign media 
outlets reports for the lessee's name. This need not be done if the 
lessee has already disclosed that it falls into one of the covered 
categories and/or that there is a separate need for a disclosure 
because an entity/individual further back in the chain of producing/
transmitting the programming falls into one of the covered categories 
and has provided some form of service, consideration, or, in the case 
of political programming the programming itself, as an inducement to 
broadcast the programming; and
    (5) Memorialize the above-listed inquiries and investigations and 
retain such memorialization in its records for the remainder of the 
then current license term or one year, whichever is longer.
    51. Following the Petitioners' challenge to the Order, the D.C. 
Circuit decision vacated the fourth reasonable diligence requirement 
itemized above, leaving all other elements of the Commission's rules in 
place. The Second NPRM seeks to fortify the rules in the wake of the 
court's decision by proposing that a licensee must certify it has 
informed its lessee of the foreign sponsorship identification rules and 
obtained, or sought to obtain, a certification from its lessee stating 
whether the lessee is or is not a ``foreign governmental entity,'' as 
that term is defined in the Commission's rules. The Second NPRM also 
proposes that the lessee submit a certification in response to the 
licensee's request. These new certification requirements, if adopted by 
the Commission, would replace the duty of a licensee, as laid out above 
in items (1), (2), and (3) to inquire of its lessee whether it, or 
anyone further back in the

[[Page 68970]]

chain of distributing/producing the programming, qualifies as a 
``foreign governmental entity,'' and has provided some type of 
inducement (e.g., compensation) to air the programming, including, in 
the case of political programming or programming involving the 
discussion of a controversial issue, the programming itself. The 
proposed certifications themselves would replace the memorialization 
requirement contained in item (5) above.
    52. The Second NPRM recognizes that there may be rare instances in 
which a lessee declines to make the necessary certification or fails to 
submit the certification regarding its status to the licensee. The 
Second NPRM seeks comment on whether, in these limited instances, the 
licensee's own certification is sufficient to demonstrate that the 
licensee has complied with its obligation to inform the lessee of the 
foreign sponsorship identification rules and to seek a certification 
from lessee. The Second NPRM asks whether requiring the licensee to 
notify the Commission about lessee's failure to certify would alleviate 
some of the concerns associated with lessee's lack of response. In the 
event that the licensee decides to proceed with the lease agreement, 
the Second NPRM seeks comment on whether to require the licensee to 
notify the Commission's Media Bureau, via a designated email box, about 
a lessee's failure to certify along with the lessee's full name and 
contact information (such as address, email address, and/or telephone 
number).
    53. Submission of Certifications to the Commission. The Second NPRM 
tentatively concludes that submission of licensee's and lessee's 
certifications to the Commission provides an efficient and transparent 
means of verifying compliance with the certification requirement. Given 
that a licensee must already upload copies of its lease agreements to 
its online public inspection file (OPIF), and that this certification 
process will essentially occur at the time of entering into, or 
renewing a lease, the Second NPRM tentatively concludes that the 
licensee should upload both its own and the lessee's certifications 
into the same public inspection file in which it places its lease 
agreements. While the Second NPRM does not propose to require that the 
certifications be incorporated into the lease agreement, it notes that 
incorporation into the lease, or attachment as an appendix to the 
lease, could be the most efficient means of ensuring the certification 
process is completed. The Second NPRM notes that a number of 
broadcasters already incorporate into their leases provisions 
concerning compliance with various Commission requirements.
    54. In accordance with the current requirements for licensees to 
place their lease agreements into their OPIFs within 30 days of 
execution, the Second NPRM proposes that licensees place the 
certifications into their OPIFs within 30 days of execution. This 
filing period will impose minimal additional burden on licensees given 
that licensees should, under existing rules, be accustomed to placing 
copies of their agreements in their public files. For licensees that do 
not have obligations to maintain OPIFs, the Second NPRM proposes that 
such licensees retain a record of the certifications in their station 
files within 30 days of execution.
    55. Time Period for Retaining Certifications. The Second NPRM 
proposes to align the time period for retaining the certifications with 
the current time period for retaining lease agreements in the 
licensees' OPIFs. Specifically, the Second NPRM proposes that, just as 
a licensee must retain its lease agreement in the public file for as 
long as the agreement is in force, the certifications should also be 
retained for this same time period. The Second NPRM tentatively 
concludes that such an alignment will simplify compliance for licensees 
by conforming the time period for retaining a lease with the time 
period for retaining the licensee's documentation of its inquiries of 
the lessee.
    56. Standardized Language to be Included in Certification 
Requirement. The Second NPRM tentatively concludes that establishing 
standardized certification language would both minimize the compliance 
burden on licensees and lessees and bring greater uniformity to the 
certification process. In this regard, the Second NPRM notes that, in 
previous filings in this proceeding, certain broadcaster groups had 
asserted that they would have to expend extensive time and resources to 
alter their lease agreements so as to obtain certifications from 
lessees regarding their status. Accordingly, the Second NPRM 
tentatively concludes that the adoption of standardized certification 
language should reduce any time and cost licensees have to expend on 
compliance.
    57. Proposed Licensee Certification. The Second NPRM proposes that 
broadcast licensees use the following standardized language when making 
the required certifications:
    I am authorized on behalf of [Licensee] to certify the following: I 
certify that in accordance with 47 CFR 73.1212(j), [Licensee] has:
    (1) Informed [Lessee] at the time of [entering into OR renewal of] 
this agreement of the foreign sponsorship disclosure requirement 
contained in 47 CFR 73.1212(j);
    (2) Inquired of [Lessee] at the time of [entering into OR renewal 
of] this agreement whether [Lessee] falls into any of the categories 
listed in the Federal Communication's (FCC) rules at 47 CFR 73.1212(j) 
such that the [Lessee] qualifies as a ``foreign governmental entity,'';
    The FCC's rules state that term ``foreign governmental entity'' 
includes a ``government of foreign country,'' ``foreign political 
party,'' an ``agent of a foreign principal,'' and a ``United States-
based foreign media outlet.'' 47 CFR 73.1212(j)(2). The FCC's rules, at 
47 CFR 73.1212(j)(2)(i) through (iv), define these terms in the 
following manner:
    (i) The term ``government of a foreign country'' has the meaning 
given such term in the Foreign Agents Registration Act of 1938 (FARA), 
47 U.S.C. 611(e);
    (ii) The term ``foreign political party'' has the meaning given 
such term in the Foreign Agents Registration Act of 1938 (FARA), 47 
U.S.C. 611(f);
    (iii) The term ``agent of a foreign principal'' has the meaning 
given such term in the Foreign Agents Registration Act of 1938 (22 
U.S.C. 611(c)), and who is registered as such with the Department of 
Justice, and whose ``foreign principal'' is a ``government of a foreign 
country,'' a ``foreign political party,'' or directly or indirectly 
operated, supervised, directed, owned, controlled, financed, or 
subsidized by a ``government of a foreign country'' or a ``foreign 
political party'' as defined in Sec.  73.1212(j)(2)(i) and (ii), and 
that is acting in its capacity as an agent of such ``foreign 
principal;''
    (iv) The term ``United States-based foreign media outlet'' has the 
meaning given such term in Section 722(a) of the Communications Act of 
1934 (47 U.S.C. 624(a)).
    (3) Inquired of [Lessee] at the time of [entering into OR renewal 
of] this agreement whether it knows if any individual/entity in the 
chain of producing or distributing the programming that will be aired 
pursuant to the lease agreement, or a sub-lease, qualifies as a 
``foreign governmental entity,'' as that term is defined in 47 U.S.C. 
73.1212(j)(2), and has provided some type of inducement to air the 
programming, including, in the case of political programming or 
programming involving the discussion of a controversial issue, the 
programming itself;

[[Page 68971]]

    (4) Sought and obtained from [Lessee] a certification stating 
whether [Lessee] [is OR is not] a ``foreign governmental entity,'' as 
that term is defined in 47 U.S.C. 73.1212(j)(2);
    (5) Sought and obtained from [Lessee] a certification about whether 
it knows if any individual/entity in the chain of producing or 
distributing the programming that will be aired pursuant to the lease 
agreement, or a sub-lease, qualifies as a ``foreign governmental 
entity,'' as that term is defined in 47 U.S.C. 73.1212(j)(2), and has 
provided some type of inducement to air the programming, including, in 
the case of political programming or programming involving the 
discussion of a controversial issue, the programming itself; and
    (6) If [Lessee] qualifies, or knows of an individual/entity further 
back in the chain of producing or distributing the programming that 
qualifies, as a ``foreign governmental entity,'' pursuant to 47 CFR 
73.1212(j)(2), then [Licensee] obtained from [Lessee] the information 
needed to append the following disclosure to lessee's programming 
consistent with 47 CFR 73.1212(j)(1)(i):
    ``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].''
    I, [insert name of individual/entity authorized to certify on 
behalf of Licensee] by my signature attest to the truth of the 
statements listed above.
    58. Proposed Lessee Certification. The Second NPRM proposes that 
lessees use the following language when making the required 
certifications:
    I am authorized on behalf of [Lessee] to certify to the following:
    (1) [Licensee] has informed [Lessee] at the time of [entering into 
OR renewal of] this agreement of the foreign sponsorship disclosure 
requirement contained in 47 CFR 73.1212(j);
    (2) [Licensee] has inquired of [Lessee] at the time of [entering 
into OR renewal of] this agreement whether [Lessee] falls into any of 
the categories listed in the Federal Communications Commission's (FCC) 
rules at 47 CFR 73.1212(j) such that the [Lessee] qualifies as a 
``foreign governmental entity,'';
    The FCC's rules state that the term ``foreign governmental entity'' 
includes a ``government of foreign country,'' ``foreign political 
party,'' an ``agent of a foreign principal,'' and a ``United States-
based foreign media outlet.'' 47 CFR 73.1212(j)(2). The FCC's rules, at 
47 CFR 73.1212(j)(2)(i) through (iv), defines these terms in the 
following manner:
    (i) The term ``government of a foreign country'' has the meaning 
given such term in the Foreign Agents Registration Act of 1938 (FARA), 
47 U.S.C. 611(e);
    (ii) The term ``foreign political party'' has the meaning given 
such term in the Foreign Agents Registration Act of 1938 (FARA), 47 
U.S.C. 611(f);
    (iii) The term ``agent of a foreign principal'' has the meaning 
given such term in the Foreign Agents Registration Act of 1938 (22 
U.S.C. 611(c)), and who is registered as such with the Department of 
Justice, and whose ``foreign principal'' is a ``government of a foreign 
country,'' a ``foreign political party,'' or directly or indirectly 
operated, supervised, directed, owned, controlled, financed, or 
subsidized by a ``government of a foreign country'' or a ``foreign 
political party'' as defined in Sec.  73.1212(j)(2)(i) and (ii), and 
that is acting in its capacity as an agent of such ``foreign 
principal;''
    (iv) The term ``United States-based foreign media outlet'' has the 
meaning given such term in Section 722(a) of the Communications Act of 
1934 (47 U.S.C. 624(a)).
    (3) [Licensee] has inquired of [Lessee] at the time of [entering 
into OR renewal of] this agreement whether [Lessee] knows if any 
individual/entity further back in the chain of producing or 
distributing the programming that will be aired pursuant to the lease 
agreement, or a sub-lease, qualifies as a ``foreign governmental 
entity,'' as that term is defined in 47 CFR 73.1212(j)(2), and has 
provided some type of inducement to air the programming, including, in 
the case of political programming or programming involving the 
discussion of a controversial issue, the programming itself;
    (4) [Lessee] certifies that it [is OR is not] a ``foreign 
governmental entity,'' as that term is defined in 47 CFR 73.1212(j)(2);
    (5) If applicable: [Lessee] certifies that to its knowledge 
[Individual/Entity] qualifies as a ``foreign governmental entity,'' as 
that term is defined in 47 CFR 73.1212(j)(2), and has provided some 
type of inducement to air the programming, including, in the case of 
political programming or programming involving the discussion of a 
controversial issue, the programming itself;
    (6) If applicable: [Lessee] certifies that to its knowledge there 
is no individual/entity further back in the chain of producing or 
distributing the programming that will be aired pursuant to the lease 
agreement, or sub-lease, that qualifies as a ``foreign governmental 
entity,'' as that term is defined in 47 CFR 73.1212(j)(2), and has 
provided some type of inducement to air the programming, including, in 
the case of political programming or programming involving the 
discussion of a controversial issue, the programming itself;
    (7) If applicable: [Lessee] certifies that to its knowledge there 
is an individual/entity further back in the chain of producing or 
distributing the programming that will be aired pursuant to the lease 
agreement, or sub-lease, that qualifies as a ``foreign governmental 
entity,'' as that term is defined in 47 CFR 73.1212(j)(2), and has 
provided some type of inducement to air the programming, including, in 
the case of political programming or programming involving the 
discussion of a controversial issue, the programming itself. The name, 
address, phone number, and email address, if known, of such individual/
entity is [individual/entity name, address, phone number, and email 
address, if known];
    (8) To the extent applicable, [Lessee] has provided [Licensee] the 
information needed to append the following disclosure to lessee's 
programming consistent with the FCC's rules, found at 47 CFR 
73.1212(j)(1)(i):
    ``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].''
    (9) [Lessee] certifies that during the course of the lease 
agreement, [Lessee] commits to notify [Licensee] if [Lessee's] status 
as a ``foreign governmental entity'' changes or if [Lessee] learns that 
there is an individual/entity further back in the chain of producing or 
distributing the programming that will be aired pursuant to the lease 
agreement, or sub-lease, that qualifies as a ``foreign governmental 
entity,'' as that term is defined in 47 CFR 73.1212(j)(2), and has 
provided some type of inducement to air the programming, including, in 
the case of political programming or programming involving the 
discussion of a controversial issue, the programming itself.
    I, [insert name of individual/entity authorized to certify on 
behalf of Lessee] by my signature attest to the truth of the statements 
listed above.
    59. Section 325(c) Permits. A section 325(c) permit is required 
when an entity produces programming in the United States but, rather 
than broadcasting the programming from a U.S.-licensed station, 
transmits or delivers the programming from a U.S. studio to a non-U.S. 
licensed station in a foreign country for broadcast by the foreign 
station into the United States. The

[[Page 68972]]

Second NPRM seeks to clarify under Sec.  73.1212 of the Commission's 
rules that the foreign sponsorship identification disclosure 
requirements apply to any programming permitted to be delivered to 
foreign broadcast stations under an authorization pursuant to section 
325(c) of the Act if the material has been (i) sponsored by a foreign 
governmental entity; (ii) paid for by a foreign governmental entity; 
(iii) furnished for free by a foreign governmental entity to the 
section 325(c) permit holder as an inducement to air the material on 
the foreign station; or (iv) provided by the section 325(c) permit 
holder to the foreign station where the section 325(c) permit holder is 
a foreign governmental entity. Where the section 325(c) permit holder 
itself is a foreign governmental entity, the disclosure requirements 
apply to all programming provided by the permit holder to a foreign 
station. The Second NPRM also seeks comment on whether there is a need 
to apply any reasonable diligence requirements proposed in this Second 
NPRM to any programming permitted to be delivered to a foreign station 
pursuant to a section 325(c) permit and if applicable whether the 
proposed certifications or other due diligence documentation should be 
placed in the IBFS by section 325(c) permit holders.
    60. The Second NPRM proposes the following language to replace the 
existing language of Sec.  73.1212(k):
    Where any material delivered to foreign broadcast stations under an 
authorization pursuant to section 325(c) of the Communications Act (47 
U.S.C. 325(c)) has been sponsored by a foreign governmental entity; 
paid for by a foreign governmental entity; furnished for free by a 
foreign governmental entity to the section 325(c) permit holder as an 
inducement to air the material on the foreign station; or provided by 
the section 325(c) permit holder to the foreign station where the 
section 325(c) permit holder is a foreign governmental entity, the 
material must include, at the time of broadcast, the following 
disclosure, in conformance with the terms of paragraphs (j)(4)-(6): 
``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].'' A 
section 325(c) permit holder shall ensure that the foreign station will 
broadcast the disclosures along with the material and shall place 
copies of the disclosures required along with the name of the program 
to which the disclosures were appended in the International Bureau's 
public filing system (IBFS) under the relevant IBFS section 325(c) 
permit file. The filing must state the date and time the program aired. 
In the case of repeat airings of the program, those additional dates 
and times should also be included. Where an aural announcement was 
made, its contents must be reduced to writing and placed in the IBFS in 
the same manner. The section 325(c) permit holder shall exercise 
reasonable diligence to ascertain whether the foreign sponsorship 
disclosure requirements of paragraphs (j)(1) and (j)(4)-(6) apply to 
any material delivered to a foreign broadcast station, including 
obtaining from its employees, and from other persons with whom it deals 
directly in connection with any matter for broadcast, and in the same 
manner prescribed for broadcast stations in paragraph (j)(3), 
information to enable the permit holder to include the announcement 
required by this section; memorializing its conduct of such reasonable 
diligence; and retaining such documentation in its records for either 
the remainder of the then-current permit term or one year, whichever is 
longer, so as to respond to any future Commission inquiry. The term 
``foreign governmental entity'' shall have the meaning set forth in 
paragraph (j)(2).
    61. Alternative Approach. The Second NPRM also seeks comment on an 
alternative approach raised by the D.C. Circuit. At oral argument, the 
court asked whether it would be consistent with the Act and accomplish 
the same goal as the requirement that the court ultimately vacated to 
instead require licensees to ask lessees to provide appropriate 
documentation (e.g., the relevant FARA page showing that their sponsors 
are not listed there). In accord with the court's question, the Second 
NPRM asks whether would it be consistent with the Commission's 
authority under section 317 of the Act to require licensees to seek or 
obtain such proof from lessees (e.g., by a screen shot)? Should a 
licensee have to seek or obtain from its lessee proof that the lessee's 
name does not appear in either the FARA database or the Commission's 
U.S.-based foreign media outlet reports? Would this approach accomplish 
the same purpose as the vacated rule requirement? What would be the 
burdens of this approach on licensees and lessees? Would it provide 
greater assurance of ensuring identification of any foreign 
governmental entity sponsorship of the programming at issue compared to 
requiring the licensee to obtain a certification from the lessee?
    62. Petition for Clarification. Finally, the Second NPRM provides 
interested parties an additional opportunity to comment on a pending 
Petition for Clarification ``regarding the applicability of the foreign 
sponsorship identification rules to advertisements sold by local 
broadcast stations.'' The Second NPRM seeks comment on whether 
experience with these rules has provided broadcasters or others with 
additional insight regarding the issues raised in the Petition and 
specifically what criteria the Commission might adopt to distinguish 
between advertising and programming arrangements for the lease of 
airtime. For example, are there key characteristics that could assist 
in distinguishing advertising spots from a lease of airtime on a 
station, such as duration, content, editorial control, or differences 
in the nature of the contractual relationship between the licensee and 
the entity that purchases an advertising spot versus leasing airtime 
for programming. What criteria might the Commission adopt to ensure 
that the concept of ``advertising'' does not subsume ``leased time'' or 
vice versa? Additionally, might the establishment of a safe harbor 
assist in this regard? For example, could the Commission establish a 
presumption that any broadcast matter that is two minutes or less in 
length, absent any other indicia, will be considered ``short-form 
advertising'' for purposes of the foreign sponsorship identification 
rules?

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    63. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
the establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    64. In proposing certification requirements, the Commission has 
carefully considered the resources available to radio and television 
broadcast stations, many of which are small entities. The Second NPRM 
proposes a certification process for licensees and lessees using 
proposed standardized certification language, which should 
significantly reduce the cost, time, and effort that licensees and 
lessees have to expend to comply with the ``reasonable diligence'' 
standard

[[Page 68973]]

contained in section 317(c) of the Act with regard to foreign 
government-provided programming. The establishment of standardized 
certification language would eviscerate any need for licenses or 
lessees to seek outside assistance in crafting or reviewing 
certifications. Licensees and lessees can cut and paste the 
standardized certification language into the relevant documents and 
fill in simple details such as the name of the licensee or lessee, 
whether the lessee is or is not a foreign governmental entity, and the 
name of any foreign governmental sponsor further back in the 
programming chain. Separately, by seeking comment on the alternative 
approach offered by the D.C. Circuit, as described in paragraph 22, we 
seek feedback on other mechanisms that could potentially streamline the 
process for small broadcasters tasked with satisfying their reasonable 
diligence requirements under the Commission's rules. Additionally, the 
Second NPRM proposes and seeks comment on the harmonization of the time 
period for retaining certifications within the licensee's OPIF and the 
time period for retaining lease agreements. As stated in the Second 
NPRM, such an alignment can further simplify compliance for licensees.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule

    65. None.

Ordering Clauses

    66. Accordingly, it is ordered that, pursuant to the authority 
contained in sections 1, 2, 4(i), 4(j), 303(r), 307, 317, 325(c), 403, 
and 507 of the Communications Act, 47 U.S.C. 151, 152, 154(i), 154(j), 
303(r), 307, 317, 325(c), 403, and 508 this Second Notice of Proposed 
Rulemaking is adopted.
    67. It is further ordered that, pursuant to applicable procedures 
set forth in Sec. Sec.  1.415 and 1.419 of the Commission's rules, 47 
CFR 1.415, 1.419, interested parties may file comments on the Second 
Notice of Proposed Rulemaking in MB Docket No. 20-299 on or before 
thirty (30) days after publication in the Federal Register and reply 
comments on or before sixty (45) days after publication in the Federal 
Register.
    68. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Second Notice of Proposed Rulemaking, including the 
Initial Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 73

    Radio, Reporting and recordkeeping requirements, Television.

Federal Communications Commission.
Marlene Dortch,
Secretary.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 73 as follows:

PART 73--RADIO BROADCAST SERVICE

0
1. The authority citation for part 73 continues to read as follows:

    Authority: 47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 
336, 339.

0
2. Amend Sec.  73.1212 by:
0
a. Revising paragraphs (j)(3)(iv) and (v);
0
b. Adding paragraphs (j)(3)(vi) and (vii) and (j)(8); and
0
c. Revising paragraph (k).
    The revisions and additions read as follows:


Sec.  73.1212  Sponsorship identification; list retention; related 
requirements.

* * * * *
    (j) * * *
    (3) * * *
    (iv) Certifying that it has informed lessee about paragraph (j)(1) 
of this section, foreign sponsorship disclosure requirement, and made 
inquiries of lessee in conformance with paragraphs (j)(3)(ii) and (iii) 
of this section. Licensee shall incorporate the following language in 
its certification:
    (A) I am authorized on behalf of [Licensee] to certify the 
following: I certify that in accordance with 47 CFR 73.1212(j), 
[Licensee] has:
    (1) Informed [Lessee] at the time of [entering into OR renewal of] 
this agreement of the foreign sponsorship disclosure requirement 
contained in 47 CFR 73.1212(j);
    (2) Inquired of [Lessee] at the time of [entering into OR renewal 
of] this agreement whether [Lessee] falls into any of the categories 
listed in the Federal Communications Commission's (FCC) rules at 47 CFR 
73.1212(j) such that the [Lessee] qualifies as a ``foreign governmental 
entity,'';
    The FCC's rules state that term ``foreign governmental entity'' 
includes a ``government of a foreign country,'' ``foreign political 
party,'' an ``agent of a foreign principal,'' and a ``United States-
based foreign media outlet.'' 47 CFR 73.1212(j)(2). The FCC's rules, at 
47 CFR 73.1212(j)(2)(i) through (iv), define these terms in the 
following manner:
    (i) The term ``government of a foreign country'' has the meaning 
given such term in the Foreign Agents Registration Act of 1938 (FARA), 
22 U.S.C. 611(e);
    (ii) The term ``foreign political party'' has the meaning given 
such term in the Foreign Agents Registration Act of 1938 (FARA), 22 
U.S.C. 611(f);
    (iii) The term ``agent of a foreign principal'' has the meaning 
given such term in the Foreign Agents Registration Act of 1938 (22 
U.S.C. 611(c)), and who is registered as such with the Department of 
Justice, and whose ``foreign principal'' is a ``government of a foreign 
country,'' a ``foreign political party,'' or directly or indirectly 
operated, supervised, directed, owned, controlled, financed, or 
subsidized by a ``government of a foreign country'' or a ``foreign 
political party'' as defined in 47 CFR 73.1212(j)(i) and (ii), and that 
is acting in its capacity as an agent of such ``foreign principal;''
    (iv) The term ``United States-based foreign media outlet'' has the 
meaning given such term in section 722(a) of the Communications Act of 
1934 (47 U.S.C. 624(a)).
    (3) Inquired of [Lessee] at the time of [entering into OR renewal 
of] this agreement whether it knows if any individual/entity in the 
chain of producing or distributing the programming that will be aired 
pursuant to the lease agreement, or a sub-lease, qualifies as a 
``foreign governmental entity,'' as that term is defined in 47 CFR 
73.1212(j)(2), and has provided some type of inducement to air the 
programming, including, in the case of political programming or 
programming involving the discussion of a controversial issue, the 
programming itself;
    (4) Sought and obtained from [Lessee] a certification stating 
whether [Lessee] [is OR is not] a ``foreign governmental entity,'' as 
that term is defined in 47 CFR 73.1212(j)(2);
    (5) Sought and obtained from [Lessee] a certification about whether 
it knows if any individual/entity in the chain of producing or 
distributing the programming that will be aired pursuant to the lease 
agreement, or a sub-lease, qualifies as a ``foreign governmental 
entity,'' as that term is defined in 47 CFR 73.1212(j)(2), and has 
provided some type of inducement to air the programming, including, in 
the case of political programming or programming involving the 
discussion of a controversial issue, the programming itself; and
    (6) If [Lessee] qualifies, or knows of an individual/entity further 
back in the chain of producing or distributing the programming that 
qualifies, as a

[[Page 68974]]

``foreign governmental entity,'' pursuant to 47 CFR 73.1212(j)(2), then 
[Licensee] obtained from [Lessee] the information needed to append the 
following disclosure to lessee's programming consistent with 47 CFR 
73.1212(j)(1)(i):
    ``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].''
    (7) I, [insert name of individual/entity authorized to certify on 
behalf of Licensee] by my signature attest to the truth of the 
statements listed above.
    (v) Requesting that lessee provide a certification responding to 
the inquiries contained in paragraphs (j)(3)(ii) and (iii) of this 
section. Lessee shall incorporate the following language in its 
certification:
    (1) I am authorized on behalf of [Lessee] to certify to the 
following:
    (A) [Licensee] has informed [Lessee] at the time of [entering into 
OR renewal of] this agreement of the foreign sponsorship disclosure 
requirement contained in 47 CFR 73.1212(j);
    (B) [Licensee] has inquired of [Lessee] at the time of [entering 
into OR renewal of] this agreement whether [Lessee] falls into any of 
the categories listed in the Federal Communications Commission's (FCC) 
rules at 47 CFR 73.1212(j) such that the [Lessee] qualifies as a 
``foreign governmental entity,'';
    (1) The term ``government of a foreign country'' has the meaning 
given such term in the Foreign Agents Registration Act of 1938 (FARA), 
22 U.S.C. 611(e);
    (2) The term ``foreign political party'' has the meaning given such 
term in the Foreign Agents Registration Act of 1938 (FARA), 22 U.S.C. 
611(f);
    (3) The term ``agent of a foreign principal'' has the meaning given 
such term in the Foreign Agents Registration Act of 1938 (22 U.S.C. 
611(c)), and who is registered as such with the Department of Justice, 
and whose ``foreign principal'' is a ``government of a foreign 
country,'' a ``foreign political party,'' or directly or indirectly 
operated, supervised, directed, owned, controlled, financed, or 
subsidized by a ``government of a foreign country'' or a ``foreign 
political party'' as defined in 47 CFR 73.1212(j)(i) and (ii), and that 
is acting in its capacity as an agent of such ``foreign principal;''
    (4) The term ``United States-based foreign media outlet'' has the 
meaning given such term in Section 722(a) of the Communications Act of 
1934 (47 U.S.C. 624(a)).
    (C) [Licensee] has inquired of [Lessee] at the time of [entering 
into OR renewal of] this agreement whether [Lessee] knows if any 
individual/entity further back in the chain of producing or 
distributing the programming that will be aired pursuant to the lease 
agreement, or a sub-lease, qualifies as a ``foreign governmental 
entity,'' as that term is defined in 47 CFR 73.1212(j)(2), and has 
provided some type of inducement to air the programming, including, in 
the case of political programming or programming involving the 
discussion of a controversial issue, the programming itself;
    (D) [Lessee] certifies that it [is OR is not] a ``foreign 
governmental entity,'' as that term is defined in 47 CFR 73.1212(j)(2);
    (E) If applicable: [Lessee] certifies that to its knowledge 
[Individual/Entity] qualifies as a ``foreign governmental entity,'' as 
that term is defined in 47 CFR 73.1212(j)(2), and has provided some 
type of inducement to air the programming, including, in the case of 
political programming or programming involving the discussion of a 
controversial issue, the programming itself;
    (F) If applicable: [Lessee] certifies that to its knowledge there 
is no individual/entity further back in the chain of producing or 
distributing the programming that will be aired pursuant to the lease 
agreement, or sub-lease, that qualifies as a ``foreign governmental 
entity,'' as that term is defined in 47 CFR 73.1212(j)(2), and has 
provided some type of inducement to air the programming, including, in 
the case of political programming or programming involving the 
discussion of a controversial issue, the programming itself;
    (G) If applicable: [Lessee] certifies that to its knowledge there 
is an individual/entity further back in the chain of producing or 
distributing the programming that will be aired pursuant to the lease 
agreement, or sub-lease, that qualifies as a ``foreign governmental 
entity,'' as that term is defined in 47 CFR 73.1212(j)(2), and has 
provided some type of inducement to air the programming, including, in 
the case of political programming or programming involving the 
discussion of a controversial issue, the programming itself. The name, 
address, phone number, and email address, if known, of such individual/
entity is [individual/entity name, address, phone number, and email 
address, if known];
    (H) To the extent applicable, [Lessee] has provided [Licensee] the 
information needed to append the following disclosure to lessee's 
programming consistent with the FCC's rules, found at 47 CFR 
73.1212(j)(1)(i):
    ``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].''
    (I) [Lessee] certifies that during the course of the lease 
agreement, [Lessee] commits to notify [Licensee] if [Lessee's] status 
as a ``foreign governmental entity'' changes or if [Lessee] learns that 
there is an individual/entity further back in the chain of producing or 
distributing the programming that will be aired pursuant to the lease 
agreement, or sub-lease, that qualifies as a ``foreign governmental 
entity,'' as that term is defined in 47 CFR 73.1212(j)(2), and has 
provided some type of inducement to air the programming, including, in 
the case of political programming or programming involving the 
discussion of a controversial issue, the programming itself.
    (J) I, [insert name of individual/entity authorized to certify on 
behalf of Lessee] by my signature attest to the truth of the statements 
listed above.
    (vi) Retaining the certifications, described above in paragraphs 
(j)(3)(iv) and (v) of this section, within the station's online public 
inspection file for a period equal to the time that the lease agreement 
remains in force.
    (vii) In the event lessee does not provide a certification 
responding to the inquiries contained in paragraphs (j)(3)(ii) and 
(iii) of this section and licensee proceeds with the lease agreement, 
notifying the Media Bureau at [email address] about lessee's failure to 
submit a certification and providing the Media Bureau with lessee's 
contact information, including, to the extent known, lessee's name, 
postal address, email address, and phone number.
* * * * *
    (8) A station shall place copies of the certifications required by 
paragraphs (j)(3)(iv) and (v) of this section in its online public 
inspection file within 30 days of the execution of the lease agreement 
with which the certifications are associated.
* * * * *
    (k) Where any material delivered to foreign broadcast stations 
under an authorization pursuant to section 325(c) of the Communications 
Act (47 U.S.C. 325(c)) has been sponsored, by a foreign governmental 
entity; paid for by a foreign governmental entity; furnished for free 
by a foreign governmental entity to the section 325(c) permit holder as 
an inducement to air the material on the foreign station; or provided 
by the section 325(c) permit holder to the foreign station where the 
section 325(c)

[[Page 68975]]

permit holder is a foreign governmental entity, the material must 
include, at the time of broadcast, the following disclosure, in 
conformance with the terms of paragraphs (j)(4) through (6) of this 
section: ``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].'' A 
section 325(c) permit holder shall ensure that the foreign station will 
broadcast the disclosures along with the material and shall place 
copies of the disclosures required along with the name of the program 
to which the disclosures were appended in the International Bureau's 
public filing System (IBFS) under the relevant IBFS section 325(c) 
permit file. The filing must state the date and time the program aired. 
In the case of repeat airings of the program, those additional dates 
and times should also be included. Where an aural announcement was 
made, its contents must be reduced to writing and placed in the IBFS in 
the same manner. The section 325(c) permit holder shall exercise 
reasonable diligence to ascertain whether the foreign sponsorship 
disclosure requirements of paragraphs (j)(1) and (j)(4) through (6) of 
this section apply to any material delivered to a foreign broadcast 
station, including obtaining from its employees, and from other persons 
with whom it deals directly in connection with any matter for 
broadcast, and in the same manner prescribed for broadcast stations in 
paragraph (j)(3) of this section, information to enable the permit 
holder to include the announcement required by this section; 
memorializing its conduct of such reasonable diligence; and retaining 
such documentation in its records for either the remainder of the then-
current permit term or one year, whichever is longer, so as to respond 
to any future Commission inquiry. The term ``foreign governmental 
entity'' shall have the meaning set forth in paragraph (j)(2) of this 
section.
0
3. Amend Sec.  73.3526 by revising paragraph (e)(19) to read as 
follows:


Sec.  73.3526  Online public inspection file of commercial stations.

* * * * *
    (e) * * *
    (19) Foreign sponsorship disclosures and certifications. 
Documentation sufficient to demonstrate that the station is continuing 
to meet the requirements set forth at Sec.  73.1212(j)(7) and (8).
* * * * *
0
6. Amend Sec.  73.3527 by revising paragraph (e)(15) to read as 
follows:


Sec.  73.3527  Online public inspection file of noncommercial 
educational stations.

* * * * *
    (e) * * *
    (15) Foreign sponsorship disclosures and certifications. 
Documentation sufficient to demonstrate that the station is continuing 
to meet the requirements set forth at Sec.  73.1212(j)(7) and (8).
* * * * *
[FR Doc. 2022-24393 Filed 11-16-22; 8:45 am]
BILLING CODE 6712-01-P