By Scott Flick, Pillsbury Law
Time moves slowly in the regulatory universe, at least until you are facing a deadline. It was in 2022 that I first wrote about the then-upcoming September 15, 2022 deadline for broadcasters to disclose whether all content “aired pursuant to the lease of time on the station” had a “foreign governmental entity” behind it, in which case the broadcaster needed to disclose that foreign sponsorship both on-air and in the station’s Public Inspection File. The task was made more difficult by the broad definition of a foreign governmental entity, which included not just foreign governments, but “foreign political parties, agents of foreign principals, and United States-based foreign media outlets.”
The part of the rule requiring broadcasters to independently investigate whether those leasing airtime were foreign governmental entities was overturned by the courts in July 2022, but that didn’t prevent the remainder of the rule from going into effect in 2022. The remainder (as summarized by the FCC) included:
(1) Inform the lessee of the foreign sponsorship disclosure requirement.
(2) Ask the lessee whether it falls into any of the categories that would qualify it as a “foreign governmental entity.”
(3) Ask the lessee whether it knows if any individual/entity further back in the chain of
producing/distributing the programming to be aired qualifies as a foreign governmental entity and has provided some type of inducement to air the programming.
(4) Memorialize the above-listed inquiries and retain such memorialization in its records for the remainder of the license term or for one year, whichever is longer.
The FCC, unwilling to settle for 4/5 of the apple and obviously stung by the court’s rebuke, altered the rule in June 2024 to sidestep the court’s ruling. Since the court had found that the FCC lacked statutory authority to compel broadcasters to obtain sponsorship information from anyone other than their employees and program sponsors, the FCC amended the rule to require that either (1) the broadcaster and the sponsor execute separate certifications “reflecting the communications and inquiries required under the existing rules,” or (2) the broadcaster “ask their lessees for screenshots of lessees’ search results of two federal government websites [DOJ’s FARA website and the FCC’s U.S.-based foreign media outlets reports].” In other words, the FCC’s maneuver was that if it was beyond its authority to make broadcasters conduct due diligence searches of those two government websites, it wasn’t beyond its authority to demand broadcasters still conduct due diligence research by asking their content providers/sponsors to search those same two websites and provide the search results to the broadcaster.
It’s an onerous requirement given that broadcasters have no legal right to demand anything of their content providers/sponsors, and those same providers can simply elect to take their business to literally every other form of media without facing such regulatory hurdles. While unwelcome, it was still largely manageable because the FCC in adopting the original rule had made clear that a lease of airtime did not include “traditional, short-form advertising,” and leases of blocks of airtime on broadcast stations are relatively rare compared to traditional ad sales.
Unfortunately, in the later June 2024 Order, the FCC “clarified” the rule to make clear that it “will not apply to sales of advertising for commercial goods and services to the extent that such programming would not otherwise be subject to the general sponsorship disclosure rules, as set forth in section 73.1212(f) of our rules.” So it would apply to ads that are not for “commercial goods and services.” That includes ads for nonprofits and ads that don’t fit within Section 73.1212(f). One example of an ad that is not for a commercial product or service is a U.S. Navy recruiting ad, meaning that broadcasters would need to collect certifications/proof that the U.S. Navy is not a representative of a foreign government before airing its recruiting ads.
The Order then plunged the regulatory dagger deeper, explicitly stating that the rule would apply to the airing of paid Public Service Announcements (PSAs) and all political advertising unless placed by a candidate. The sheer volume of political ads and the pace at which they are changed in the months leading up to an election is staggering, with ample FCC Political File disclosure requirements already bedeviling stations trying to handle that workload. The notion of demanding yet more information and documentation from a political advertiser adds to the burden on station employees while giving political advertisers one more reason to take their advertising elsewhere, where they will face none of those regulatory headaches. And let’s be honest; some advertisers will be absolutely offended by the mere suggestion that they could be connected to a foreign government.
Because no one could figure out how to make such a labor and paperwork-intensive process work in the real world, and because the paperwork requirements had to be approved by the Office of Management and Budget before they could go into effect, the FCC originally announced the amended rule would go into effect a year later, on June 10, 2025. Then, late in the day on June 10, 2025, the FCC announced an extension of the compliance deadline to December 8, 2025. Announcing extensions for what appeared to many to be a fundamentally unworkable rule became a running feature here on CommLawCenter.
So I was not entirely surprised to find myself writing on December 5, 2025, one business day before the next deadline, that the FCC had just announced a further extension of the deadline to June 7, 2026. That post ended with the hopeful message that the FCC might “use this added time to streamline these rather unwieldy requirements before next June.”
That proved partially prophetic. This time around the FCC didn’t wait until the last minute to announce its plans regarding when broadcasters must come into compliance with the amended foreign sponsorship rule. While today’s FCC Public Notice emphasized that the deadline for complying with the amended foreign sponsorship rule remains June 7, 2026, it announced that it is suspending the compliance deadline for advertisements and paid PSAs for “two years or until further public notice, whichever comes first.”
More important than the two-year extension is the reason given for it: “this delay of the advertisement and paid PSA regulation is necessary for the Commission to evaluate the costs and burdens associated with these requirements to ensure that there is sufficient offsetting public benefit.” In other words, the FCC is reassessing whether the burden imposed by expanding the “diligence” requirement to advertising and paid PSAs makes any sense given the substantial burdens involved and the lack of any record evidence demonstrating that broadcast advertisements are being used as undisclosed propaganda tools by foreign governments.
That doesn’t mean that the non-diligence parts of the rule don’t still apply to advertisements and paid PSAs. While broadcasters won’t be required to provide certifications or government database search results demonstrating that an ad sponsor is not connected to a foreign government, if the broadcaster has actual knowledge that the sponsor is connected to a foreign government, it must still ensure the ad includes an on-air disclosure of that fact, and place a record of it in its Public Inspection File.
So the next time you see a “Visit Scandinavia” ad that portrays Scandinavia as a pleasant place to visit, don’t fall for it. That’s just what the Scandinavian governments want you to think.
