Broadcasters have asked a federal court to stay the FCC's implementation of the decision to boost disclosure requirements for foreign government-sponsored programming until that court can hear their appeal of the decision.
The FCC voted unanimously in April to boost disclosures for programming on airtime leased by a foreign entity. The move came amid heightened focus in D.C. on disinformation campaigns and despite pushback from broadcasters, who argue the FCC is adding regulations to an already overregulated service, including charging broadcasters with the responsibility to investigate for foreign ownership.
The National Association of Broadcasters, Multicultural Media, Telecom and Internet
Council, Inc., and the National Association of Black Owned Broadcasters petitioned the FCC to stay the decision, but it declined to do so earlier this month.
On Wednesday (Dec. 22), they asked the U.S. Court of Appeals for the D.C. Circuit, which is hearing the challenge, to stay implementation pending judicial review, saying they are likely to win their appeal--one of the four prongs for a judicial stay--because the new rules unduly burdened speech and because broadcasters will suffer "irreparable harm"--another prong--without the stay. It says that harm is the unrecoverable costs to "hire and train employees to conduct the required investigations, engage counsel to review their leases, and negotiate with lessees to bring existing leases into compliance."
They also say the rules both compel and chill speech, which is another irreparable harm.
They also argue that the balance of hardships and the public interest favor a stay--prong number three.
"[T]he likely harm from requiring broadcasters to undertake fruitless investigations for thousands of lease agreements—the vast majority of which have no possible connection to foreign governmental entities—outweighs the benefit of the rule," the broadcasters told the court.
The fourth prong is whether a stay is likely to hurt the other side. That would be a "no" in their book. They say the FCC rule is "perversely designed" and targets a "phantom evil," which is that a foreign government would not identify themselves to broadcasters under their criminally enforceable statutory obligation to do so.
NAB and company two weeks ago filed their opening brief in the underlying appeal.
Broadcasters argued in their brief that the FCC doesn't have the authority to impose the obligations on broadcasters to investigate "every existing or new leased programming agreement" to ensure it does not run afoul of FCC rules. They also complained that the FCC order didn't say anything about undisclosed foreign government programming on cable or over-the-top, where they argue the problem--foreign governments manipulating media--really lies. ■
