[co-author: David Silverman*]

Issues/Programs Lists; FCC Political File Obligations; Class A TV Eligibility and Foreign Government Program Certifications

By October 10, 2023, all radio and television broadcast stations, both commercial and noncommercial, must: (1) prepare a list of important issues facing their communities of license and the programs aired during July, August, and September 2023 dealing with those issues; and (2) post the documents to the FCC's online public file database.

Additionally, radio and television broadcast stations are reminded to keep complete and orderly records in their Political File of all requests for broadcast time made by or on behalf of a candidate for public office or by a political issue advertiser. The FCC's online public inspection file database ("OPIF") may be accessed through this link.

I. Issues/Programs Lists

All radio and TV broadcast stations must prepare Issues/Programs Lists within ten days after the end of each quarter. The quarterly Issues/Programs List is station-specific and, therefore, each station should have its own list, describing programming broadcast on that station addressing issues of importance to its viewers or listeners. The next list must be prepared and posted by October 10, 2023.

The quarterly Issues/Programs List should reflect the "station's most significant programming treatment of community issues." Thus, a station needs to identify issues of importance to its community of license that it has determined to be of significance during that quarter, and the programming that was responsive to those issues. In the past, the FCC had mandated identification of 5 to 10 issues per quarter. While the FCC no longer requires identification of a specific number of issues, that range remains a good target. See FCC Rule Sections 73.3526(e)(11)(i) and 73.3527(e)(8).

Although broadcasters have discretion in deciding which specific programs address the identified issues, all stations must broadcast some programming that does so. Each program must be identified, including the title and length of the program, as well as the time and date on which it was aired. The description should include a brief summary of the contents of the program, sufficient to demonstrate how the program addressed the identified issue. Failure to have a complete and timely set of quarterly Issues/Programs Lists can lead to significant fines at license renewal time or following an FCC inspection. Even stations that are off-air pursuant to Special Temporary Authority must prepare an Issues/Programs List stating that the station was off-air for the entire quarter, or provide a list of programs for the portion of the quarter during which the station was broadcasting.

II. Online Political Files

In addition to the Issues/Program Lists quarterly public file obligation discussed above, the Communications Act and FCC rules require all radio and TV broadcast stations to maintain and make available for public inspection information about all requests for broadcast time made: (1) by or on behalf of candidates for public office; and (2) by an issue advertiser whose advertisement communicates a message relating to a political matter of national importance. Stations are to upload such information to their online political files "as soon as possible." The FCC has interpreted "as soon as possible" to mean "immediately absent unusual circumstances." Stations should note that the FCC's Media Bureau has entered into Consent Decrees with stations for failure to comply with the FCC's Political File obligations and that failure to comply can pose challenges at the time of license renewal. See here and FCC Rule Section 73.1943.

III. Special Rules for Class A TV Stations

The FCC requires that Class A TV stations maintain information in their online public files sufficient to demonstrate their continuing eligibility for Class A status, i.e., that they: (1) have been on-air at least 18 hours per day; (2) have broadcast at least three hours per week of locally produced programming; and (3) have otherwise observed the rules that apply to full power TV stations. See here and FCC Rule Section 73.60000.

IV. Foreign Government Program Certifications

All agreements for the sale of program time on radio and TV broadcast stations should contain a certification from the program buyer that it is not a foreign government, foreign political party, or agent of a foreign government, including a U.S.-based foreign media company, and that no such foreign entity has paid the programmer to produce the program or to air it on the broadcast station(s). Broadcast station licensees must exercise "reasonable diligence," both at the time of the lease agreement and any renewal thereof, to ascertain whether the foreign sponsorship disclosure requirements apply, i.e., whether programming is being provided by a foreign government or political party or agent thereof. This includes programming provided to the station for free with the expectation that it will be broadcast. Licensees must maintain records reflecting their diligence for either the remainder of the then-current license term or one year, whichever is longer.

For any programs that are provided by a foreign government or its agent, the licensee is required to place enhanced sponsorship identification in the program. See FCC Rule Section 73.1212(j) for details.

Additionally, the airing of any such program requires the licensee to place copies of the disclosures required by that FCC rule in its online public inspection file on a quarterly basis, including the name of the program and the date and time when the program aired. These disclosures must be placed in a standalone folder titled "Foreign Government-Provided Programming Disclosures." In the case of repeat airings of the program, the broadcaster must place the date and time of all such airings in the public file.

The FCC has an outstanding rulemaking proceeding that would both create standardized language for the required certification and require that these certifications be placed in the station's public inspection file. There is also a bill pending in Congress that would impose additional obligations on broadcasters to check foreign agent registration databases maintained by the Department of Justice to confirm the accuracy of these certifications. We will keep you advised of any actions in these proceedings.

*David Silverman is a contract attorney and former partner of DWT. Sharon Mathis, Broadcast Paralegal, also contributed to this advisory.

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