Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554

In the Matter of ) ) Sponsorship Identification Requirements for ) MB Docket No. 20-299 Foreign Government-Provided Programming )

COMMENTS OF AMERICA’S PUBLIC TELEVISION STATIONS AND THE PUBLIC BROADCASTING SERVICE

America’s Public Television Stations (“APTS”)1 and the Public Broadcasting Service

(“PBS”)2 (collectively “PTV”) welcome this opportunity to submit comments in response to the

Federal Communications Commission’s (the “Commission”) Notice of Proposed Rulemaking regarding sponsorship identification requirements for foreign government-provided programming (the “Notice”).3 PTV fully supports the spirit and goals of the Notice, but PTV urges the Commission to adjust the proposed regulations to avoid unintended consequences by which, for example, a nature program that includes B-roll footage from a foreign tourism board is mislabeled as propaganda that is “paid for or furnished by” a foreign government. The

Commission should afford flexibility to noncommercial educational (“NCE”) licensees in the manner and language of any disclosure, in light of the unique commitment and service such

1 APTS is a non-profit organization whose membership comprises the licensees of nearly all of the nation’s CPB-qualified noncommercial educational television stations. The APTS mission is to support the continued growth and development of a strong and financially sound noncommercial television service for the American public. 2 PBS and its 335 local member stations across the country offer all Americans the opportunity to explore new ideas and new worlds through noncommercial content that is unique across the media landscape. Each month, over 100 million people tune to their local PBS station, where they are invited to hear diverse perspectives, to take front row seats to world-class drama and performances, and to experience the worlds of history, public affairs, science, and nature through in-depth educational programming. 3 FCC Notice of Proposed Rulemaking, In the Matter of Sponsorship Identification Requirements for Foreign Government-Provided Programming, MB Docket No. 20-299 (rel. Oct. 26, 2020) [hereinafter “Notice”].

stations have long demonstrated. In these comments, PTV explains the broad scope of potential unintended consequences that may result from the Notice as written, and PTV recounts extensive applicable precedents of the Commission adopting NCE-specific rules. The Commission can fully accomplish its important objectives in this proceeding by adopting the revised rules proposed herein.

EXECUTIVE SUMMARY

Against the backdrop of reports that certain foreign governments subject to U.S. sanctions have clandestinely purchased airtime for thinly-veiled propaganda on matters of national importance, the Commission has proposed rules requiring heightened disclosure of the source of such material. America’s Public Television Stations (“APTS”) and the Public

Broadcasting Service (“PBS”) (collectively “PTV”) wholeheartedly support the goal of making the public aware when a foreign government uses the U.S. airwaves for propaganda. The proposed rules in the Notice of Proposed Rulemaking (the “Notice”), however, would use a hair trigger to define the scope of programming subject to this heightened disclosure requirement— sweeping far more broadly than is necessary to accomplish the Notice’s laudable goals. The overbroad scope of the proposed rules would be especially inappropriate as applied to public television programming, given PTV’s well-documented history of editorial independence and transparency.

In stark contrast to the examples of blatant foreign propaganda cited in the Notice as appropriately motivating the Commission to take action, the literal text of the proposed rule would potentially force public television broadcasters to mislead the public into believing that innocuous content has been “paid for or furnished by” foreign governments in far too many cases, such as the following:

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• The drama series “The Woman in White,” which was broadcast initially by PTV stations in 2018. This psychological thriller was based on the historic 1860 novel by Wilkie Collins that is one of the earliest examples of modern detective fiction. Among other funders and as disclosed in the production credits, Invest Northern Ireland, a registrant under the Foreign Agents Registration Act (“FARA”), provided a small amount of financial support to this production due to the filming of scenes in the United Kingdom.

• The scientific miniseries “Natural Born Rebels,” which was premiered by the iconic 40-year running program NATURE in 2018. This miniseries explored new studies uncovering the science behind complex animal behaviors that seem rebellious on their surface, such as kleptomaniac crabs and kidnapping macaques. As disclosed in the production credits, the three-hour series included archival footage of desert landscapes provided free of charge by Tourism Australia, which is registered under FARA.

• The history program “When Whales Walked: Journeys in Deep Time,” which aired in 2019 and followed scientists on a global adventure through the fossil record while making new discoveries about the evolution of remarkable beasts. In order to film the one-of-a-kind fossilized tracks left by a herd of ancient four-tusked elephants, the producers needed permission from the Abu Dhabi Department of Culture and Tourism, a FARA registrant, to access the historic Mleisa Late Miocene Elephant Trackway Site in Al Dafra.

With a few adjustments to the proposed rule, the Commission can avoid harmful unintended results in which these and similar historical dramas and nature documentaries, along with other examples discussed herein, are effectively mislabeled as foreign propaganda. In particular, the Commission should provide noncommercial educational stations flexibility in the manner and language used to make any enhanced disclosure. According reasonable flexibility to noncommercial educational licensees is consistent with well-established Commission precedent and appropriately recognizes PTV’s track record of transparency, editorial independence, and unparalleled trust among the viewing public.

If the Commission declines to afford noncommercial licensees flexibility, at a minimum the Commission should appropriately tailor the proposed regulations to accomplish the goal of shining a spotlight on actual foreign propaganda without ensnaring innocuous content. First, the heightened disclosure should be triggered only when the program material is funded or provided

iii by a country or entity subject to U.S. sanctions by the Office of Foreign Assets Control within the Department of the Treasury. Second, the Commission should deem a program to be sponsored or furnished by a foreign governmental entity only if the program is provided in whole by that entity, or at least only if a majority of the content is attributable to that entity. Third, the rule should apply only where the content in question concerns political broadcast matter or involves the discussion of a controversial issue of public importance. Foreign “propaganda,” by its nature, will be within the scope of this more fittingly targeted definition. Fourth, the

Commission should take steps to mitigate the compliance burden on noncommercial licensees as detailed herein, such as by establishing a safe harbor for repeats and in the days preceding broadcast, and by exempting them from interrupting programming “every sixty minutes” with the enhanced sponsorship identification announcement.

Ultimately, there is a profound disjunction between the stated goal at the beginning of the

Notice (i.e., “to ensure the public is informed when airtime has been purchased”) and the actual rules proposed at the end of the Notice, which cover any material “provided by” a foreign governmental entity (with a broad and unwieldy definition of “provided by”).4 Given that NCE stations are already prohibited from selling airtime by Section 73.621, perhaps the entire Notice is intended to be moot as concerns PTV. Moreover, PTV only distributes “material chosen by the broadcaster itself” and is not induced into broadcasting any content.5 Based on the depth of nuance and complexity detailed in these comments, as well as the high levels of disclosure and transparency demonstrated for decades by PTV, the FCC should adjust its newly proposed rules to more clearly not encompass PTV and to be narrowly tailored to the actual threat at issue.

4 Notice at ¶ 30, n.91. 5 Id. at ¶ 1.

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TABLE OF CONTENTS

Executive Summary______ii

I. The Notice as Written Could Have Harmful Overbroad Unintended Consequences______1

II. PTV Urges the Commission to Provide Flexibility to Noncommercial Licensees by Supplementing Appendix A of the Notice with Section 73.1212(j)(5)______9

III. At a Minimum, the Commission Should Adjust the Proposal to Be Appropriately Narrowly Tailored______15

Conclusion______20

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I. The Notice as Written Could Have Harmful Overbroad Unintended Consequences.

In defining the scope of the proposed requirement for heightened disclosures, the Notice vacillates between language that is appropriately tailored to address clear propaganda by foreign governments and language that is remarkably overbroad. The Notice appears to encompass routine journalistically-sound production practices, which in no way involve selling or relinquishing airtime to potentially hostile foreign actors. PTV urges the Commission to tailor the new rule so that it addresses the specific concern of undisclosed foreign propaganda on matters of national importance and does not mislead the public into believing that other content with (at most) an attenuated connection to foreign sources is “paid for or furnished by” the government of a foreign country.

The Notice starts by suggesting that it is focused on prominently informing the public

“when airtime has been purchased” by a foreign government so that “audiences can distinguish between paid content and material chosen by the broadcaster itself.”6 In that vein, the Notice cites examples in which entities affiliated with the Russian or Chinese governments reportedly have made payments to certain broadcasters to air propaganda on controversial issues of public importance without any disclosure to the public of the foreign government’s involvement.7

6 Id. at ¶ 1. 7 Id. at ¶ 1, n.4 (citing to article “describing how the Chinese government radio broadcaster, CRI, was able through a subsidiary to lease almost all of the airtime on a Washington, DC area station and broadcast pro-Chinese government programming on this station without disclosing the linkage to the Chinese government”); ¶ 11 n.40 (citing to article about how the Kremlin-backed television network RT disseminates programming “designed to sow division in the west and pursue the foreign policy goals of the governments that back them, consciously or otherwise”); ¶ 13 n.42 (citing to article with the headline “How Russia Paid Radio Broadcaster $1.4 Million to Air Kremlin Propaganda in DC”); ¶ 13 n.43 (citing to article “describing how even as the Russian network RT America has been transmitting programming that raises fears among American viewers about the safety of 5G, Vladimir Putin is strongly promoting the launch of 5G in Russia”). Commissioner statements accompanying the Notice similarly describe examples of explicit foreign propaganda as motivation for the proposed rules. Notice, Statement of (continued…)

1 If ensuring transparency as to the source of blatant foreign propaganda were the definitive focus of the Notice and its proposed regulations, then PTV would have no need to comment on the proceeding at all. PTV and its member stations across the country do not sell airtime and do not distribute paid content and, in any event, abide scrupulously by existing sponsorship identification requirements.8 Unfortunately the Notice muddies the scope of its proposal by subsequently suggesting a much broader scope for the enhanced disclosure, such that the result is not merely to shine a light on the source of actual foreign propaganda but instead to mislabel any content that has a loose connection to an entity that works with a foreign government as being “paid for or furnished by” that foreign government. For example, the

Notice suggests a heightened disclosure is necessary on any program for which an entity that has registered under FARA provides any content that appears in the program “free of charge (or at nominal cost) as an inducement to broadcast such material” (without defining inducement). The

Notice uses the word “indirectly” throughout when discussing what would constitute

“consideration” by a FARA-registered entity to a program, without appearing to understand the dozens, and sometimes hundreds, of entities involved in bringing a high-quality program to air.9

The content within broadcast programs distributed by PTV is typically not “provided by” any one entity, but rather produced in collaboration with numerous production and licensing partners,

Commissioner Jessica Rosenworcel (expressing concern over “Russian government-sponsored programming right here our nation’s capital”); Statement of Commissioner Geoffrey Starks (explaining that “alarm bells went off” after a reported deal to “broadcast programming provided by a Russian state- owned entity for six hours a day during prime morning and evening drivetime in the Kansas City market” and citing letter from Rep. Anna Eshoo and other members of Congress regarding a broadcaster that “aired Russian propaganda in our nation’s Capital without informing listeners that the broadcasts were sponsored by the Russian government”) (internal quotations omitted). 8 Noncommercial educational licensees are prohibited from selling airtime pursuant to 47 C.F.R. § 73.621(d), and such licensees are subject to Section 73.1212 to the extent applicable pursuant to 47 C.F.R. § 73.621(e). 9 Id. at ¶ 4, 10, 30, and 31.

2 sometimes from across the globe, and with a wide variety of funding sources. This content is developed and curated for the American people in accordance with the guiding pillars of the PBS

Editorial Standards & Practices and the PBS Funding Standards & Practices, both readily available to the public.10

The Notice is very unclear about how the heightened disclosure requirement would be interpreted and applied by the Commission in the years to come. As a result, the proposed regulations would potentially result in broadcasters applying the disclosure language so broadly that the public will be desensitized to its intended purpose of warning viewers when foreign governments are paying to spread propaganda over the airwaves. For instance, Invest Northern

Ireland is a regional economic development agency in the United Kingdom that is also registered under the Foreign Agents Registration Act and would therefore qualify as a “foreign governmental entity” under the Commission’s proposal. Invest Northern Ireland has historically provided limited financial support to incentivize filming and production in the region, but such support does not give Invest Northern Ireland any editorial influence whatsoever. PBS distributed “The Woman in White” historical drama series in 2018, which was produced with a small amount of financial support from Invest Northern Ireland. The contribution from Invest

Northern Ireland was transparently disclosed to the public in the program’s credits, as are all entities that financially support production of content distributed by PBS. This psychological thriller was based on an 1860 novel by Wilkie Collins that is one of the earliest examples of modern detective fiction. It is hard to conceive of this program as foreign propaganda in any way, and yet the broad and vague language in the Notice could ensnare it if individual local

10 See Producing for PBS, www.pbs.org/about/producing-pbs. As the policies make clear, editorial independence and transparency are core values that undergird the work of PTV.

3 stations were considered to have indirectly received consideration from Invest Northern Ireland.

Over the years, Invest Northern Ireland has also supported entities that support animation studios in the United Kingdom, which might conceivably be an indirect form of consideration toward the production of educational children’s cartoons. The Commission surely would not want or intend to see its proposed disclosure language on a program like “The Woman in White” or an educational children’s cartoon because the public would then be confused and desensitized to the language if it were to become too common across broadcast media.11

The Notice also leaves wide open the question of archival footage, which public television producers compile from myriad sources when creating in-depth, editorially independent documentaries. For example, award-winning PBS series NATURE has been educating the public about wildlife from across the globe for almost 40 years. In 2018,

NATURE premiered the miniseries “Natural Born Rebels” to explore new studies uncovering the science behind complex animal behaviors that seem rebellious on their surface, such as kleptomaniac crabs and kidnapping macaques.12 The three-hour series included under a minute of archival footage of the Uluru rock and surrounding desert landscape provided free of charge by Tourism Australia, which is registered under the Foreign Agents Registration Act. Strictly speaking, it seems that this footage would constitute a form of valuable consideration provided for free to Thirteen Productions LLC, owned and operated by flagship PBS member station

WNET in New York City. It would be entirely inaccurate to indicate to viewers that this

11 The Commission should specifically exclude tax credits and tax incentives from the types of consideration encompassed by the Notice due to the standard use of such tax structures to support filming and production in many countries and the inability of tax credits to substantively influence the content. 12 See “Natural Born Rebels,” PBS, www.pbs.org/wnet/nature/natural-born-rebels. Note that all of the funding sources and archival footage sources were clearly disclosed on the broadcast and are also disclosed on that webpage.

4 scientifically rigorous documentary about animal behavior is foreign propaganda “paid for or furnished by the government of Australia” as a result of the Commission’s proposed disclosure requirement. It is not unusual for archival footage from across the world to be provided free of charge and to be used at the editorially independent discretion of the producers in a bona fide documentary. As always, the sources of the archival footage are already identified in the production credits of the documentary, making the Commission’s proposal redundant and unnecessary in this context.

Similarly, international entities provide free access to film on location in one-of-a-kind historical sites, which represents another form of theoretical consideration that the Commission needs to consider and exclude from its proposal. For example, PBS distributed “When Whales

Walked: Journeys in Deep Time” in 2019, which followed scientists on a global adventure through the fossil record while making new discoveries about the evolution of iconic beasts. In order to film the unique fossilized tracks from a herd of ancient four-tusked elephants, the producers at Twin Cities PBS needed permission from the Abu Dhabi Department of Culture and

Tourism to access the Mleisa Late Miocene Elephant Trackway Site in Al Dafra, which is located within a highly secure area that requires special permission to visit. This access was provided free of charge for the filming of this important program, but the Abu Dhabi Department of Culture and Tourism had no editorial input or influence over the resulting use of the footage.

Access to unique historical filming sites is an essential ingredient of public television content, and such access can sometimes only be provided by an entity registered under the Foreign

Agents Registration Act. It would be a profoundly unfortunate outcome for the American public if such content came with a government-mandated, prominent warning label that “When Whales

Walked” was “paid for or furnished by the government of the United Arab Emirates” at the

5 beginning and end of the program (not to mention an interruption to theoretically make this disclosure in the middle of the program as well).

PTV also works closely with public broadcasters across the globe to produce trusted and editorially rigorous educational content about world history and world events. Some international public broadcasters have affiliated entities registered under the Foreign Agents

Registration Act, and notwithstanding extensive due diligence, the scope of their involvement in a production is not always discernible months or years later when the program is finally ready for broadcast. For example, the Korean Broadcasting System (“KBS”) in South Korea registered its subsidiary multicast channel KBS America, Inc. fifteen years ago. PBS collaborated closely with KBS in 2019 on the production of “Korea: The Never-Ending War,” an in-depth look at a critical ongoing geopolitical hot spot that documents the post-1953 conflict and its global consequences.13 The documentary was co-produced by PBS member station WETA, along with the BBC, ZED, KBS, and ARK Media. As usual, the producing partners contributed variously to the production budget, with KBS contributing just over 5 percent of the budget. The majority of the program’s funding came from PBS, the National Endowment for the Humanities, the BBC, and the Arthur Vining Davis Foundation. All of this was transparently disclosed using standard

PTV language on the broadcast and all other platforms where the content appeared. WETA’s partnership with bona fide international public broadcasters is critical to the production of in- depth content about major international events and world history like the Korean War, and it

13 See “Korea: The Never-Ending War,” PBS, www.pbs.org/weta/korea-never-ending-war.

6 would detract immeasurably from the credibility and trusted nature of that content to incorrectly suggest that the program includes foreign propaganda in connection with that content.14

Lastly, the list of entities registered under the Foreign Agents Registration Act is full of many reputable U.S. law firms that presumably represent international clients on occasion.

Those same law firms frequently provide pro bono or reduced fee legal services to public television producers, and they have also provided financial underwriting in the past as well. For example, PBS distributed “Constitution USA with Peter Sagal” in 2013, a documentary miniseries about the Constitution in modern America and how it unites and divides us as a nation. The program’s funding sources were prominently disclosed in connection with the broadcast and continue to be prominently disclosed on the program’s webpage.15 Just over one percent of the program’s funding came from Baker & McKenzie, a widely respected U.S. law firm that also happens to be registered under the Foreign Agents Registration Act. Similarly, award-winning PTV independent film series Independent Lens and POV regularly acquire films from filmmakers that receive pro bono or reduced fee legal services from Alston & Bird, Holland

& Knight, Sidley Austin, White & Case, and K&L Gates, all of which are registered under the

Foreign Agents Registration Act. This includes films like Peabody Award winner and Academy

Award nominee “Minding the Gap” about skateboarding, domestic violence, and manufacturing blight in the Rust Belt, and “Trials of Muhammad Ali” about the extraordinary and complex life of the legendary athlete outside the boxing ring. These law firms helped negotiate production

14 Similarly, the Japan Broadcasting Corporation (NHK) is the renowned and reputable public broadcaster in Japan, with which PTV frequently works to distribute important content, and while NHK is guaranteed editorial independence and impartiality from the Japanese government by its founding legislation, a U.S. based production subsidiary – NHK Cosmomedia America Inc. – was registered under FARA in 1991. The source of content distributed by PTV from international public broadcasters such as KBS and NHK is already made abundantly clear to the audience. 15 See “Constitution USA with Peter Sagal,” PBS, www.pbs.org/tpt/constitution-usa-peter-sagal.

7 agreements, provided production legal services, and wrote fair use opinion letters. These services are generally provided pro bono or at a reduced fee, which could constitute a form of indirect consideration. There is no indication that these law firms were acting in their capacity as a registered agent, and to do so in this context would likely be unethical. In any case, it would be unreasonable to compel stations or producers to inquire of law firms about the capacity within which they provide pro bono services, particularly for future re-broadcasts of evergreen existing programs, when such services by their very nature are for the public good. These law firms are of course not “providing programming to U.S. broadcast stations,” but that is not a reassurance when the overbroad Notice encompasses “any form of payment or consideration, either directly or indirectly.”16

Ultimately, the Notice mistakenly assumes that content funded in part by entities affiliated with foreign governments or that was produced in part with something of value provided by such an entity is always a form of propaganda. The murder mystery drama, educational children’s cartoons, rigorous science programs, historical documentaries, and independent films distributed by PTV are not propaganda. Moreover, these programs have long gone far above and beyond existing FCC requirements to embrace a core principle of transparency by disclosing all of the dozens, and sometimes hundreds, of funders, partners, sources, and contributors that made each program possible. It would be a huge disservice to the

American public to misleadingly label such content as having been “provided by” a foreign government, even when modest funding, location access, film footage, or other valuable consideration is provided by an entity that for other reasons is registered under the Foreign

Agents Registration Act. The independent editorial judgment of PTV in developing and curating

16 Notice at ¶ 22, 31.

8 the most trusted content in the country has a proven track record of over 50 years that necessitates a more thoughtful and tailored approach by the Commission.17

II. PTV Urges the Commission to Provide Flexibility to Noncommercial Licensees by Supplementing Appendix A of the Notice with Section 73.1212(j)(5).

The Commission should supplement Appendix A of the Notice with the following proposed Section 73.1212(j)(5):

“Notwithstanding the foregoing, noncommercial educational licensees may exercise their discretion to identify foreign governmental entity sponsorships through an announcement at the time of the broadcast in any reasonable manner.”

Given the extensive history of public television stations going far above and beyond

Commission requirements with respect to transparency and disclosures, unique treatment is fully warranted in this context.18 For all of the examples in Section I, public television stations publicly disclosed the role of each entity that contributed in any way to the production. As a recent Pew Research Center study found, transparency is a key determinant of audience trust.19

Transparency has been a core value of PTV for decades, and PTV has earned its place as the most trusted institution in America by trusting its audience to evaluate for themselves the

17 See Press Release, PBS, For 17th Consecutive Year, Americans Name PBS and Member Stations as Most Trusted Institution, www.pbs.org/about/about-pbs/blogs/news/for-17th-consecutive-year-americans- name-pbs-and-member-stations-as-most-trusted-institution (Feb. 10, 2020). 18 Public television stations account for over 90 percent of all noncommercial educational television licensees. Moreover, noncommercial educational licensees are uniquely prohibited from selling airtime pursuant to 47 C.F.R. § 73.621(d). 19 See Jeffrey Gottfried, Mason Walker, and Amy Mitchell, Americans See Skepticism of News Media as Healthy, Say Public Trust in the Institution Can Improve, Pew Research Center, www.journalism.org/2020/08/31/americans-see-skepticism-of-news-media-as-healthy-say-public-trust-in- the-institution-can-improve (Aug. 31, 2020).

9 producers, funders, and other entities that make the content possible.20 This is surely why the

Knight Foundation and Gallup recently found that the public believes PBS to be the most unbiased and most accurate source of news and information in the country.21 Noncommercial educational television licensees (the vast majority of which are PTV stations) have earned the right to disclose contributions from foreign entities in a manner that they determine best serves the audience, including as part of the production credits, as already occurs. This approach would align with long-standing Commission precedent detailed herein and would greatly improve the narrow tailoring of the proposed regulation to best serve the government’s interests in this proceeding.22

The Commission has a long history of tailoring regulations to noncommercial educational licensees in similar circumstances. The Commission can require transparency without dictating precise wording or placement to NCE stations, just as it has relied on NCE licensees for decades to serve the public without the same specific requirements as commercial stations. For example, in 1991, the Commission adopted a fittingly light-touch regulatory approach for noncommercial stations under the Children’s Television Act. The Commission found that the recordkeeping and reporting requirements were unnecessary given the commitment that noncommercial stations had

20 See PBS Editorial Standards & Practices, www.pbs.org/about/producing-pbs/editorial-standards (“transparency requires that producers disclose to the audience all sources of funding for the production and distribution of content”); PBS Funding Standards & Practices, www.pbs.org/about/producing- pbs/funding-standards (“Funders of PBS content cannot be anonymous … PBS ensures transparency by requiring that funders be disclosed for PBS content distributed on all platforms”). 21 See Gallup Inc. and Knight Foundation, Perceived Accuracy and Bias in the News Media, 15–21, www.knightfoundation.org/reports/perceived-accuracy-and-bias-in-the-news-media (2018). 22 At a bare minimum, the Commission should provide noncommercial educational licensees with discretion on wording the enhanced disclosure to permit better alignment with the long-standing publicly available PBS Funding Standards & Practices, which would permit language such as “funding provided by” or “made possible by,” instead of “paid for” or “furnished by.”

10 demonstrated to serving children.23 The Commission also determined that noncommercial licensees should be exempt from public information initiatives, such as identifying programs for program guides and listings information.24 The current Notice at issue addresses a strikingly similar topic, given that both are related to public disclosures to ensure that programming is in the public interest and that the public is informed. In addition, both are related to areas in which

PTV has a proven track record with decades of exemplary public service. The language that the

Commission used in 1991 and reaffirmed in 1996, 2004, and 2018 is remarkably resonant with the present Notice:

“In light of … the commitment noncommercial stations in general have demonstrated to serving children, we believe that such obligations are inappropriate. We conclude that noncommercial broadcasters’ substantial level of compliance with the intent of the Act as evidenced by noncommercial stations’ delivery of high- quality children’s programming would not be substantially improved by application of the particular record-keeping and reporting obligations that we have applied to commercial stations. We believe that we can accomplish the programming renewal review of noncommercial stations required by the Act by means of less detailed administrative requirements.”25

Noncommercial stations have demonstrated a similar level of commitment to transparency for over 50 years as evidenced by a long history of clear disclosures on PTV content, which warrants similarly “less detailed” requirements in the context at issue in the

Notice in order to accomplish the Commission’s goals. As the Columbia Journalism Review recently wrote, “Public broadcasting is the standard-bearer for TV documentaries … Anyone

23 Policies and Rules Concerning Children’s Television Programming, Report and Order, 6 FCC Rcd 2111 (1991), recon. granted in part, 6 FCC Rcd 5093 (1991) [hereinafter “1991 Order”]. 24 Policies and Rules Concerning Children’s Television Programming, Report and Order, 11 FCC Rcd 10660 (1996). See also 47 C.F.R. § 73.673. 25 1991 Order at ¶ 45 (emphasis added).

11 who gives more than one dollar to finance a film is vetted, and producers must disclose any real or perceived conflicts that could have the appearance of influencing content.”26 Just as in the prior children’s television proceedings, noncommercial broadcasters’ substantial level of compliance with the intent of the Notice, as evidenced by their delivery of editorially independent and transparent programming of the highest integrity, “would not be substantially improved by application of the particular” requirements proposed in the Notice.

Unique treatment of noncommercial educational stations is not limited to the children’s television context. There are myriad contexts in which the Commission saw fit to adopt tailored regulations that entrust noncommercial stations with broader flexibility to serve the public. For instance, during the 2009 digital television transition and again in 2014 when setting the rules for the repacking process to follow the incentive auction in 2017, the Commission found that noncommercial stations should have greater flexibility with respect to consumer education.

Noncommercial stations were given significantly greater discretion and latitude to implement viewer notifications with respect to both of those important transitions.27 Just as the Commission did in 2009 and 2014, the Commission in 2020 should give noncommercial stations greater discretion and latitude to inform the public about the producing partners, funders, and other entities that make the development of PTV content possible. As it has for decades, and did with all of the examples described in Section I, PTV will continue to transparently inform the public

26 Danny Funt, “Television is making more documentaries than ever—but skipping the journalism,” Columbia Journalism Review, www.cjr.org/special_report/documentary-film-editorial-independence.php (Oct. 1, 2020). 27 In the Matter of Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions, Report and Order, GN Docket No. 12-268, FCC 14-50 (rel. June 2, 2014).

12 about the many entities and individuals that contribute in any way to bringing the highest quality noncommercial content into existence.

Lastly, in addition to the closely analogous parallels to children’s television reporting and public information requirements, along with consumer education and viewer notifications for the

DTV transition and repacking processes, the Commission has also adopted NCE-specific regulations in many other contexts. For example, the Commission has tailored its public inspection file rules for noncommercial licensees, which have requirements for informing the public that are notably distinct from commercial licensees.28 In particular, noncommercial public inspection files all include donor lists pursuant to 73.3527(e)(9), which obviate the need for the proposed 73.1212(j)(4) to apply to noncommercial stations. Noncommercial stations are also prohibited by statute from interrupting programming to identify funding sources, which would appear to override and nullify the proposed 73.1212(j)(3) in the context of PTV.29 The

Commission can solve these issues and hew to its long-standing practice of adopting regulations that specifically provide noncommercial stations with greater flexibility and latitude by supplementing the proposed regulations with the language of 73.1212(j)(5) recommended above.30 In addition, PTV urges the Commission to preface subsections 73.1212(j)(2), (3), and

(4) as only applicable to commercial licensees. These adjustments would have the added benefit of significantly strengthening the Commission’s First Amendment narrow tailoring analysis as well. As the Supreme Court has explained, narrow tailoring requires that the means chosen must

28 See 47 C.F.R. § 73.3527. 29 See 47 U.S.C. § 399A(b). The Commission needs to exempt noncommercial educational licensees from the “every sixty minutes” requirement in the proposed section 73.1212(j)(3) due to the longstanding statutory prohibition on interrupting programming. 30 The Commission has also recognized the valuable and important public service provided by NCE licensees by providing the low-power translators licensed to such entities with unique must-carry rights that are not afforded to commercial stations. See 47 C.F.R. § 76.56(a).

13 not “burden substantially more speech than is necessary to further the government’s legitimate interests.”31

While the Commission may well have a legitimate interest in making sure viewers are informed when foreign governmental entities are purchasing airtime to influence them, the

Commission’s Notice burdens substantially more speech than necessary to advance this goal.32

The disclosure requirement, as currently proposed, could be applied in a manner that would sweep up all content where any form of consideration is provided by foreign governmental entities, even when such consideration in no way amounts to paying for airtime (as demonstrated by PTV’s examples above). Therefore, this requirement is not narrow enough to conform with the First Amendment, even under intermediate scrutiny. In Zauderer v. Office of Disciplinary

Counsel, for example, the Supreme Court explained that while factual disclosure requirements impose “more narrowly on [one’s] interests than do flat prohibitions on speech,” such requirements nonetheless violate the First Amendment when they are unduly burdensome.33 The

Court held that a speaker’s rights would be adequately protected only “as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.”34 The deception that the Commission is attempting to address here involves foreign governmental entities influencing audiences without their knowledge. As such, the disclosure

31 Turner Broad. Sys. v. FCC, 512 U.S. 622, 661-62 (1994) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989)). Stated another way, the government “may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” Ward at 799. 32 See Frisby v. Schultz, 487 U.S. 474, at 485 (1988) (“A statute is narrowly tailored if it targets … no more than the exact source of the ‘evil’ it seeks to remedy”). 33 471 U.S. 626, 651 (1985). Although Zauderer was decided in the commercial speech context, intermediate scrutiny was applied. 34 Id.

14 requirement needs to be limited to this specific issue. Granting NCE stations the discretion to decide when and how such a disclosure would be warranted is entirely appropriate based on the

PTV media landscape and the details presented above.

III. At a Minimum, the Commission Should Adjust the Proposal to Be Appropriately Narrowly Tailored.

In the event that the Commission declines to adopt the NCE-specific flexibility and discretion recommended in Section II, then the Commission should at a minimum adopt the following series of proposals to more appropriately tailor the proposed regulations to accomplish the desired goal without overbroad language and the potentially harmful unintended consequences that could result.

First and foremost, the Commission should tailor the scope of countries covered by the proposed regulation. Given that the Commission is already relying on the lists of entities developed by the Department of Justice and the Department of State, PTV recommends that the

Commission filter those entities through the list of active U.S. sanctions developed and maintained by the Department of the Treasury. The Office of Foreign Assets Control (“OFAC”) within the Department of the Treasury maintains a public and easily accessed list of active U.S. sanctions programs in foreign countries to protect national interests and priorities.35 If the

Commission uses the OFAC list to filter the definition of “foreign governmental entity” in this proceeding, then all of the real-world examples of foreign propaganda cited throughout the

Notice would still be subject to the proposed rules. This tailoring of the proposal would appropriately exclude the examples in Section I in which PTV collaborated with entities from

35 See Sanctions Programs and Country Information, U.S. Department of the Treasury, https://home.treasury.gov/policy-issues/financial-sanctions/sanctions-programs-and-country-information.

15 close U.S. allies, such as South Korea, Australia, and the United Kingdom, while still capturing all of the examples cited in the Notice by the Commission (including both China and Russia).36

Given that the Commission’s goal is to label content from countries “who may wish to do us harm,” it is essential that the definition of “foreign governmental entity” be tailored to align with carefully pre-determined countries whose interests are directly at odds with the United States.37

Second, the Commission should narrow the rule’s “in whole or in part” trigger. PTV recommends that the Commission focus solely on programs that are provided in whole by a foreign governmental entity, rather than also sweeping in all those programs where material is provided “in part.” Contrary to the implicit suggestion within the Notice, a single broadcast program may well be produced through collaborations among dozens of entities. The reality of television production, especially for documentary and other educational programs regularly broadcast on PTV stations, is that footage, clips, photographs, music, and other material for a program are secured from or otherwise provided by an enormous number of sources. Rarely if ever is the content making up any such program provided by a single entity. Most often any one entity’s contribution is minimal, such that an entity which provides material “in part” could not have reasonably exercised any control over the editorial content of the program.

If the Commission nonetheless opts for a rule triggered even where content is provided only “in part,” then it is critical to adopt a reasonable percentage threshold as an element of the

“in part” test to determine whether the specific disclosure is required. For content subject to enhanced disclosure to actually constitute foreign propaganda, the Commission should at a minimum narrow its proposed rule to focus on content that comes in large part from a single

36 See Notice at n.4, n.40, and n.42. 37 Id. at 43.

16 source, rather than the bona fide educational content of PTV that is developed through wide- ranging, sometimes international, collaborations. The Commission should at least only require the specific disclosure proposed in the Notice if a foreign governmental entity provided a majority (over 50 percent) of the production funding or footage used in the content. This tailoring of the proposed rule would appropriately exclude the examples in Section I above, while continuing to include all of the problematic examples cited throughout the Notice.

Third, the Commission should add a second prong to the “foreign governmental entity” test that narrows the scope of the rule to entities that provide the consideration or programming in order to further a propagandizing intent. This would effectively narrow the proposed

73.1212(j) to focus on material broadcast consistent with 73.1212(d), not broadly with

73.1212(a), given that propagandizing intent necessarily goes to “political broadcast matter or any broadcast matter involving the discussion of a controversial issue of public importance” as presently regulated by subsection (d).

This new prong would still encompass all of the examples of blatant propaganda described in the Notice, and it would better align the Commission’s proposal with the memorandum distributed by the FCC Office of General Counsel and Office of Economics and

Analytics (“OGC and OEA”), dated November 19, 2020, regarding the “Legal Framework and

Considerations for Regulatory Impact Analysis.” The Notice as written would impose due diligence and implementation costs on broadcasters that are far higher than necessary to achieve the narrow purpose of shining a light on foreign propaganda. To accomplish the goal that the

Commission sets for itself in the Notice, and to align with the recent guidance by the OGC and

OEA, the Commission should adopt this proposed second prong that only encompasses a

“foreign governmental entity” that the licensee determines in good faith to have a

17 propagandizing intent through its contribution. Any entities that were determined not to have such an intent would of course still be disclosed subject to the long-standing sponsorship identification rules, just not the newly proposed enhanced rules that mandate precise language for calling special attention to foreign propaganda.

Fourth, the Commission should adopt a safe harbor period of time leading up to the broadcast when the FARA list no longer needs to be checked. PTV content often takes several years to develop, during which time the FARA list would seem to change frequently. Just in the past six weeks, PTV has noted 19 changes to the FARA list, with 16 new entities added and 3 entities removed in that time. It is essential out of practical necessity that PTV producers can lock content well in advance of broadcast. Therefore, the Commission should specify that producers and distributors no longer need to check the list in the final 90 days before broadcast.

In addition, the Commission should make clear that the FARA list only needs to be checked in advance of the premiere of new television programs and does not need to be checked for any subsequent repeats. Requiring a review of production sources and support to compare with the latest FARA list for every rebroadcast of every program would impose a crushing burden on

PTV and could hamper its ability to provide robust educational programming consistent with its public service mission. It is essential that the Commission apply the proposed regulations only on a going forward basis for newly produced programming, given the enormous back catalog of evergreen PTV content.

Lastly, the Commission should further tailor the proposed regulations by removing

“foreign mission” from the definition of “foreign governmental entity” because the Department of State does not maintain any reasonably accessible public record of entities registered as foreign missions. The reasonable diligence requirements that may be imposed by the

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Commission do not extend to extensive research of the voluminous Federal Register. At a minimum, if the Commission intends to subject broadcasters to a regular review of foreign mission designees, the Commission should publish and maintain a centralized, publicly available list of foreign missions. It would be far less costly for a single entity, such as the Commission, to create and update such a list rather than to subject every individual licensee to an obligation to separately scrutinize the Federal Register archives and continuously monitor decentralized listings throughout the Federal Register.

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CONCLUSION

PTV supports the Commission’s goal of shining a spotlight on propaganda that potentially hostile foreign governments furtively attempt to disseminate over the airwaves. The proposed rule articulated in the Notice, however, casts a much broader net that could force public broadcasters to mislabel innocuous content, such as various science and nature documentaries, as partly “paid for or furnished by” a foreign government. To avoid these harmful unintended consequences, PTV urges the Commission to afford noncommercial educational licensees flexibility in the language and manner of any heightened disclosure. Alternatively or in addition, the Commission should narrow the scope of the proposed rule so that it is tailored to specifically enhance disclosure of foreign propaganda without needlessly burdening free speech.

Respectfully submitted,

/s/ Lonna Thompson /s/ William Weber Executive Vice President, Chief Operating Associate General Counsel and Vice Officer, and General Counsel President, Government Affairs AMERICA’S PUBLIC TELEVISION STATIONS Talia Rosen 1225 South Clark Street, Suite 1425 Assistant General Counsel and Senior Arlington, VA 22202 Director, Standards & Practices Brian Westley Senior Counsel, Standards & Practices PUBLIC BROADCASTING SERVICE 1225 South Clark Street Arlington, VA 22202

December 23, 2020

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