Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554

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: ii • 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. iv 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 v 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

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