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New Federal Law Imposes Reporting Requirements for U.S.-Based Foreign Media Outlets

By Barry Skidelsky, Esq.

The recently enacted John MCain National Defense Authorization Act for fiscal year 2019 (NDAA) adds §722 to the Communications Act. It requires the filing of reports with the Federal Communications Commission (FCC) by statutorily defined U.S. based foreign media outlets, including details of their legal structures and relationships, as well as of their funding sources.

All media outlets in the United States owned or controlled by foreign principals (see definitions of foreign principals and agents in the Foreign Agents Registration Act or FARA, 22 USC § 611 et seq.), including those physically located outside the U.S. who produce or distribute video programming transmitted (or intended for transmission) by a multi-channel video program distributor (MVPD) within the U.S., such as cable system operators or satellite service providers, should confirm their obligations under (and timely comply with) the new reporting obligations.

The new law responds to concerns that certain foreign governments and organizations have been using FARA's journalism or news reporting exception, which allows avoidance of otherwise applicable federal agent registration requirements that relate back to pre-World War II fears of Nazi Germany, Fascist Italy, and the Soviet Union, as a mask or subterfuge to instead promote their own political agendas and to otherwise unfairly influence the American public.

Some critics of the new law, while nonetheless acknowledging legitimate American concerns, cite First Amendment free press implications and raise related fears that President Trump often seems hell-bent on labeling as "fake news" all coverage by any domestic or foreign media with which he disagrees.

Prompted by more serious and potentially subversive threats from, inter alia, Russia's RT America, China's Central Television, and Qatar's Al Jazeera -- the last of which was recently designated by the Department Of Justice (DOJ) under FARA as a foreign agent, and which faces calls for investigation into its positive promotion of terrorist organizations, such as Iranian-sponsored Hezbollah and Hamas, as well as other foreign state sponsored anti-Semitic and anti-America propaganda -- the new law effectively adds the FCC (under NDAA) to the DOJ (under FARA) as another way for our federal government to require reporting from, and to monitor domestic influence by, U.S. based foreign media outlets.

The deadline for affected media outlets to submit their first reports is October 12, 2018, with subsequent reports due no less frequently than every 6 months thereafter. In turn, the FCC will make those reports available to the public and summarize them in the FCC's own periodic reports to Congress. For more information, see FCC Public Notice DA 18-911 (rel. 9/4/18) at https://docs.fcc.gov/public/attachments/DA-18-911A1.pdf or contact the author of this note.

Barry Skidelsky is a NYC based attorney and consultant with a diverse national practice and expertise in entertainment and media. Currently Chair of EASL, Barry is a former broadcaster, former chair of the Federal Communications Bar Association's NY chapter, and former chair of EASL's Television and Radio Committee. He can be reached at bskidelsky@mindspring.com or 212-832-4800.

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