The Federal Communications Commission (FCC) has released a public notice setting October 12, 2018 as the initial deadline for “United States-based foreign media outlets” to file reports with the FCC. The reports are required pursuant to the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (NDAA) and must contain certain specified information. The question whether an entity is subject to the NDAA’s reporting obligation requires a multi-faceted inquiry, and we believe that the universe of entities that must file reports with the FCC is likely to be relatively limited. However, the FCC’s announcement provides a timely reminder for all entities with foreign ties to assess not only whether they must file reports under the NDAA, but also whether they may be subject to separate registration requirements under the Foreign Agents Registration Act (FARA), which the Department of Justice (DOJ) has recently taken a greater interest in enforcing against foreign-owned, controlled, or funded media outlets, most recently including Chinese state-run Xinhua News Agency and China Global Television Network.

Entities required under the NDAA to submit reports to the FCC must provide the agency with the following:

  1. The name of the outlet; and
  2. A description of the relationship of such outlet to the foreign principal of such outlet, including a description of the legal structure of such relationship and any funding that such outlet receives from such principal.

The FCC reporting requirement applies to those entities that produce or distribute video programming that is intended for distribution by a multichannel video programming distributor to consumers in the United States and that would be required under FARA to register as a foreign agent, but for an exemption for certain media outlets contained in that statute. Determining whether a media outlet must file reports with the FCC under the NDAA therefore requires an analysis of multiple issues, some of which may be easy to resolve and others of which are more complex.

Media outlets are likely familiar with the definitions of “video programming” and “multichannel video programming distributor” under the Communications Act. That Act defines “video programming” as “programming provided by, or generally considered comparable to programming provided by, a television broadcast station.” A “multichannel video programming distributor” includes “a person such as, but not limited to, a cable operator, a multichannel multipoint distribution service, a direct broadcast satellite service, or a television receive-only satellite program distributor, who makes available for purchase, by subscribers or customers, multiple channels of video programming.” Outlets can likely easily determine whether their programming falls within these statutory definitions.

The inquiry into whether an outlet is covered by the NDAA’s filing obligation, however, does not stop there. The outlet must also be an agent of a “foreign principal,” which FARA defines broadly to include not only “a government of a foreign country and a foreign political party” (as the FCC explains in the public notice), but also persons and organizations outside of the United States and corporations and other entities that are organized under the laws of, or have their principal place of business in, a foreign country. Further, to be an “agent” of a foreign principal, an outlet must have an agency relationship with the foreign principal and directly or indirectly engage in one of the following activities in the United States for or in the interest of the foreign principal:

  1. Engage in political activities;
  2. Act as a public relations counsel, publicity agent, information-service employee, or political consultant;
  3. Solicit, collect, disburse, or dispense contributions or other things of value; or
  4. Represent the interests of the foreign principal before any agency or official of the United States government.

Although these activities might appear at first blush unlikely to cover those conducted by media outlets, the DOJ last fall took the view that the broadcast of programming can fall within their scope in requiring RT America (formerly known as Russia Today) to register under FARA, and, as noted above, just this week ordered two Chinese media organizations to register.

Moreover, even if an outlet satisfies these criteria to be an “agent” of a “foreign principal” under FARA, it must register with the FCC only if it also falls within FARA’s exclusion of certain media outlets from FARA’s own registration requirements. That exclusion applies to a news or press service that meets the following criteria:

  1. Is organized in the United States or its territories;
  2. Is owned at least eighty percent by citizens of the United States;
  3. Has only United States citizens as officers and directors; and
  4. Is not owned, directed, supervised, controlled, subsidized or financed by – and does not have any of its policies determined by – any “foreign principal” or any “agent of a foreign principal” that is otherwise required to register under FARA.

Only entities that meet all of these requirements must file reports with the FCC by October 12. Although we believe that the number of such entities likely to be relatively small, the effectiveness of the NDAA reporting requirement and the recent increase in attention paid by DOJ to FARA registration issues suggests that all entities with foreign ties would be wise to assess not only whether they must file reports under the NDAA, but also whether they may be subject to FARA’s own registration requirements. Wiley Rein has extensive experience with respect to FARA’s registration and the NDAA in general, and stands ready to assist clients in navigating questions regarding both the NDAA and FARA.

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