Foreign media broadcasters get mixed signals on new transparency rules

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(Russian Presidential Press and Information Office/Anadolu Agency/Getty Images)

A new report to Congress marks one year of disclosures by foreign media outlets under new rules intended to increase transparency of foreign propaganda and influence operations aimed at the U.S. — but they may not be having the effect lawmakers had hoped for.

Producers and distributors of video programming for foreign media outlets that may otherwise fall under an exemption to the Foreign Agent Registration Act (FARA) are required to submit information on their structure to the Federal Communications Commission (FCC) every six months pursuant to the National Defense Authorization Act passed last year.

As of when the FCC issued its second semi-annual report to Congress and weeks after foreign media outlets were required to submit their disclosures to the FCC, only two outlets’ disclosures have been made public. Both outlets submitted their disclosures following the April 12 deadline after inquiries from the FCC, according to the agency’s report to Congress.

The disclosures provide scant information about the actual financial and leadership structures of the foreign media outlets.

One of the two foreign media outlets that have reported to the FCC is Anadolu Agency, the official government-subsidized news agency of Turkey, which has been criticized by some as pro-government “propaganda.” Anadolu Agency’s complete disclosure to the FCC — legally required to include the legal structure, funding and nature of their relationship with a foreign principal — takes the form of a five-sentence email.

While the new rules were intended to increase the transparency of foreign operations exploiting FARA’s exemption for media and journalistic outlets to skirt disclosing requirements, that does not appear to be how it has played out. Instead, at least one entity has abandoned FARA for the less stringent requirements of the FCC’s foreign media rules.

MHz Networks was registered as a foreign agent of government-owned news outlets under FARA until it assigned those contracts to its nearly indistinguishable wholly-owned subsidiary, MHz News, terminating its FARA registration and registering the subsidiary as a foreign-owned media outlet with the FCC shortly after the new rules went into effect. FARA disclosures attribute the shift to “corporate restructuring of MHz for business reasons.”

Under the FCC’s disclosure regime, MHz is subject to significantly less stringent disclosure requirements than under FARA. While FARA filings are notorious for being riddled with errors or omissions, they include extensive information about financial arrangements and activities to DOJ. The FCC’s foreign media disclosure requirements are even more open to manipulation, seemingly requiring little as a few lines in an email to the FCC.

Discrepancies between the information listed in MHz’s FARA disclosures to DOJ and FCC records raise additional questions.

MHz News broadcasts German and French government-owned stations, but claims neither news network “is a government of a foreign country or a foreign political party and neither is controlled by a foreign government or political party,” according to FCC records. MHz News instead claims it filed the report “in the interest of transparency and out of an abundance of caution.” However, MHz’s FARA disclosure attests that France 24 is “controlled by a foreign government, foreign political party, or other foreign principal.”

MHz Networks was previously Russia Today’s broadcaster before a falling out in 2018, shortly before MHz registered under FARA in relation to its contracts with other media operations. It has also broadcast other foreign government-tied programming, including China Global Television Network. CGTN was one of the state-run Chinese media outlets — alongside Xinhua News Agency — DOJ ordered to register under FARA in 2018 following mounting pressure by lawmakers and government officials.

Beyond MHz and Anadolu Agency, no other outlets have yet to submit disclosures to the FCC under its new foreign media rules.

What could happen to foreign media outlets that misreport their funding structure or fail to disclose information entirely?

“In reality, nothing will happen for some time,” University of Minnesota media law professor Christopher Terry told CRP. “The FCC — like all administrative agencies — moves like a slug in molasses.”

Conceptually, the penalty for non-compliant outlets would be civil but the FCC’s jurisdiction is limited when the outlets at issue are foreign entities operated outside the U.S.

Uncertainty around the issue may be further complicated by a federal judge’s decision handed down just days before the FCC’s report to Congress, DOJ’s first successful civil enforcement action in a FARA case since 1991.

In the May decision, U.S. District Court Judge Robin Rosenberg found that a Florida-based company called RM Broadcasting LLC is required to register as a foreign agent due to its relationship with Rossiya Segodnya, the Russian government’s media enterprise that owns Sputnik International and was created by Vladimir Putin to advance Russia’s interests abroad.

RM Broadcasting’s owner argued that the station simply buys and resells airtime to the Russian government-owned media agency, but the judge concluded that the services agreement requires RM Broadcasting to do more than that.

Because Rossiya Segodnya “may refuse to pay” RM Broadcasting “in the event of the unsatisfactory operation” and is only required to pay when they are provided “properly” and “in full” under the services agreement, the judge found that the Russian government-owned media enterprise has “control” due to their “power, directly or indirectly, to determine the policies or the activities” of RM Broadcasting. By engaging “directly or indirectly in the publication or dissemination” of broadcasts, RM Broadcasting is a “publicity agent” subject to FARA registration under federal law, the judge concluded.

This language may sound familiar to those who have followed contentious battles between DOJ and entities playing various roles in the broadcast of Russian propaganda.

FARA registration records for Reston Translator LLC, a Virginia-based radio broadcaster of Sputnik programming, outline a litany of similar arguments about the broadcaster serving as a publicity agent.

Unlike RM Broadcasting, which chose to sue DOJ, Reston Translator LLC chose to register with DOJ in November 2017 despite adamantly maintaining that they should not be required to do so.

Other broadcasting operations have echoed similar sentiments about registering “out of an abundance of caution.” T&R Productions LLC, a Washington, D.C.-based firm that produces English-language programming for the RT Network, also registered in November 2017. RTTV America, Inc, which produced content for RT, registered under FARA the following month. In February 2018, U.S.-based Russian news producer RIA Global LLC registered as a foreign agent.

The role of FARA and other foreign influence disclosure regulations in the foreign media space continues to be hotly contested. Potential repercussions like retaliatory measures restricting American media abroad, a risk heightened by the vague language used in current rules opening the door for a variety of different interpretations and applications, raise the stakes even higher.

“This Court acknowledges, as have others, that the language of FARA is broad,” the judge noted in last week’s opinion. “Nevertheless, the Court must apply the statutory language as written; it is not for the Court to rewrite the statute.”

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