Eriq Gardner, The Hollywood Reporter, May 7th 2019
A first-of-its-kind decision from a Florida federal judge rejects reasoning from RM Broadcasting on why it shouldn’t have to register.
The United States Justice Department has prevailed in a lawsuit against RM Broadcasting, the owner of a Washington, D.C.-based radio station that is broadcasting Sputnik International. On Tuesday, a federal judge in West Palm Beach, Fla., granted a motion for judgment on the pleadings to the DOJ in a groundbreaking case over the Foreign Agents Registration Act.
For more than eight decades, FARA has loomed over international media organizations. Originally adopted by the United States Congress in 1938 to combat Nazi propaganda, FARA requires those acting as agents for foreign powers to register with the U.S. government, disclose their relationships and provide reports on financial activity.
What media organizations must register? Al Jazeera? The BBC?
It’s very unclear.
Although the federal government has issued dozens of advisory opinions over the years and gone to court on occasion against various individuals and lobbying groups, there’s been very little enforcement of FARA against those in the media since the early days of the Cold War back in the 1950s. But that all changed in the aftermath of the 2016 presidential election upon word of Russian interference.
After passage of the John S. McCain Defense Authorization Act, which went into effect this past August, the Justice Department sent letters to several television and radio stations with foreign ties with word of new foreign registration obligations. Most of those outlets, including Russia Today, complied with the directive even amid vociferous objection. The actions prompted new discussion of FARA, which many critics see as broad and vague and possibly unconstitutional.
One individual went to court over the Justice Department’s registration demands. Arnold Ferolito, a 76-year-old American who worked in the television industry for decades, says he came out of retirement to found RM Broadcasting. He acknowledges selling airtime to Rossiya Segodnya, the Russian Federation government-owned news agency that operates Sputnik, but maintains that “this commercial transaction in no way created an agency relationship.”
U.S. District Court Judge Robin Rosenberg took up his objections as well as the Justice Department’s arguments on a cross-motion and has now decided to favor the DOJ’s side.
“RM Broadcasting contends throughout its Complaint and its Motion for Judgment on the Pleadings that it simply buys and resells radio airtime and has resold some of that airtime to Rossiya Segodnya,” writes the judge. “RM Broadcasting disclaims that it broadcasts any radio programs. However, under the explicit language of the Services Agreement that the Court has quoted above, RM Broadcasting is required to do much more than resell radio airtime to Rossiya Segodnya. Notably, RM Broadcasting is required to ‘broadcast/transmit Radio Programs.'”
The judge says that RM “satisfies the definition of an agent of a foreign principal by agreeing, though the Services Agreement, to act in a manner by which it qualifies as an agent of a foreign principal.”
The opinion (read here) goes on to reject the argument that RM isn’t an agent through a disclaimer in its agreements with the Russians and points to “control” as being what is ultimately determinative of an agency relationship. Rosenberg shrugs off RM’s suggestion that it had no knowledge of the content of the Sputnik programs nor had any input to advance the interests of Russia.
“This Court acknowledges, as have others, that the language of FARA is broad,” concludes the judge. “Nevertheless, the Court must apply the statutory language as written; it is not for the Court to rewrite the statute.”
The ruling will bolster the Justice Department as it seeks to compel others to register as foreign agents. The decision may also lead to retaliation. For example, Vladimir Putin’s Russia has already labeled Voice of America and eight other U.S.-backed news stations as “foreign agents” and threatened to do the same against CNN and other prominent America-based outlets.