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How deeply must a U.S. citizen be involved in the spread of foreign propaganda for that citizen to become a foreign propagandist himself? That’s a question at the center of a lawsuit filed against the Department of Justice last week by a company helping a Russian media outlet air its programming in the U.S.
The media outlet is Sputnik, which the U.S. intelligence community has alleged was a major component of the Russian government’s U.S. propaganda efforts leading up to the 2016 election. DOJ determined last year that Sputnik qualifies as a “foreign principal” under the Foreign Agents Registration Act—over Sputnik’s vehement objections—meaning that U.S. individuals or entities that broadcast its programming stateside must register as foreign agents.
One already has; Reston Translator, a company that broadcasts Sputnik programming in the D.C. area, registered under protest last year.
A second company, eyed by the DOJ in December, is fighting back.
RM Broadcasting, a one-man operation based in Jupiter, Florida, is suing the DOJ to avoid registering as a foreign agent. The case has the potential to shape the enforcement of foreign agent laws as U.S. authorities step up that enforcement against foreign—and Russian—media organs in particular.
Arnold Ferolito, who runs RM Broadcasting, buys airtime from FCC-licensed radio stations, then sells that airtime to content creators. Unlike Reston Translator, which actually broadcasts radio content, RM acts as a middleman between the people creating the programming and the stations on which they air.
In late 2017, RM brokered a Sputnik airtime deal that made his company the sole broadcaster on WZHF, an AM radio station in the D.C. area owned by the company Way Broadcasting. A November 2017 headline on Sputnik’s website heralded the deal with the cheeky headline, “All We Hear is Radio Sputnik: Russians Invade 1390 AM Radio Station in DC.”
In the wake of the 2016 election, DOJ had stepped up FARA enforcement against Russian media accused by U.S. intelligence of advancing the Kremlin’s political interests in the U.S. So it didn’t take long for the department’s National Security Division, which oversees FARA enforcement, to take note of RM’s role in brokering the WZHF deal.
DOJ sent a letter to RM in December notifying the company that it may have crossed the threshold for FARA reporting. The government requested information about RM’s work, corporate structure, and relationship with Sputnik.
For the next seven months, DOJ and attorneys for RM went back and forth, arguing over whether the company meets the definition of “foreign agent” under U.S. law. RM argued that its sole relationship with Sputnik was of a normal business nature, that it clearly was not engaged in propagandizing for a foreign entity, that it had no say in or control over Sputnik broadcast content, and that its middleman status differentiated it from Reston Translator and other entities that actively broadcast content from Sputnik or other registered foreign principals.
DOJ concluded otherwise. RM, it argued, was effectively a “publicity agent” and an “information-service employee” for Sputnik, defined as anyone who disseminates any information either, respectively, on behalf of a foreign principal or hailing the virtues or benefits or a foreign government.
RM filed a lawsuit last week in a federal court in Florida. It’s asking the judge for a declaratory judgment ruling that the company does not have to register as a foreign agent. The case could spur some clarity in the law as DOJ eyes foreign media in particular, and their U.S. enablers, for registration and disclosure.
The case itself illustrates how some of the ambiguities in the law, and DOJ’s decades-long kid-gloves approach to FARA enforcement, have created significant uncertainty both about congressional intent and the types of cases in which the government will actively seek FARA compliance.
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