Foreign Ownership in the United States [3.4.2]

Three main government entities are responsible for assessing foreign ownership in the telecommunications sector in the United States.

Federal Communications Commission

The Federal Communications Commission (FCC) reviews initial authorizations and transfers of control of telecommunications licences.[1] Section 310 of the Communications Act of 1934,[2] as amended by the Telecommunications Act of 1996,[3] imposes foreign ownership restrictions on U.S. broadcast, common carrier, or aeronautical radio station licensees.[4] Section 310 covers foreign ownership restrictions applicable to FCC licences, and Section 310(b)(4) in particular is implicated in the majority of cases where foreign ownership is an issue.[5] In addition, applications from companies with foreign ownership[6] or a transfer of control or assignment application in which foreign ownership is an issue may be scrutinized more closely by the Executive Branch, including the Department of Justice, the Federal Bureau of Investigation, and the Department of Homeland Security, for potential national security, law enforcement and public safety issues.[7] The Departments of Justice and Homeland Security, and the Federal Bureau of Investigation typically intervene in the FCC review to ensure that foreign investment in U.S. telecommunications assets does not impair U.S. law enforcement, national security or infrastructure protection interests.

In the past few years, the U.S. Department of Homeland Security's focus on infrastructure protection has increased the scope of the voluntary security agreements that the Department of Justice, Federal Bureau of Investigation, and Department of Homeland Security have negotiated. It is much more frequent that companies are required to enter into voluntary security agreements with these agencies before obtaining approval for their licence applications or obtaining approval under the CFIUS process discussed below. The security agreements are intended to facilitate U.S. law enforcement for undertaking surveillance activities, preventing foreign government surveillance activities, and prevent improper foreign access to U.S. telecommunications networks. To date, voluntary security agreements have been entered into by such companies as British Telecommunications,[8] Voicestream/T-Mobile (owned by Deutsche Telekom),[9] and Videsh Sanchar Nigam Limited of India.[10]

Department of Justice

In addition to the FCC, the Department of Justice reviews proposed purchases for antitrust implications.[11] In the United States , any transaction, meeting a certain threshold is subject to antitrust review under the Hart-Scott-Rodino Act, regardless of whether or not it involves foreign investment.

U.S. Department of Treasury's Committee on Foreign Investment in the United States (CFIUS)

CFIUS[12] reviews the national security implications of foreign acquisitions of U.S. companies.[13] CFIUS is an interagency group composed of major Executive Branch departments, agencies and offices, including the Departments of Defense, State, Treasury, Commerce and Homeland Security, which reviews foreign investment submissions under the authority of the Exon-Florio Amendment to the Defense Production Act of 1950.[14] This act grants the President authority to suspend or prohibit any foreign acquisition, merger or takeover of a U.S. corporation that is determined to threaten the national security of the United States.  The CFIUS process generally is initiated by a voluntary notice filed by the parties to an acquisition, merger or takeover.  

The President can only exercise his authority under the Exon-Florio provision if he finds that: (a) credible evidence that the foreign entity exercising control might take action that threatens national security, and (b) the provisions of law, other than the International Emergency Economic Powers Act do not provide adequate and appropriate authority to protect national security. In addition, investigation under Exon-Florio is mandatory where: (a) the acquirer is controlled by or acting on behalf for a foreign government; and (b) the acquisition could result in control of a person engaged in interstate commerce in the United States that could affect national security in the United States.

Although ultimately approved, a number of ICT transactions have undergone CFIUS review in the past few years, including: the NTT Communications purchase of Verio;[15] the transaction between IBM and Lenovo, one of the leading IT companies in China;[16] and the sale of Global Crossing to Hutchinson.[17] Since 11 September 2001, the CFIUS review process has intensified due to heightened national security concerns. Generally, rejection of the transaction is unlikely but the U.S. may require certain restructuring measures to be undertaken before they will approve the transaction.

ENDNOTES

[1] The FCC's International Bureau published a set of advisory guidelines explaining how the FCC analyzes foreign ownership issues under Section 310 of the Communications Act of 1934 as amended. FCC International Bureau, Foreign Ownership Guidelines for FCC Common Carrier and Aeronautical Radio Licences , November 17, 2004 [ hereinafter FCC Guidelines].

[2] Codified in 47 U.S.C. § 151 et.seq.

[3] Pub. LA. No. 104-104, 110 Stat. 56 (1996).

[4] 47 U.S.C § 153(42) defines a “station licence” as “that instrument of authorization required by the Act or the rules and regulations of the Commission made pursuant to the Act, for the use and operation of apparatus for transmission of energy, or communications, or signals by radio by whatever name the instrument may be designated by the Commission.”

[5] Section 310(b)(3) is non-discretionary, and prohibits foreign governments, individuals and corporations from directly owning more than 20% of the stock of a broadcast, common carrier, or aeronautical radio station licensee. 47 U.S.C. §310(b)(3). According to FCC Guidelines, this section also applies in situations where a foreign entity holds equity or voting interests in a licensee through an intervening domestically organized holding company that itself holds non-controlling interests in the licensee. Section 310(b)(4) establishes a 25% benchmark for indirect investment by foreign individuals, corporations and governments in entities that control a broadcast, common carrier, or aeronautical radio station licence, and also gives the FCC discretion to allow higher levels of foreign ownership unless it finds that such ownership is inconsistent with the public interest. 47 U.S.C. §310(b)(4). According to the FCC Guidelines, this section also applies in situations where the foreign entity holds equity or voting interests in a domestically organized holding company that directly or indirectly controls the licensee. The FCC also gives preference to foreign investments by WTO Member countries, who are treated with a refutable presumption that foreign investment from WTO Member countries does not pose competitive concerns in the U.S. market. See FCC Guidelines, at 10-11.

[6] 47 U.S.C. §214.

[7] In Re the Matter of Rules and Policies on Foreign Participation in the U.S. Telecommunications Market , IB Docket No. 97-142, September 12, 2000.

[8] See British Telecommunications commitment letter regarding the acquisition of Infonet Services Corporation, submitted to the U.S. Department of Justice, the U.S. Department of Homeland Security, and the Federal Bureau of Investigation, January 12, 2005, available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-05-387A2.pdf .

[9] See Agreement regarding the transfer of licences held by Voicestream Wireless Corporation and Omnipoint Corporation to Voicestream Wireless Holding Corporation signed between Voicestream Wireless Corporation and Voicestream Wireless Holding Corporation (collectively “Voicestream”) and the U.S. Department of Justice and the Federal Bureau of Investigation, January 26, 2000, available at http://www.fcc.gov/Bureaus/Wireless/Orders/2000/fc00053a.pdf .

[10] See Agreement regarding the transfer of Tyco cable landing licences signed between VSNL America Inc., VSNL US , and Videsh Sanchar Nigam Limited (VSNL) and the U.S. Department of Homeland Security, U.S. Department of Justice and Federal Bureau of Investigation, April 11, 2005, available at http://svartifoss2.fcc.gov/servlet/ib.page.FetchAttachment?attachment_key=429057 .

[11] The Hart-Scott-Rodino Antitrust Improvements Act of 1976, codified in 15 U.S.C. §18a, requires the parties to certain qualifying acquisitions of any voting securities or assets of the acquired party to notify the U.S. Federal Trade Commission and the Department of Justice of the transaction and await the expiration of a mandatory waiting period prior to the closing, which is generally 30 days or 15 days in case of a cash tender offer. For an overview of this review, see Owen D. Kurtin & Beth Simone Noveck, The Regulatory Context of Acquisitions and Investment in the U.S. Telecommunications , International Journal of Communications Law and Policy, Issue 4, Winter 1999/2000.

[12] See James A. Lewis. CFIUS is an interagency body chaired by the Treasury Department. Some of the agencies that participate in CFIUS include the Department of Homeland Security, the Departments of State, Defense, Justice and Commerce, and the FBI. After a company's filing notification of a transaction with CFIUS, it has one month to decide whether or not to investigate the proposed sale.

[13] The CFIUS conducts the Exon-Florio review under delegated executive authority. The intent of Exon-Florio is not to discourage foreign direct investment generally, but to provide a mechanism to review and restrict foreign direct investment that threatens the national security. For a detailed description of the CFIUS procedure, see United States Department of the Treasury website, at http://www.treas.gov/offices/international-affairs/exon-florio/ .

[14] Section 721 of Pub. L. 100-418, 102 Stat. 1107, made permanent law by section 8 of Pub. L. 102-99, 105 Stat. 487 (50 U.S.C §2170), and amended by section 837 of the National Defense Authorization Act for Fiscal Year 1993, Pub. L. 102-484, 106 Stat. 2315, 2463.

[15]“NTT Communications and Verio announce Exon-Florio Clearance,” August 24, 2000, available at http://www.ntt.com/release_e/news00/0008/0824.html .

[16]“Committee on Foreign Investment in U.S. completes review of Lenovo-IBM deal,” March 9, 2005, available at http://www.lenovo.com/think/news/us/en/2005/04/cfius.html .

[17] Dennis K. Berman, “US Opens New Investigation into Global Crossing Deal,” Wall Street Journal, April 30, 2003, available at http://209.85.165.104/search?q=cache:6AddwMVdc6cJ:www.global-trade-law.com/Article.Global%2520Crossings%2520(WSJ%25204.30.03).htm+%22us+opens+new+investigation+into+global+crossing+deal%22&hl=en&ct=clnk&cd=1&gl=us.

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