Process Reform for Executive Branch Review of Certain FCC Applications and Petitions Involving Foreign Ownership

Published date19 May 2020
Citation85 FR 29914
Record Number2020-09873
SectionProposed rules
CourtFederal Communications Commission
Federal Register, Volume 85 Issue 97 (Tuesday, May 19, 2020)
[Federal Register Volume 85, Number 97 (Tuesday, May 19, 2020)]
                [Proposed Rules]
                [Pages 29914-29916]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2020-09873]
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                FEDERAL COMMUNICATIONS COMMISSION
                47 CFR Parts 0, 1, and 63
                [IB Docket No. 16-155; DA 20-452; FRS 16720]
                Process Reform for Executive Branch Review of Certain FCC
                Applications and Petitions Involving Foreign Ownership
                AGENCY: Federal Communications Commission.
                ACTION: Proposed record of proceeding.
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                SUMMARY: In this document, the International Bureau (IB) refreshes the
                record in Executive Branch Review Process Proceeding, IB Docket 16-155,
                by adding Executive Order 13913 into the record of the proceeding and
                seeking comment.
                DATES: Comments are due on or before June 18, 2020, and reply comments
                are due on or before July 2, 2020.
                ADDRESSES: Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's
                rules, 47 CFR 1.415, 1.419, interested parties may file comments and
                reply comments on or before the dates indicated in this document.
                Comments may be filed using the Commission's Electronic Comment Filing
                System (ECFS). See Electronic Filing of Documents in Rulemaking
                Proceedings, 63 FR 24121 (1998).
                 Electronic Filers. Comments may be filed electronically
                using the internet by accessing the ECFS: https://www.fcc.gov/ecfs.
                 Paper Filers. Parties who choose to file by paper must
                file an original and one copy of each filing. If more than one docket
                or rulemaking number appears in the caption of this proceeding, filers
                must submit two additional copies for each additional docket or
                rulemaking number.
                 Filings can be sent by commercial overnight courier, or by first-
                class or overnight U.S. Postal Service mail. All filings must be
                addressed to the Commission's Secretary, Office of the Secretary,
                Federal Communications Commission.
                 [cir] Commercial overnight mail (other than U.S. Postal Service
                Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
                Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express,
                and Priority mail must be addressed to 445 12th Street SW, Washington,
                DC 20554.
                 Effective March 19, 2020, and until further notice, the
                Commission no longer accepts any hand or messenger delivered filings.
                This is a temporary measure taken to help protect the health and safety
                of individuals, and to mitigate the transmission of COVID-19. See FCC
                Announces Closure of FCC Headquarters Open Window and Change in Hand-
                Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
                 People with Disabilities: To request materials in
                accessible formats for people with disabilities (braille, large print,
                electronic files, audio format), send an email to [email protected] or
                call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice)
                or 202-418-0432 (TTY).
                 In addition, filers may provide one copy of each filing to each of
                the following: (1) Arthur Lechtman, Attorney, Telecommunications and
                Analysis Division, International Bureau, at [email protected],
                and (2) David Krech, Associate Division Chief, Telecommunications and
                Analysis Division, International Bureau, at [email protected].
                FOR FURTHER INFORMATION CONTACT: For further information, please
                contact Arthur Lechtman, Telecommunications and Analysis Division,
                International Bureau, at [email protected] or (202) 418-1465.
                SUPPLEMENTARY INFORMATION: The Commission refers certain applications
                to Executive Branch agencies when there is reportable foreign ownership
                in the applicant. Specifically, where an applicant has a 10% or greater
                direct or indirect owner that is not a U.S. citizen, Commission
                practice has been to refer an application for: (1) International
                section 214 authority; (2) assignment or transfer of control of
                domestic or international section 214 authority; (3) a submarine cable
                landing license; and (4) assignment or transfer of control of a
                submarine cable landing license. The Commission also refers petitions
                seeking authority to exceed the foreign ownership limits in section
                310(b) of the Communications Act of 1934, as amended, 47 U.S.C. 310(b),
                for broadcast and common carrier wireless licensees, including common
                carrier satellite earth stations.
                 On June 24, 2016, the Commission adopted a Notice of Proposed
                Rulemaking (NPRM) to improve the timeliness and transparency of the
                process involving referral of certain applications with reportable
                foreign ownership to Executive Branch agencies, including the Team
                Telecom agencies, for feedback on any national security, law
                enforcement, foreign policy, or trade policy concerns. Process Reform
                for Executive Branch Review of Certain FCC Applications and Petitions
                Involving Foreign Ownership, 81 FR 46870 (2016) (Executive Branch
                Review Process NPRM). Specifically, the Commission sought comment on:
                (1) The types of applications to be referred to the Executive Branch;
                (2) the information that should be provided by an applicant with
                reportable foreign ownership in order to facilitate Executive Branch
                review; (3) certifications to be made by an applicant that it will
                comply with several mitigation measures; and (4) time frames for
                Executive Branch review of the applications. The Commission proposed a
                90-day review period for applications referred to the Executive Branch,
                with a one-time additional 90-day extension for circumstances where the
                Executive Branch required additional review time beyond the initial
                period.
                 On April 4, 2020, the President signed Executive Order 13913,
                Establishing the Committee for the Assessment of Foreign Participation
                in the United States Telecommunications Services Sector, 85 FR 19643
                (April 8, 2020). Importantly, among other things, the Executive Order
                sets out procedures and timeframes for the Committee's review of
                applications referred by the Commission.
                [[Page 29915]]
                 The Executive Order establishes the Committee to review
                applications referred by the Commission. The Committee may also review
                existing licenses to identify any additional or new risks to national
                security or law enforcement interests of the United States, where the
                Commission previously has referred the application for the license to
                the Committee or its predecessor agencies for review. The Committee is
                comprised of the Secretary of Defense; the Secretary of Homeland
                Security; and the Attorney General, who serves as Chair (together, the
                Committee Members). The President may also appoint the head of any
                other department or agency, or any Assistant to the President, to be a
                member of the Committee. The Executive Order also provides for
                Committee Advisors. Within 90 days of the signing of the Executive
                Order, the Committee Members and the Director of National Intelligence
                shall enter into a Memorandum of Understanding (MOU) on the process to
                implement the Executive Order.
                 The Executive Order sets out the following time frames for the
                Committee's review of an application for a ``license'' or transfer of a
                license referred by the Commission: 120 days for an initial review and
                a 90-day secondary assessment of an application if the Committee
                determines that the risk to national security or law enforcement
                interests cannot be mitigated by standard mitigation measures. The
                Executive Order defines a ``license'' as any license, certificate of
                public interest, or other authorization issued or granted by the
                Federal Communications Commission after referral of an application by
                the Commission to the Committee or its predecessor group of agencies.
                It defines an ``application'' as any application, petition, or other
                request for a license or authorization, or the transfer of a license or
                authorization, referred by the Commission to the Committee or its
                predecessor group of agencies. At the conclusion of its review, the
                Committee may advise the Commission that the Committee has no objection
                to grant of the application; recommends that the Commission deny the
                application due to the risk to the national security or law enforcement
                interests of the United States; or recommends that the Commission
                condition grant on the applicant's compliance with standard or non-
                standard mitigation measures. In cases where the Committee Members and
                Committee Advisors cannot reach consensus on recommendations to deny or
                condition on non-standard mitigation, they shall submit a
                recommendation to the President.
                 The Committee may seek information from an applicant in furtherance
                of its review and assessments of the application, and the 120-day time
                frame for review begins when the Committee Chair determines that the
                applicant's responses are complete. The MOU will delineate questions
                and requests for applicants and licensees that may be needed to acquire
                information necessary to conduct the reviews and assessments and define
                the standard mitigation measures.
                 By this Public Notice, the Commission enters the Executive Order
                into the record of IB Docket No. 16-155 and seeks comment on the effect
                of the Executive Order on the Commission's proposed rules and
                procedures.
                 Request for Comments: The Commission seeks comment on the effect of
                Executive Order 13913 on the proposals in the Executive Branch Review
                Process NPRM for Executive Branch review of Commission applications
                with reportable foreign ownership. Commenters should address how the
                Executive Order affects the specific proposals and issues raised in the
                Executive Branch Review Process NPRM. The Commission seeks comment
                generally on whether the Executive Order warrants any further or
                different rules to improve timeliness and transparency.
                 In particular, the Commission invites the Executive Branch to
                provide its view on the effect of the Executive Order in this
                proceeding and on the following issues. Will the Committee make
                publicly available a standard set of questions and requests to
                applicants? If so, how will applicants be able to access them? Would
                the Committee expect an applicant's responses to such questions to be
                submitted to the Committee at the time the application is filed? Does
                the Executive Branch continue to propose that certain certifications be
                made by applicants as part of the application process? If so, are there
                any changes to the proposed certifications? And does the Executive
                Branch continue to propose that all applicants make the certifications,
                or that such certifications apply solely to those applicants with
                reportable foreign ownership?
                 Interested parties also may take this opportunity to refresh the
                record of this proceeding with new facts or circumstances that have
                occurred since the NPRM's comment period closed in 2016. For example,
                how does the passage of the Clarifying Lawful Overseas Use of Data
                (CLOUD) Act, 18 U.S.C. 2713, affect the proposed certification on
                access to communications and records? The Commission sought comment of
                requiring an applicant to certify that it will ``make communications
                to, from, or within the United States, as well as records thereof,
                available in a form and location that permits them to be subject to
                lawful request or valid legal process under U.S. law, for services
                covered under the requested Commission license or authorization.''
                 Ex Parte Information: This proceeding shall be treated as a
                ``permit-but-disclose'' proceeding in accordance with the Commission's
                ex parte rules. 47 CFR 1.1200. Persons making ex parte presentations
                must file a copy of any written presentation or a memorandum
                summarizing any oral presentation within two business days after the
                presentation (unless a different deadline applicable to the Sunshine
                period applies). Persons making oral ex parte presentations are
                reminded that memoranda summarizing the presentation must (1) list all
                persons attending or otherwise participating in the meeting at which
                the ex parte presentation was made, and (2) summarize all data
                presented and arguments made during the presentation. If the
                presentation consisted in whole or in part of the presentation of data
                or arguments already reflected in the presenter's written comments,
                memoranda, or other filings in the proceeding, the presenter may
                provide citations to such data or arguments in his or her prior
                comments, memoranda, or other filings (specifying the relevant page
                and/or paragraph numbers where such data or arguments can be found) in
                lieu of summarizing them in the memorandum. Documents shown or given to
                Commission staff during ex parte meetings are deemed to be written ex
                parte presentations and must be filed consistent with Sec. 1.1206(b)
                of the Commission's rules. In proceedings governed by Sec. 1.49(f) of
                the Commission's rules or for which the Commission has made available a
                method of electronic filing, written ex parte presentations and
                memoranda summarizing oral ex parte presentations, and all attachments
                thereto, must be filed through the electronic comment filing system
                available for that proceeding, and must be filed in their native format
                (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this
                proceeding should familiarize themselves with the Commission's ex parte
                rules.
                [[Page 29916]]
                Federal Communications Commission
                Denise Coca,
                Chief, Telecommunications & Analysis Division, International Bureau.
                [FR Doc. 2020-09873 Filed 5-18-20; 8:45 am]
                BILLING CODE 6712-01-P
                

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