The Federal Communications Commission (“FCC”) seeks to refresh the record in a long-dormant 2016 proceeding that sought to lend greater certainty to reviews by the group of Executive Branch agencies informally referred to as “Team Telecom.” As we discussed in a prior post, an April 4, 2020 Executive Order 13913 (“E.O. 13913”) formalized Team Telecom – including naming it, officially, the “Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector.” Despite E.O. 13913 conferring some structure on the Team Telecom review process, many aspects of the review process remain to be developed. Intent on lending a helping hand filling in gaps, the FCC seeks comment on whether and how E.O. 13913 affects the 2016 proceeding proposals. The 2016 proceeding floated some proposals that would be broadly applicable, such as new certifications for all applicants not just those involving disclosable levels of foreign ownership, the usual trigger for Team Telecom review. Consequently all licensed providers may want to assess if this proceeding warrants a close look.
For those interested in participating, comments and replies are due by June 18, 2020 and July 2, 2020, respectively.
To those unfamiliar with Team Telecom reviews, the FCC refers to Team Telecom applications it receives for international Section 214 or submarine cable licenses, as well as applications to assign or transfer control of such licenses, where an applicant has ten percent (10%) or greater direct or indirect foreign ownership. Team Telecom reviews the applications for law enforcement and national security concerns. Any company that has undergone a Team Telecom review knows that the experience can be lengthy and require assembly of copious amounts of information and responses to numerous questions. The FCC’s 2016 proceeding included numerous proposals, including some from the National Telecommunications and Information Administration that were submitted on behalf of Team Telecom, to reform Team Telecom reviews by providing structure and greater transparency. Although E.O. 13913 established some review timelines and framed out certain processes to guide Team Telecom reviews, many aspects of the review process remain to be developed, especially as they impact the Commission or applicants. And, while it is not surprising that the FCC might want to provide insight to Team Telecom as the latter works to implement E.O. 13913, the FCC’s reopening of the 2016 proceeding is intriguing for a number of reasons.
Notably, the FCC’s comment request, while open to the public, expressly invites Team Telecom to comment on E.O. 13913’s effect on the FCC’s 2016 reform proceeding proposals. The FCC’s public notice poses several questions directly to Team Telecom members, including, among others, whether Team Telecom still proposes that all applicants make certain certifications with their FCC applications and whether those certifications have changed from those proposed in the 2016 proceeding. The proceeding refresh timing also is somewhat unusual. E.O. 13913 gave Team Telecom 90 days – or until July 3 – to develop an implementation plan covering certain aspects of the review process. However, the FCC tees up review process questions, such as distribution of Team Telecom data requests to applicants, whether applicants will submit responses when applications are first filed, etc., that Team Telecom presumably will only address in its implementation plan several weeks after the initial comments are due. Finally, the FCC’s request for general comment on whether E.O. 13913 needs “further or different rules to improve timeliness and transparency” may signal a belief that there is room for improvement even under the new Team Telecom review structure.
Although some of the FCC’s comment requests are directed at Team Telecom, telecommunications industry participants should consider if they have ideas or concerns to include in the record. Some proposals included in the 2016 Team Telecom reform proceeding, and for which the Commission again seeks comment, could have broad applicability. One such proposal would require that all applicants, even those without foreign ownership, certify that they will make communications within, to, or from the United States and related records subject to legal process and will appoint a U.S. citizen or lawful permanent resident, located in the United States, to execute such legal process. Similarly, industry members may want to address certain of the 2016 proceeding proposals in light of new regulatory changes such as the Clarifying Lawful Overseas Use of Data Act (the “CLOUD Act”) which could affect an applicant’s ability to make certain certifications.
Kelley Drye continues to monitor the new Team Telecom and the developing review process. Please reach out to us or your usual Kelley Drye attorneys if you have any questions.