White House Establishes Committee on Foreign Participation in U.S. Telecommunications
On April 4, 2020, President Trump issued an Executive Order establishing the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector (the "Committee"). Under the Executive Order, the Committee is charged with recommending and advising the Federal Communications Commission on national security and law enforcement issues related to certain licenses and license applications.
The Executive Order names the Attorney General, Secretary of Defense, and Secretary of Homeland Security as the Committee's three members, appoints the Attorney General as chair of the Committee, and identifies other officials who are to serve in advisory roles to the Committee. The Committee's jurisdiction under the Executive Order is limited to referrals from the FCC, and it has the authority only to recommend that the FCC: "dismiss an application, deny an application, condition the grant of an application upon compliance with mitigation measures, modify a license with a condition of compliance with mitigation measures, or revoke a license."
Under the Executive Order, the Committee will have 120 days to conduct an initial review of an application referred by the FCC from the date that the Attorney General determines that an applicant's responses to questions or requests for information are complete. If the Committee determines that standard mitigation measures will not address the risks to national security or law enforcement interests, it may conduct a secondary assessment that is to last no more than 90 days.
In a separate statement, the Department of Justice noted that the Executive Order effectively formalizes the "Team Telecom" procedures that have long existed. According to the statement, the Foreign Investment Review Section of the National Security Division will represent the Attorney General on the Committee.
Commentary
It is not clear how far the Committee’s review power extends. The Executive Order's reference to "participation" in the telecommunications services sector may indicate an intent that the Committee conduct reviews of not only foreign license applicants or foreign investors in license applicants, but also potentially those applicants' foreign suppliers. DOJ's press release, however, suggests that the reviews will be limited to "certain license applications by companies under foreign ownership or control." What is clear, though, is that the Committee's remit goes beyond applications and extends to currently active licenses. License holders, therefore, should be prepared to entertain questions or information requests from the Committee and face potential measures to mitigate any national security concerns it may have.