Responding to a rulemaking notice (NPRM) that was issued by the FCC in October, the National Association of Broadcasters (NAB), T-Mobile US, Comcast and other parties urged the FCC last week to streamline the agency’s process for reviewing broadcast foreign ownership. The NAB characterized the current process as “unduly burdensome and unnecessary” in the current media marketplace in which “the ability of foreign entities to disseminate programming in the United States has been extremely diluted.”
If approved, the rules proposed in the NPRM would extend to broadcasters the same policies and procedures that the FCC enacted in 2013 for review of common carrier foreign ownership. Currently, the FCC considers requests to exceed the statutory 25% benchmark on broadcast foreign ownership on an individual, case-by-case basis, which assesses the effect of the proposed foreign ownership on the public interest. The NPRM would streamline that process by (1) codifying current
FCC policy to allow broadcasters to request foreign ownership stakes of up to 100%, (2) allowing broadcasters to request that a proposed controlling foreign investor, upon FCC approval, be permitted to increase its stake to 100% without having to submit a new petition, and (3) allowing broadcasters to request that any non-controlling foreign investor, upon FCC approval, be allowed to increase its stake in a U.S. parent company up to 49.99% without filing a new petition. To further ease regulatory burdens, the NPRM also proposes that broadcasters would not be required to seek FCC approval to add non-controlling foreign investors with stakes of 5% or less or with interests of less than 10% in certain circumstances.
Parties filing comments with the FCC voiced overwhelming support for these proposals, which they contend will promote investment in the U.S. broadcast sector. As it agreed that “a more clearly defined review and approval process will provide licensees greater transparency and predictability,” the NAB reminded the FCC that, “even in the context of revised foreign ownership rules, the Commission and Executive Branch agencies will retain the ability to evaluate transactions and protect against security threats.” While T-Mobile asserted, “there is no need for a fact-based inquiry into a public company’s five-percent shareholders,” the carrier recommended that the FCC should streamline its rules further by adopting “a rebuttable presumption that shareholders holding interests of five percent or less in a public company . . . do not raise public interest concerns.” As it endorsed the FCC’s plan to allow broadcast licensees owned by U.S. public companies to “rely solely on information that is known or reasonably should be known to the public company” to determine whether the licensee is in compliance with the FCC’s foreign ownership rules, Comcast cautioned the agency against imposing “any specific methodology” on how companies should analyze that information.