Section 214 Item Changed on Way to FCC OK
The FCC’s Section 214 international authorizations order and NPRM, approved by commissioners 4-0 last week (see 2304200039), got a number of changes in approach and language between the draft and final version, based on a side-by-side comparison. The item was posted in Wednesday’s Daily Digest. The order authorizes a one-time collection of foreign-ownership information from holders of international Communications Act Section 214 authorizations and seeks comment on rules requiring carriers to renew these authorizations every 10 years, “or in the alternative,” periodic updates.
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On covered list certifications, the final order proposes to require certification rather than seeking comment “on whether the Commission should require applicants to certify in their application whether or not they use equipment or services identified in the Commission’s ‘Covered List’ of equipment and services,” as proposed in the draft.
In other cases, the FCC now provides more clarity. The draft says: “The regulatory framework for international section 214 authority ensures that the Commission considers whether foreign participation in the U.S. telecommunications market would raise national security, law enforcement, and other concerns due to an applicant’s foreign ownership.” In the final version other concerns becomes “foreign policy, and/or trade policy concerns.” Similar changes are made elsewhere.
In keeping with structural changes after the draft circulated (see 2304110002), tasks assigned to the former International Bureau are now assigned to the new Office of International Affairs.
In a portion on Section 214 information collection, the final version notes “authorization holders that fail to comply with the information collection required in the Order are subject to forfeitures in addition to cancelation.” The draft doesn’t mention potential fines. The draft proposes a “periodic review framework” for authorization holders, which was changed to “periodic review process.” The FCC adds a question to a section on proposed 10-year renewal requirements: “We also seek comment on whether the 10-year period should reset if an international section 214 authorization holder undergoes a complete review, such as during the review of a substantive assignment or transfer of control application.”
In a section on use of the public interest standard for renewals, the FCC added a sentence, now saying, “We also propose to codify the same standard of review for initial applications for international section 214 authority and to applications for modification, assignment, or transfer of control of international section 214 authority.”
The draft proposed to seek comment on whether U.S.-owned applicants should have to provide information on foreign-owned managed network service providers (MNSPs). The final version says: “We propose … that all applicants provide information concerning foreign-owned MNSPs. We propose and seek comment on rules that would require applicants to provide information on the facilities they use and/or will use to provide services between the United States and Canada and/or Mexico (cross border), and also propose to require applicants to disclose whether they use equipment or services identified on the Commission’s ‘Covered List.’”
The final order adds text on Section 214 applicants that may not require broader administration security review. “Are there categories of applications that we should not refer to the Executive Branch agencies, including applications concerning which the Commission on its own motion could take action and institute appropriate proceedings without referral?” the FCC now asks: “What prior national security determinations may be relevant to this analysis?”
The draft proposed adoption of new application requirements for all international Section 214 applicants and authorization holders. The final version says: “We propose or seek comment on adopting new application requirements.” A section on a proposed 5% ownership threshold requiring a report also got several tweaks and new questions on potential exemptions. “We note that in the context of foreign ownership rulings under section 310(b) of the [Communications] Act, the Commission does not require the identification of certain foreign investors if their investment meets insulation criteria set out in our rules,” the final version says: “We seek comment on whether we should adopt such an approach for identifying ownership in international section 214 authorizations.”
The approved version proposes that any applicant “with or without foreign ownership that indicates it uses and/or will use foreign-owned MNSPs will need to answer Standard Questions” about ownership and could face scrutiny. The draft asked only about a potential requirement.