Norman Leventhal is our Partner in our Washington, D.C. office
In response to a Letter Request filed on August 31, 2012 by a coalition of major broadcast groups headed by Univision Communications [See Dec. 11, 2012 Blog Post], the Federal Communications Commission's Media Bureau has now invited comments from the public on the matter of changing its long-standing policy concerning foreign entities or persons owning more than 25% of a U.S. broadcast company. Specifically, the FCC Public Notice states that the Coalition Letter "asks the Commission to clarify that it will conduct a substantive, facts and circumstances evaluation of proposals for foreign investment in excess of 25 percent in the parent company of a broadcast licensee, consistent with and in furtherance of its authority under" Section 310(b)(4) of the Communications Act.
Unfortunately, even if answered in the affirmative, the only result will be a new procedural posture which says that the Commission will actually consider applications from foreign entities -- an action which the law now requires it to do anyway. The contextual background leading to this is instructive: for the last 70 years, with one exception, the FCC has followed a "sub silentio" policy of not considering such applications.
So, an affirmative response would certainly be a step in the right direction. The outcome, however -- if limited as we would expect to the specific nature of the inquiry -- will not adopt any standard for permitting foreign ownership above 25 percent such as is already in play for all telecom companies licensed by the FCC. Rather, it will only give those willing to challenge the status quo an opening to convince the Commission why it should allow a foreign entity to control American broadcast companies.
Although the Public Notice itself makes no statement on the merits of the issue, Commissioner Ajit Pai is firmly in support [Click Here]. Why no other Commissioner has taken a position, including the Chairman, remains somewhat of an unknown; particularly since, in this Blogger's view, the request is nothing more than a reaffirmation of what the law and judicial precedent require the FCC to do already.
Comments are due April 15 and reply comments April 30.
We will provide updates on this transcending development in American communications policy as they arise.
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