Earlier this month, the FCC adopted a Report & Order (“R&O”) streamlining the application review process for transactions involving foreign investment or participation in U.S. telecommunications companies (commonly known as “Team Telecom” but also referred to as “the Committee” in the R&O). Team Telecom is comprised of a committee of Executive Branch agencies (including the Department of Defense, the Department of Homeland Security, and the Department of Justice) tasked with assessing the national security, law enforcement, foreign policy, and trade policy concerns in these cross-border M&A transactions involving U.S. telecom companies. The FCC issued the R&O to formalize a decades-long practice and update its rules governing Team Telecom review consistent with the President’s April 4, 2020 Executive Order No. 13913 (the “EO”). The FCC builds upon the initial procedural requirements set by the EO to add certainty and transparency to the Team Telecom review process in a manner that protects national security interests without discouraging foreign investment. Continue Reading
On August 12, 2020, a Ninth Circuit panel affirmed three orders issued in 2018 by the Federal Communications Commission (FCC) to promote infrastructure investment and broadband deployment, including 5G small cell nodes. Continue Reading
The Takeaway: Severe restrictions on ByteDance’s Sale of TikTok should be a warning to media and tech companies with foreign ownership, particularly Chinese investment, to know your risks and mitigate them before the government comes knocking. Continue Reading
On August 6, 2020, Trump issued two separate executive orders that will severely restrict TikTok and WeChat’s business in the United States. For weeks, the media has reported on Trump’s desire to “ban” TikTok with speculation about the legal authority to do so. We break down the impact of the Orders below. Continue Reading
On April 4th, 2020, President Trump issued an Executive Order on Establishing the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector. The Executive Order essentially formalizes the Federal Communications Commission’s (“FCC” or “Commission”) existing “Team Telecom” review process by establishing the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector (“Committee”), with one notable exception: for the first time, Team Telecom reviews will occur subject to a defined and limited timeframe of 120 days (with the possibility of 90 additional days), as further explained below. These timeframes are slightly lengthier than the review periods recently established by the Department of Treasury for reviews conducted by the Committee on Foreign Investment in the United States (“CFIUS”). Continue Reading
Amidst the ongoing power struggle between communications service providers striving for unfettered access to rights-of-way to place their facilities, and municipalities working to protect their authority over such rights-of-way, local governments retained a measure of control over the deployment of wireless equipment in their rights-of-way when the California Supreme Court held that municipalities may consider aesthetics when granting wireless installation permits. Continue Reading
Providers of broadband communications services and infrastructure, owners of residential and commercial multitenant buildings such as apartment buildings, office buildings, and shopping centers (multitenant environments or “MTEs”), and broadband consumers in MTEs, are weighing in on various questions posed in the Federal Communications Commission’s recent multitenant NPRM. See Improving Competitive Broadband Access to Multiple Tenant Environments, GN Dkt. No. 17-142, Notice of Proposed Rulemaking and Declaratory Ruling, FCC 19-65 (July 12, 2019) (“NPRM”), available at https://docs.fcc.gov/public/attachments/FCC-19-65A1.pdf. Continue Reading
- Technology Infrastructure and Data. CFIUS will focus its review on investments in critical Technology, critical Infrastructure, and sensitive personal Data (“TID Businesses”).
- Critical technologies is defined to include certain items subject to export controls along with emerging and foundational technologies under the Export Control Reform Act of 2018.
- CFIUS provides a very helpful list of critical infrastructure and functions to help assess whether any business is a TID Business. We reproduce most of this list at the end of this blog article. (Sneak preview: telecom, utilities, energy, and transportation dominate the list.)
- The proposed regulations provide much-needed guidance on what constitutes sensitive personal data and also seek to limit the reach of the definition so it does not cast too wide a net over transactions in which CFIUS really should have no national security concern.
- Exceptions for Certain Countries. Investors from certain countries may be excepted from CFIUS jurisdiction when making non-controlling investments.
- New Set of Rules for Real Estate. In a companion piece, CFIUS proposed for the first time a detailed set of rules related to investments in real estate. We will cover this in a separate blog article to be published in the near future.
- Expansion of Short-Form Declaration Use. The proposed rules provide parties the choice to use a short-form declaration for any transaction under CFIUS jurisdiction in lieu of a long-form notice.
- Comments Due by October 17, 2019. Members of the public may submit comments on the proposed regulations any time between now and October 17, 2019. Final regulations must be adopted by CFIUS and become effective no later than February 13, 2020.
A recent decision by the Eleventh Circuit will make it more difficult for plaintiffs to establish standing to sue under the Telephone Consumer Protection Act (TCPA). In Salcedo v. Hanna, et al., Case No. 17-14077, 2019 U.S. App. LEXIS 25967 (11th Cir. Aug. 28, 2019), the Eleventh Circuit ruled that a single text message did not cause sufficient harm to sue in federal court. As a result, “single text message” TCPA cases may be a thing of the past, at least in the federal courts across the three States in the Eleventh Circuit (Florida, Georgia, and Alabama). However, given conflict with a ruling by the Ninth Circuit, the issue may now be ripe for decision by the U.S. Supreme Court. Continue Reading
In accordance with Section 889(a)(1)(A) of the 2019 National Defense Authorization Act (Pub. L. No. 115-232) (the “2019 NDAA”), which required imposition of broad restrictions on procurements involving certain Chinese telecommunications hardware manufacturers such as Huawei Technologies Co. and ZTE Corp within one year, the FAR Council has released an interim rule implementing these restrictions. Today, the FAR Council released Federal Acquisition Circular 2019-05 (84 Fed. Reg. 40,216), creating a new FAR Subpart 4.21, as well as two new contract clauses, FAR 52.204-24 and 52.204-25, all of which are effective August 13, 2019. These restrictions apply not only to prime contractors, but also to all subcontractors and throughout the supply chain. Government contractors need to know that these new requirements are effective immediately and that opportunities for waivers are very limited. Continue Reading