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FCC Mulls Over Raising Limits on Foreign Ownership of Broadcast Stations

In response to a request by the Coalition for Broadcast Investment (“Coalition”), the FCC, through its Media Bureau, has invited the filing of comments on the question of whether the Commission should now be open to allowing non-citizens and foreign companies to hold more than a 25% equity interest in U.S. radio and television stations. The deadline for filing comments is April 15, with reply comments due by April 30.

The Coalition is comprised of national broadcast networks, radio and television station licensees, as well as community and consumer organizations. It is urging the FCC to publicly commit, going forward, to considering on their individual merits transactions proposing significant foreign investment in broadcast stations, rather than reflexively rejecting foreign ownership above the 25% mark, as the FCC has traditionally done when reviewing broadcast transactions.

But for the Commission’s decades-old refusal to be flexible, the Coalition’s request would not have been necessary as Section 310(b)(4) of the Communications Act states that a broadcast license will not be granted to “any corporation directly or indirectly controlled by any other corporation of which more than one-fourth of the capital stock is owned of record or voted by aliens, their representatives, or by a foreign government or representative thereof, or by any corporation organized under the laws of a foreign country, if the Commission finds that the public interest will be served by the refusal or revocation of such license.” The very language of the Act therefore indicates that alien ownership above the 25% mark will be permitted unless the FCC specifically finds that such foreign ownership would not, in the particular situation presented, serve the public interest.

Despite the language of the statute, the FCC has routinely declined to consider broadcast-related transactions proposing more than 25% foreign ownership of a broadcast parent company. The Coalition contends that, by considering the merits foreign ownership proposals in excess of the 25% mark, the FCC will encourage “access to additional and new sources of investment capital [which] will benefit the broadcast industry and American consumers by financing advanced infrastructure, innovative services and high quality programming; and by promoting the creation of highly skilled, well-paying jobs” as well as “provide new opportunities for minority businesses and entrepreneurs, whose access to the domestic capital markets has been limited….”

A clear statement by the FCC that it will now review, on the merits, radio and television transactions proposing significant foreign investment in U.S. broadcast stations should send a very constructive signal to the broadcast industry, to potential foreign investors and to U.S. investors looking to syndicate more of their capital needs offshore for U.S. broadcast investments. Such a new openness and flexibility on the part of the Commission will also serve to create a more equitable “access to capital” environment for broadcasters particularly in relation to other forms of media.

Future Commission actions publicly approving, disapproving and conditioning transactions proposing “plus 25%” foreign ownership will, over time, provide the necessary predictability that is so important for investment decision-making. Pillsbury has considerable experience in crafting FCC-friendly ownership/control structures for banks, companies and firms with foreign ownership that wish to invest in U.S. broadcast stations. Action by the Commission on the Coalition’s letter will hopefully simplify and speed the heretofore painstaking process of balancing the return on investment objectives of foreign investors against the need to meet the letter and intent of the FCC’s rules and policies with respect to foreign ownership of U.S. broadcast stations.

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