§  1.5004   Routine terms and conditions.

   Foreign ownership rulings issued pursuant to § § 1.5000 through 1.5004
   shall be subject to the following terms and conditions, except as
   otherwise specified in a particular ruling:

   (a)(1) Aggregate allowance for rulings issued under § 1.5000(a)(1). In
   addition to the foreign ownership interests approved specifically in a
   licensee's declaratory ruling issued pursuant to § 1.5000(a)(1), the
   controlling U.S.-organized parent named in the ruling (or a
   U.S.-organized successor-in-interest formed as part of a pro forma
   reorganization) may be 100 percent owned, directly and/or indirectly
   through one or more U.S- or foreign-organized entities, on a
   going-forward basis (i.e., after issuance of the ruling) by other
   foreign investors without prior Commission approval. This “100 percent
   aggregate allowance” is subject to the requirement that the licensee
   seek and obtain Commission approval before any foreign individual,
   entity, or “group” not previously approved acquires, directly and/or
   indirectly, more than 5 percent of the U.S. parent's outstanding
   capital stock (equity) and/or voting stock, or a controlling interest,
   with the exception of any foreign individual, entity, or “group” that
   acquires an equity and/or voting interest of 10 percent or less,
   provided that the interest is exempt under § 1.5001(i)(3).

   (2) Aggregate allowance for rulings issued under § 1.5000(a)(2). In
   addition to the foreign ownership interests approved specifically in a
   licensee's declaratory ruling issued pursuant to § 1.5000(a)(2), the
   licensee(s) named in the ruling (or a U.S.-organized
   successor-in-interest formed as part of a pro forma reorganization) may
   be 100 percent owned on a going forward basis (i.e., after issuance of
   the ruling) by other foreign investors holding interests in the
   licensee indirectly through U.S.-organized entities that do not control
   the licensee, without prior Commission approval. This “100 percent
   aggregate allowance” is subject to the requirement that the licensee
   seek and obtain Commission approval before any foreign individual,
   entity, or “group” not previously approved acquires directly and/or
   indirectly, through one or more U.S.-organized entities that do not
   control the licensee, more than 5 percent of the licensee's outstanding
   capital stock (equity) and/or voting stock, with the exception of any
   foreign individual, entity, or “group” that acquires an equity and/or
   voting interest of 10 percent or less, provided that the interest is
   exempt under § 1.5001(i)(3). Foreign ownership interests held directly
   in a licensee shall not be permitted to exceed an aggregate 20 percent
   of the licensee's equity and/or voting interests.

   Note to paragraph (a): Licensees have an obligation to monitor and stay
   ahead of changes in foreign ownership of their controlling
   U.S.-organized parent companies (for rulings issued pursuant to
   § 1.5000(a)(1)) and/or in the licensee itself (for rulings issued
   pursuant to § 1.5000(a)(2)), to ensure that the licensee obtains
   Commission approval before a change in foreign ownership renders the
   licensee out of compliance with the terms and conditions of its
   declaratory ruling(s) or the Commission's rules. Licensees, their
   controlling parent companies, and other entities in the licensee's
   vertical ownership chain may need to place restrictions in their bylaws
   or other organizational documents to enable the licensee to ensure
   compliance with the terms and conditions of its declaratory ruling(s)
   and the Commission's rules.
   Example 1 (for rulings issued under § 1.5000(a)(1)). U.S. Corp. files an
   application for a common carrier license. U.S. Corp. is wholly owned
   and controlled by U.S. Parent, which is a newly formed, privately held
   Delaware Corporation in which no single shareholder has de jure or de
   facto control. A shareholder's agreement provides that a five-member
   board of directors shall govern the affairs of the company; five named
   shareholders shall be entitled to one seat and one vote on the board;
   and all decisions of the board shall be determined by majority vote.
   The five named shareholders and their respective equity interests are
   as follows: Foreign Entity A, which is wholly owned and controlled by a
   foreign citizen (5 percent); Foreign Entity B, which is wholly owned
   and controlled by a foreign citizen (10 percent); Foreign Entity C, a
   foreign public company with no controlling shareholder (20 percent);
   Foreign Entity D, a foreign pension fund that is controlled by a
   foreign citizen and in which no individual or entity has a pecuniary
   interest exceeding one percent (21 percent); and U.S. Entity E, a U.S.
   public company with no controlling shareholder (25 percent). The
   remaining 19 percent of U.S. Parent's shares are held by three
   foreign-organized entities as follows: F (4 percent), G (6 percent),
   and H (9 percent). Under the shareholders' agreement, voting rights of
   F, G, and H are limited to the minority shareholder protections listed
   in § 1.5001(i)(5). Further, the agreement expressly prohibits G and H
   from becoming actively involved in the management or operation of U.S.
   Parent and U.S. Corp.

   As required by the rules, U.S. Corp. files a section 310(b)(4) petition
   concurrently with its application. The petition identifies and requests
   specific approval for the ownership interests held in U.S. Parent by
   Foreign Entity A and its sole shareholder (5 percent equity and 20
   percent voting interest); Foreign Entity B and its sole shareholder (10
   percent equity and 20 percent voting interest), Foreign Entity C (20
   percent equity and 20 percent voting interest), and Foreign Entity D
   (21 percent equity and 20 percent voting interest) and its fund manager
   (20 percent voting interest). The Commission's ruling specifically
   approves these foreign interests. The ruling also provides that, on a
   going-forward basis, U.S. Parent may be 100 percent owned in the
   aggregate, directly and/or indirectly, by other foreign investors,
   subject to the requirement that U.S. Corp. seek and obtain Commission
   approval before any previously unapproved foreign investor acquires
   more than 5 percent of U.S. Parent's equity and/or voting interests, or
   a controlling interest, with the exception of any foreign investor that
   acquires an equity and/or voting interest of ten percent or less,
   provided that the interest is exempt under § 1.991(i)(3).

   In this case, foreign entities F, G, and H would each be considered a
   previously unapproved foreign investor (along with any new foreign
   investors). However, prior approval for F, G and H would only apply to
   an increase of F's interest above 5 percent (because the ten percent
   exemption under § 1.5001(i)(3) does not apply to F) or to an increase of
   G's or H's interest above 10 percent (because G and H do qualify for
   this exemption). U.S. Corp. would also need Commission approval before
   Foreign Entity D appoints a new fund manager that is a non-U.S. citizen
   and before Foreign Entities A, B, C, or D increase their respective
   equity and/or voting interests in U.S. Parent, unless the petition
   previously sought and obtained Commission approval for such increases
   (up to non-controlling 49.99 percent interests). (See § 1.5001(k)(2).)
   Foreign shareholders of Foreign Entity C and U.S. Entity E would also
   be considered previously unapproved foreign investors. Thus, Commission
   approval would be required before any foreign shareholder of Foreign
   Entity C or U.S. Entity E acquires (1) a controlling interest in either
   company; or (2) a non-controlling equity and/or voting interest in
   either company that, when multiplied by the company's equity and/or
   voting interests in U.S. Parent, would exceed 5 percent of U.S.
   Parent's equity and/or voting interests, unless the interest is exempt
   under § 1.5001(i)(3).
   Example 2 (for rulings issued under § 1.5000(a)(2)). Assume that the
   following three U.S.-organized entities hold non-controlling equity and
   voting interests in common carrier Licensee, which is a privately held
   corporation organized in Delaware: U.S. corporation A (30 percent);
   U.S. corporation B (30 percent); and U.S. corporation C (40 percent).
   Licensee's shareholders are wholly owned by foreign individuals X, Y,
   and Z, respectively. Licensee has received a declaratory ruling under
   § 1.5000(a)(2) specifically approving the 30 percent foreign ownership
   interests held in Licensee by each of X and Y (through U.S. corporation
   A and U.S. corporation B, respectively) and the 40 percent foreign
   ownership interest held in Licensee by Z (through U.S. corporation C).
   On a going-forward basis, Licensee may be 100 percent owned in the
   aggregate by X, Y, Z, and other foreign investors holding interests in
   Licensee indirectly, through U.S.-organized entities that do not
   control Licensee, subject to the requirement that Licensee obtain
   Commission approval before any previously unapproved foreign investor
   acquires more than 5 percent of Licensee's equity and/or voting
   interests, with the exception of any foreign investor that acquires an
   equity and/or voting interest of 10 percent or less, provided that the
   interest is exempt under § 1.5001(i)(3). In this case, any foreign
   investor other than X, Y, and Z would be considered a previously
   unapproved foreign investor. Licensee would also need Commission
   approval before X, Y, or Z increases its equity and/or voting interests
   in Licensee unless the petition previously sought and obtained
   Commission approval for such increases (up to non-controlling 49.99
   percent interests). (See § 1.5001(k)(2).)

   (b) Subsidiaries and affiliates. A foreign ownership ruling issued to a
   licensee shall cover it and any U.S.-organized subsidiary or affiliate,
   as defined in § 1.5000(d), whether the subsidiary or affiliate existed
   at the time the ruling was issued or was formed or acquired
   subsequently, provided that the foreign ownership of the licensee named
   in the ruling, and of the subsidiary and/or affiliate, remains in
   compliance with the terms and conditions of the licensee's ruling and
   the Commission's rules.

   (1) The subsidiary or affiliate of a licensee named in a foreign
   ownership ruling issued under § 1.5000(a)(1) may rely on that ruling for
   purposes of filing its own application for an initial broadcast, common
   carrier or aeronautical license or spectrum leasing arrangement, or an
   application to acquire such license or spectrum leasing arrangement by
   assignment or transfer of control provided that the subsidiary or
   affiliate, and the licensee named in the ruling, each certifies in the
   application that its foreign ownership is in compliance with the terms
   and conditions of the foreign ownership ruling and the Commission's
   rules.

   (2) The subsidiary or affiliate of a licensee named in a foreign
   ownership ruling issued under § 1.5000(a)(2) may rely on that ruling for
   purposes of filing its own application for an initial common carrier
   radio station license or spectrum leasing arrangement, or an
   application to acquire such license or spectrum leasing arrangement by
   assignment or transfer of control provided that the subsidiary or
   affiliate, and the licensee named in the ruling, each certifies in the
   application that its foreign ownership is in compliance with the terms
   and conditions of the foreign ownership ruling and the Commission's
   rules.

   (3) The certifications required by paragraphs (b)(1) and (2) of this
   section shall also include the citation(s) of the relevant ruling(s)
   (i.e., the DA or FCC Number, FCC Record citation when available, and
   release date).

   (c) Insertion of new controlling foreign-organized companies. (1) Where
   a licensee's foreign ownership ruling specifically authorizes a named,
   foreign investor to hold a controlling interest in the licensee's
   controlling U.S.-organized parent, for rulings issued under
   § 1.5000(a)(1), or in an intervening U.S.-organized entity that does not
   control the licensee, for rulings issued under § 1.5000(a)(2), the
   ruling shall permit the insertion of new, controlling foreign-organized
   companies in the vertical ownership chain above the controlling U.S.
   parent, for rulings issued under § 1.5000(a)(1), or above an intervening
   U.S.-organized entity that does not control the licensee, for rulings
   issued under § 1.5000(a)(2), without prior Commission approval provided
   that any new foreign-organized company(ies) are under 100 percent
   common ownership and control with the foreign investor approved in the
   ruling.

   (2) Where a previously unapproved foreign-organized entity is inserted
   into the vertical ownership chain of a licensee, or its controlling
   U.S.-organized parent, without prior Commission approval pursuant to
   paragraph (c)(1) of this section, the licensee shall file a letter to
   the attention of the Chief, International Bureau, within 30 days after
   the insertion of the new, foreign-organized entity. The letter must
   include the name of the new, foreign-organized entity and a
   certification by the licensee that the entity complies with the 100
   percent common ownership and control requirement in paragraph (c)(1) of
   this section. The letter must also reference the licensee's foreign
   ownership ruling(s) by IBFS File No. and FCC Record citation, if
   available. This letter notification need not be filed if the ownership
   change is instead the subject of a pro forma application or pro forma
   notification already filed with the Commission pursuant to the relevant
   broadcast service rules, wireless radio service rules or satellite
   radio service rules applicable to the licensee.

   Note to paragraph (c)(2): For broadcast stations, in order to insert a
   previously unapproved foreign-organized entity that is under 100
   percent common ownership and control with the foreign investor approved
   in the ruling into the vertical ownership chain of the licensee's
   controlling U.S.-organized parent, as described in paragraph (c)(1) of
   this section, the licensee must always file a pro forma application
   requesting prior consent of the FCC pursuant to section 73.3540(f) of
   this chapter.

   (3) Nothing in this section is intended to affect any requirements for
   prior approval under 47 U.S.C. 310(d) or conditions for forbearance
   from the requirements of 47 U.S.C. 310(d) pursuant to 47 U.S.C. 160.
   Example (for rulings issued under § 1.5000(a)(1)). Licensee of a common
   carrier license receives a foreign ownership ruling under § 1.5000(a)(1)
   that authorizes its controlling, U.S.-organized parent (“U.S. Parent
   A”) to be wholly owned and controlled by a foreign-organized company
   (“Foreign Company”). Foreign Company is minority owned (20 percent) by
   U.S.-organized Corporation B, with the remaining 80 percent controlling
   interest held by Foreign Citizen C. After issuance of the ruling,
   Foreign Company forms a wholly-owned, foreign-organized subsidiary
   (“Foreign Subsidiary”) to hold all of Foreign Company's shares in U.S.
   Parent A. There are no other changes in the direct or indirect foreign
   ownership of U.S. Parent A. The insertion of Foreign Subsidiary into
   the vertical ownership chain between Foreign Company and U.S. Parent A
   would not require prior Commission approval, except for any approval
   otherwise required pursuant to section 310(d) of the Communications Act
   and not exempt therefrom as a pro forma transfer of control under
   § 1.948(c)(1).
   Example (for rulings issued under § 1.5000(a)(2)). An applicant for a
   common carrier license receives a foreign ownership ruling under
   § 1.5000(a)(2) that authorizes a foreign-organized company (“Foreign
   Company”) to hold a non-controlling 44 percent equity and voting
   interest in the applicant through Foreign Company's wholly-owned,
   U.S.-organized subsidiary, U.S. Corporation A, which holds the
   non-controlling 44 percent interest directly in the applicant. The
   remaining 56 percent of the applicant's equity and voting interests are
   held by its controlling U.S.-organized parent, which has no foreign
   ownership. After issuance of the ruling, Foreign Company forms a
   wholly-owned, foreign-organized subsidiary to hold all of Foreign
   Company's shares in U.S. Corporation A. There are no other changes in
   the direct or indirect foreign ownership of U.S. Corporation A. The
   insertion of the foreign-organized subsidiary into the vertical
   ownership chain between Foreign Company and U.S. Corporation A would
   not require prior Commission approval.

   (d) Insertion of new non-controlling foreign-organized companies. (1)
   Where a licensee's foreign ownership ruling specifically authorizes a
   named, foreign investor to hold a non-controlling interest in the
   licensee's controlling U.S.-organized parent, for rulings issued under
   § 1.5000(a)(1), or in an intervening U.S.-organized entity that does not
   control the licensee, for rulings issued under § 1.5000(a)(2), the
   ruling shall permit the insertion of new, foreign-organized companies
   in the vertical ownership chain above the controlling U.S. parent, for
   rulings issued under § 1.5000(a)(1), or above an intervening
   U.S.-organized entity that does not control the licensee, for rulings
   issued under § 1.5000(a)(2), without prior Commission approval provided
   that any new foreign-organized company(ies) are under 100 percent
   common ownership and control with the foreign investor approved in the
   ruling.

   Note to paragraph (d)(1): Where a licensee has received a foreign
   ownership ruling under § 1.5000(a)(2) and the ruling specifically
   authorizes a named, foreign investor to hold a non-controlling interest
   directly in the licensee (subject to the 20 percent aggregate limit on
   direct foreign investment), the ruling shall permit the insertion of
   new, foreign-organized companies in the vertical ownership chain of the
   approved foreign investor without prior Commission approval provided
   that any new foreign-organized companies are under 100 percent common
   ownership and control with the approved foreign investor.
   Example (for rulings issued under § 1.5000(a)(1)). Licensee receives a
   foreign ownership ruling under § 1.5000(a)(1) that authorizes a
   foreign-organized company (“Foreign Company”) to hold a non-controlling
   30 percent equity and voting interest in Licensee's controlling,
   U.S.-organized parent (“U.S. Parent A”). The remaining 70 percent
   equity and voting interests in U.S. Parent A are held by U.S.-organized
   entities which have no foreign ownership. After issuance of the ruling,
   Foreign Company forms a wholly-owned, foreign-organized subsidiary
   (“Foreign Subsidiary”) to hold all of Foreign Company's shares in U.S.
   Parent A. There are no other changes in the direct or indirect foreign
   ownership of U.S. Parent A. The insertion of Foreign Subsidiary into
   the vertical ownership chain between Foreign Company and U.S. Parent A
   would not require prior Commission approval.
   Example (for rulings issued under § 1.5000(a)(2)). Licensee receives a
   foreign ownership ruling under § 1.5000(a)(2) that authorizes a
   foreign-organized entity (“Foreign Company”) to hold approximately 24
   percent of Licensee's equity and voting interests, through Foreign
   Company's non-controlling 48 percent equity and voting interest in a
   U.S.-organized entity, U.S. Corporation A, which holds a
   non-controlling 49 percent equity and voting interest directly in
   Licensee. (A U.S. citizen holds the remaining 52 percent equity and
   voting interests in U.S. Corporation A, and the remaining 51 percent
   equity and voting interests in Licensee are held by its U.S.-organized
   parent, which has no foreign ownership. After issuance of the ruling,
   Foreign Company forms a wholly-owned, foreign-organized subsidiary
   (“Foreign Subsidiary”) to hold all of Foreign Company's shares in U.S.
   Corporation A. There are no other changes in the direct or indirect
   foreign ownership of U.S. Corporation A. The insertion of Foreign
   Subsidiary into the vertical ownership chain between Foreign Company
   and U.S. Corporation A would not require prior Commission approval.

   (2) Where a previously unapproved foreign-organized entity is inserted
   into the vertical ownership chain of a licensee, or its controlling
   U.S.-organized parent, without prior Commission approval pursuant to
   paragraph (d)(1) of this section, the licensee shall file a letter to
   the attention of the Chief, International Bureau, within 30 days after
   the insertion of the new, foreign-organized entity; or in the case of a
   broadcast licensee, the licensee shall file a letter to the attention
   of the Chief, Media Bureau, within 30 days after the insertion of the
   new, foreign-organized entity. The letter must include the name of the
   new, foreign-organized entity and a certification by the licensee that
   the entity complies with the 100 percent common ownership and control
   requirement in paragraph (d)(1) of this section. The letter must also
   reference the licensee's foreign ownership ruling(s) by IBFS File No.
   and FCC Record citation, if available; or, if a broadcast licensee, the
   letter must reference the licensee's foreign ownership ruling(s) by
   CDBS File No., Docket No., call sign(s), facility identification
   number(s), and FCC Record citation, if available. This letter
   notification need not be filed if the ownership change is instead the
   subject of a pro forma application or pro forma notification already
   filed with the Commission pursuant to the relevant broadcast service,
   wireless radio service rules or satellite radio service rules
   applicable to the licensee.

   (e) New petition for declaratory ruling required. A licensee that has
   received a foreign ownership ruling, including a U.S.-organized
   successor-in-interest to such licensee formed as part of a pro forma
   reorganization, or any subsidiary or affiliate relying on such
   licensee's ruling pursuant to paragraph (b) of this section, shall file
   a new petition for declaratory ruling under § 1.5000 to obtain
   Commission approval before its foreign ownership exceeds the routine
   terms and conditions of this section, and/or any specific terms or
   conditions of its ruling.

   (f) Continuing compliance. (1) Except as specified in paragraph (f)(3)
   of this section, if at any time the licensee, including any
   successor-in-interest and any subsidiary or affiliate as described in
   paragraph (b) of this section, knows, or has reason to know, that it is
   no longer in compliance with its foreign ownership ruling or the
   Commission's rules relating to foreign ownership, it shall file a
   statement with the Commission explaining the circumstances within 30
   days of the date it knew, or had reason to know, that it was no longer
   in compliance therewith. Subsequent actions taken by or on behalf of
   the licensee to remedy its non-compliance shall not relieve it of the
   obligation to notify the Commission of the circumstances (including
   duration) of non-compliance. Such licensee and any controlling
   companies, whether U.S.- or foreign-organized, shall be subject to
   enforcement action by the Commission for such non-compliance, including
   an order requiring divestiture of the investor's direct and/or indirect
   interests in such entities.

   (2) Any individual or entity that, directly or indirectly, creates or
   uses a trust, proxy, power of attorney, or any other contract,
   arrangement, or device with the purpose or effect of divesting itself,
   or preventing the vesting, of an equity interest or voting interest in
   the licensee, or in a controlling U.S. parent company, as part of a
   plan or scheme to evade the application of the Commission's rules or
   policies under section 310(b) shall be subject to enforcement action by
   the Commission, including an order requiring divestiture of the
   investor's direct and/or indirect interests in such entities.

   (3) Where the controlling U.S. parent of a broadcast, common carrier,
   aeronautical en route, or aeronautical fixed radio station licensee or
   common carrier spectrum lessee is an eligible U.S. public company
   within the meaning of § 1.5000(e), the licensee may file a remedial
   petition for declaratory ruling under § 1.5000(a)(1) seeking approval of
   particular foreign equity and/or voting interests that are
   non-compliant with the licensee's foreign ownership ruling or the
   Commission's rules relating to foreign ownership; or, alternatively,
   the licensee may remedy the non-compliance by, for example, redeeming
   the foreign interest(s) that rendered the licensee non-compliant with
   the licensee's existing foreign ownership ruling. In either case, the
   Commission does not expect to take enforcement action related to the
   non-compliance subject to the requirements specified in paragraphs
   (f)(3)(i) and (ii) of this section and except as otherwise provided in
   paragraph (f)(3)(iii) of this section.

   (i) The licensee shall notify the relevant Bureau by letter no later
   than 10 days after learning of the investment(s) that rendered the
   licensee non-compliant with its foreign ownership ruling or the
   Commission's rules relating to foreign ownership and specify in the
   letter that it will file a petition for declaratory ruling under
   § 1.5000(a)(1) or, alternatively, take remedial action to come into
   compliance within 30 days of the date it learned of the non-compliant
   foreign interest(s).

   (ii) The licensee shall demonstrate in its petition for declaratory
   ruling (or in a letter notifying the relevant Bureau that the
   non-compliance has been timely remedied) that the licensee's
   non-compliance with the terms of the licensee's existing foreign
   ownership ruling or the foreign ownership rules was due solely to
   circumstances beyond the licensee's control that were not reasonably
   foreseeable to or known by the licensee with the exercise of the
   required due diligence.

   (iii) Where the licensee has opted to file a petition for declaratory
   ruling under § 1.5000(a)(1), the Commission will not require that the
   licensee's U.S. parent redeem the non-compliant foreign interest(s) or
   take other action to remedy the non-compliance during the pendency of
   the licensee's petition. If the Commission ultimately declines to
   approve the petition, however, the licensee must have a mechanism
   available to come into compliance with the terms of its existing ruling
   within 30 days following the Commission's decision. The Commission
   reserves the right to require immediate remedial action by the licensee
   where the Commission finds in a particular case that the public
   interest requires such action—for example, where, after consultation
   with the relevant Executive Branch agencies, the Commission finds that
   the non-compliant foreign interest presents national security or other
   significant concerns that require immediate mitigation.

   (4) Where a publicly traded common carrier licensee is an eligible U.S.
   public company within the meaning of § 1.5000(e), the licensee may file
   a remedial petition for declaratory ruling under § 1.5000(a)(2) seeking
   approval of particular foreign equity and/or voting interests that are
   non-compliant with the licensee's foreign ownership ruling or the
   Commission's rules relating to foreign ownership; or, alternatively,
   the licensee may remedy the non-compliance by, for example, redeeming
   the foreign interest(s) that rendered the licensee non-compliant with
   the licensee's existing foreign ownership ruling. In either case, the
   Commission does not, as a general rule, expect to take enforcement
   action related to the non-compliance subject to the requirements
   specified in paragraphs (f)(3)(i) and (f)(3)(ii) of this section and
   except as otherwise provided in paragraph (f)(3)(iii) of this section.

   Note 1 to paragraph (f)(4): For purposes of this paragraph, the
   provisions in paragraphs (f)(3)(i) through (f)(3)(iii) that refer to
   petitions for declaratory ruling under § 1.5000(a)(1) shall be read as
   referring to petitions for declaratory ruling under § 1.5000(a)(2).

   

Subpart U—State and Local Government Regulation of the Placement,
Construction, and Modification of Personal Wireless Service Facilities

   Source:  83 FR 51884 , Oct. 15, 2018, unless otherwise noted.