On April 4, President Donald Trump released an Executive Order (the “Order”) to create the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector (the “Committee”).  The purpose of the Committee will be to assist the FCC in its obligation to protect the U.S. public interest, in particular the “security, integrity, and availability of United States telecommunications networks.”

The Order formalizes a longstanding executive branch review process called “Team Telecom” by defining the composition of the Committee and its reviewing process.  The Team Telecom review process – relatively opaque and poorly documented – could lead to significant delays in the FCC issuing final decisions on applications for licenses, certificates, or other authorizations.  The Order seeks to address the problems of its predecessor by establishing transparent and consistent procedures for evaluating applications and licences of foreign entities, and improving the effectiveness and timeliness of the review.

The Committee will be composed of the Secretary of Defense, the Attorney General, (who will also Chair the Committee), the Secretary of Homeland Security, and any other department or agency executive selected by the President.  A larger group – including the Secretaries of State, Treasury, and Commerce, among others – will be Committee Advisors, and will have a more limited role.  The Chair is responsible for naming one or more Lead Members who may be assigned additional responsibilities, such as monitoring compliance with mitigation measures.

The Committee has two review responsibilities: first, to evaluate applications referred by the FCC for possible risks to national security and law enforcement interests; and second, to recommend any mitigation measures necessary to address those risks.  The Order gives the Committee authority to submit questions or requests for information directly to the applicants, as necessary to its review.  To aid the review, the Order requires the Director of National Intelligence to prepare a written assessment of any threat to U.S. national security interests caused by granting the application or maintaining the underlying authorization.

During the initial review, the Committee will determine if granting an application or transferring a license raises a risk, and if such risk can be addressed through standard mitigation measures.  Should the Committee consider that standard measures are insufficient, it may make a secondary assessment.

The Order directs the Committee to complete initial review of each application within 120 days after the applicant’s response to any questions or information requests has been deemed complete; if a “secondary assessment” is needed, the Committee must complete that secondary assessment within an additional 90 days.

The Committee is also empowered to respond to any perceived risk by providing recommendations to the FCC.  To address such risks, the Committee may recommend from among a range of options, including that the FCC grant or deny an application, condition or modify the associated authorization to include mitigation measures, or revoke an authorization previously issued.  The Committee must base its recommendation on a written risk-based analysis produced by the Committee Member entity or entities proposing the action.

Before recommending denial of an application or revocation of a license, or recommending any non-standard measure, the Members shall notify the Advisors who shall inform the Chair whether they oppose the recommendation within 21 days.  The Order directs the Committee to attempt to reach consensus, if possible.  Otherwise, there is a complicated, multi-layer hierarchy of voting and tie-breaking processes.  The Committee Chair must notify the President of any intended recommendations (and any opposition thereto) within 7 days of a majority vote, and the FCC must be notified no earlier than 15 days after the date on which the President was advised.

Finally, the Committee is responsible for monitoring compliance with license conditions or other measures imposed by the FCC as a result of the Committee’s recommendation.  The Committee and the FCC shall develop methods for monitoring compliance with mitigation measures, and will make recommendations for implementing further enforcement actions when necessary.

Within 90 days from the date of the Order, the Committee Members with the Director of National Intelligence shall enter into a Memorandum of Understanding defining, among other things, the standard mitigation measures, and describing their plan to implement and execute the Order.  We await the Committee Memorandum of Understanding detailing the mitigation measures they will be recommending.