A fundamental misunderstanding: FCC implementation of U.S. WTO commitments.

(1.) Cindy J. Cho, Note, Deal or No Deal: Reinterpreting the FCC's Foreign Ownership Rules for a Fair Game, 60 FED. COMM. L.J. 111 (2008).

(2.) Id. at 134.

(3.) Communications Act of 1934, ch. 652, 48 Stat. 1064 (codified as amended in scattered sections 47 U.S.C.).

(4.) While 47 U.S.C. [section] 310(b) also applies to aeronautical licenses, this Article is limited to a discussion of broadcast and common carrier licenses.

(5.) Act of Jan. 21, 1974, Pub. L. No. 93-505, [section] 2, 88 Star. 1576, 1576 (1974) (amending the Communications Act of 1934 permitting the FCC to grant radio station licenses directly to aliens).

(6.) 47 U.S.C. [section] 310(b)(4).

(7.) Market Entry and Regulation of Foreign-Affiliated Entities, Report and Order, 11 F.C.C.R. 3873, para. 183 (1996) [hereinafter Foreign Carrier Entry Order]; James G. Ennis & David N. Roberts, Foreign Ownership in U.S. Communications Industry: The Impact of Section 310, 19 INT'L BUS. LAW. 243, 245 (1991).

(8.) Cho, supra note 1, at 177. Ms. Cho says that the 1996 Act did not change the foreign ownership provisions, but this is not correct. The 1996 Act removed the flat prohibition in [section] 310(b)(3) on granting a broadcast, common carrier or aeronautical license to U.S. companies with any non-U.S, nationals as an officer or director and the discretionary prohibition in [section] 310(b)(4) on granting such licenses to companies with any non-national U.S. officer or non-U.S. nationals comprising more than twenty-five percent of the board of directors.

(9.) 47 U.S.C. [section] 214 (concerning authorization of common carrier facilities and services).

(10.) Rules and Policies on Foreign Participation in the U.S. Telecomms. Market, Report and Order and Order on Reconsideration, 12 F.C.C.R. 23891, para. 14 (1997) [hereinafter Foreign Participation Order].

(11.) Cho, supra note 1, at 119, 129.

(12.) North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 605 (1993) [hereinafter NAFTA].

(13.) The first trade agreement to include services was the U.S.-Canada Free Trade Agreement, which was concluded in 1988 and was subsumed by NAFTA when that agreement entered into force. See MESSAGE FROM THE PRESIDENT OF THE UNITED STATES TRANSMITTING THE NORTH AMERICAN FREE TRADE AGREEMENT, TEXTS OF AGREEMENT, IMPLEMENTING BILL, STATEMENT OF ADMINISTRATIVE ACTION AND REQUIRED SUPPORTING STATEMENTS, H.R. Doc. NO. 103-159, at 457 (1993) [hereinafter STATEMENT OF ADMINISTRATIVE ACTION].

(14.) NAFTA, supra note 12, at Article 1139.

(15.) Id. at Article 1102 (1)-(2).

(16.) Id. at Article 1202.

(17.) See id. at Articles 1108, 1206.

(18.) STATEMENT OF ADMINISTRATIVE ACTION, supra note 13, at 602-03.

(19.) NAFTA, supra note 12, at Annex II.

(20.) Cho, supra note 1, at 129.

(21.) 47 U.S.C. [section] 325 (2000).

(22.) See, e.g., Metro Networks Comm., Inc., Memorandum Opinion and Order, 20 F.C.C.R. 2474 (2005).

(23.) These agreements can be found at the FCC, International Bureau, International Agreements, http://www.fcc.gov/ib/sand/agree (last visited Feb. 4, 2009). See Note No. 192 from John de Chastelain, Canadian Ambassador, to Warren M. Christopher, United States Secretary of State, (Nov. 16, 1993) (attached to the Working Arrangement for Allotment and Assignment of VHF and UHF Television Broadcasting Channels under the Agreement between the Government of the United States of America and the Government of Canada relating to the TV Broadcasting Service (Mar. 1, 1989)), available at http://www.fcc.gov/ib/sand/agree/files/can-bc/can-tv.pdf.

(24.) Cho, supra note 1, at 129.

(25.) See Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 15, 1994 33 I.L.M. 1125 [hereinafter WTO Agreement].

(26.) Annex 1B General Agreement on Trade in Services, Apr. 15, 1994 33 I.L.M. 1167. [hereinafter GATS].

(27.) Id. at Article XX.

(28.) See World Trade Organization, Service Sectoral Classification List, Note by the Secretariat, WTO, MTN.GNS/W/120, July 10, 1991 [hereinafter W120], available at http://www.wto.org/english/tratop_e/serv_e/mtn_gns_w_120_e.doc. The GATS classification scheme was based on a United Nations effort to classify services, referred to as the Central Product Classification (Provisional). United Nations Statistics Division, Central Product Classification Provisional, [section] 7, [hereinafter CPCProv], available at http://unstats.un.org/unsd/cr/registry/regcst.asp?Cl=9&Lg=l (last visited Feb. 4, 2009).

(29.) Ministerial Decision on Negotiations on Basic Telecommunications, The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts 461 (GATT Secretariat 1994), available at 1994 WL 761488, at *16-17.

(30.) World Trade Organization, Coverage of Basic Telecommunications and ValueAdded Services, http://www.wto.org/english/tratop_e/serv_e/ telecom_e/telecom_coverage_e.htm#basic (last visited Feb. 4, 2009).

(31.) Id.

(32.) W120 lists "radio and television transmission services" as corresponding to CPCProv 7524, from which this description is taken. W120, supra note 28, at 4; CPCProv, supra note 28, at [section] 7-524.

(33.) GATS, supra note 26, Article XVI.

(34.) Id at Article XVII. Measures that are inconsistent with both market access and national treatment are entered in the market access column and also provide a condition or qualification to the national treatment commitment. Id. at Article XX(3).

(35.) U.S. Schedule of Specific Commitments, GATS/SC/90 (Apr. 15, 1994) at 46-48, [hereinafter U.S. Schedule 1994] available at http://docsonline.wto.org/GEN_viewerwindow.asp? http://docsonline.wto.org:80/DDFDocuments/t/SCHD/GATS-SC/SC90.WPF. The audio-visual services commitments were made as part of the Uruguay Round negotiations, which concluded in December 1993 and entered into force on January 1, 1995.

(36.) U.S. Schedule of Specific Commitments, Supplement 2, GATS/SC/90/Suppl.2 (Apr. 11, 1997) [hereinafter U.S. Schedule Supp. 2], available at http://docsonline.wto.org/GEN_viewerwindow.asp? http://docsonline.wto.org:80/DDFDocu ments/t/SCHD/GATS-SC/SC90S2.WPF. The commitments in basic telecommunications services were negotiated in a separate negotiation after the conclusion of the Uruguay Round and entered into force on February 5, 1998. A detailed description of the negotiations on basic telecommunications services and the results of those negotiations can be found in Laura B. Sherman, "Wildly Enthusiastic" About the First Multilateral Agreement on Trade in Telecommunications Services, 51 FED. COMM. L.J. 61 (1998).

(37.) U.S. Schedule 1994, supra note 35, at 48. Since the U.S. commitments on audiovisual services were undertaken in 1993, prior to the passage of the 1996 Act, the limitation mirrors the then-existing version of Section 310(b)(3) and (4), relating to nationality of officers and directors.

(38.) Id.

(39.) Sherman, supra note 36, at 67 (citing GATS, Negotiating Group on Basic Telecommunications, Report of the Meeting of 6 May 1994, TS/NGBT/1, para. 5 (June 10, 1994)).

(40.) The information is based on the author's participation in the WTO negotiations.

(41.) U.S. Schedule Supp. 2, supra note 36.

(42.) Id.

(43.) U.S. of Am., List of Article II (MFN) Exemptions, Supplement 2, GATS/EL/90/Suppl.2 (Apr. 11 1997), available at http://docsonline.wto.org/ DDFDocuments/t/SCHD/GATS-SC/SC90S2.WPF.

(44.) Cho, supra note 1, at 117.

(45.) Id

(46.) Foreign Carrier Entry Order, supra note 7, at para. 17.

(47.) Id. at para. 29.

(48.) Id. at para. 19.

(49.) Id. at para. 56.

(50.) Id. at para. 216.

(51.) Id.

(52.) Foreign Participation Order, supra note 10, at paras. 13-14.

(53.) Id.

(54.) Amendment of the Commission's Regulatory Policies to Allow Non-U.S. Licensed Space Stations to Provide Domestic and International Satellite Services in the United States, Report and Order, 12 F.C.C.R. 24094, para. 13 (1997) [hereinafter DISCO Ill.

(55.) Cho, supra note l, at 119.

(56.) Foreign Participation Order, supra note 10, at para. 61; DISCO II, supra note 52, at para. 178.

(57.) See, e.g., International Authorizations Granted, Public Notice, FCC DA No. 08-1905 (Aug. 14, 2008) (granting a transfer of control application for Helio LLC, subject to the condition that the transferee abide by the commitments made by Hello in a January 10, 2006 letter to the Department of Justice, Federal Bureau of Investigation and the Department of Homeland Security).

(58.) Foreign Carrier Entry Order, supra note 7, at para. 192.

(59.) Id. at para. 194.

(60.) FCC INT'L BUREAU, FOREIGN OWNERSHIP GUIDELINES FOR FEE COMMON CARRIER AND AERONAUTICAL RADIO LICENSES (2004) [hereinafter FOREIGN OWNERSHIP GUIDELINES], available at http://www.fcc.gov/ib/Foreign_Ownership_Guidelines Erratum.pdf.

(61.) Cho, supra note 1, at 117.

(62.) FOREIGN OWNERSHIP GUIDELINES, supra note 60, at 4.

(63.) Cho, supra note 1, at 133.

(64.) ADVISORY COMMITTEE ON DIVERSITY FOR COMMUNICATIONS IN THE DIGITAL AGE, RECOMMENDATION TO THE FCC: ADOPTION OF A DECLARATORY RULING ON SECTION 310(B)(4) WAIVERS (2004), available at http://www.fcc.gov/DiversityFAC/041210/foreign_ownership_rule.pdf.

(65.) Promoting Diversification of Ownership in the Broadcasting Industry, Report and Order and Third Further Notice of Proposed Rulemaking, 23 F.C.C.R. 5922, para. 77 (2008).

Laura B. Sherman, Ms. Sherman was the chief lawyer for the U.S. delegation to the WTO basic telecommunications negotiations from 1994 to 1997, while at the Office of the U.S. Trade Representative. She is now in private practice.

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