Goto Section: 1.990 | 1.992 | Table of Contents
FCC 1.991
Revised as of October 2, 2015
Goto Year:2014 |
2016
§ 1.991 Contents of petitions for declaratory ruling under the Communications
Act of 1934.
The petition for declaratory ruling required by § 1.990(a)(1) and/or
§ 1.990(a)(2) shall contain the following information:
(a) With respect to each petitioning applicant or licensee, provide its
name; FCC Registration Number (FRN); mailing address; place of organization;
telephone number; facsimile number (if available); electronic mail address
(if available); type of business organization (e.g., corporation,
unincorporated association, trust, general partnership, limited partnership,
limited liability company, trust, other (include description of legal
entity)); name and title of officer certifying to the information contained
in the petition.
(b) If the petitioning applicant or licensee is represented by a third party
(e.g., legal counsel), specify that individual's name, the name of the firm
or company, mailing address and telephone number/electronic mail address.
(c)(1) For each named licensee, list the type(s) of radio service authorized
(e.g., cellular radio telephone service; microwave radio service; mobile
satellite service; aeronautical fixed service).
(2) If the petition is filed in connection with an application for a radio
station license or a spectrum leasing arrangement, or an application to
acquire a license or spectrum leasing arrangement by assignment or transfer
of control, specify for each named applicant:
(i) The File No(s). of the associated application(s), if available at the
time the petition is filed; otherwise, specify the anticipated filing date
for each application; and
(ii) The type(s) of radio services covered by each application (e.g.,
cellular radio telephone service; microwave radio service; mobile satellite
service; aeronautical fixed service).
(d) With respect to each petitioner, include a statement as to whether the
petitioner is requesting a declaratory ruling under § 1.990(a)(1) and/or
§ 1.990(a)(2).
(e)(1) Direct U.S. or foreign interests of ten percent or more or a
controlling interest. With respect to petitions filed under § 1.990(a)(1),
provide the name of any individual or entity that holds, or would hold,
directly 10 percent or more of the equity interests and/or voting interests,
or a controlling interest, in the controlling U.S. parent of the petitioning
common carrier or aeronautical radio station applicant(s) or licensee(s) as
specified in paragraphs (e)(1)(i) through (e)(4)(iv) of this section.
(2) Direct U.S or foreign interests of ten percent or more or a controlling
interest. With respect to petitions filed under § 1.990(a)(2), provide the
name of any individual or entity that holds, or would hold, directly 10
percent or more of the equity interests and/or voting interests, or a
controlling interest, in each petitioning common carrier applicant or
licensee as specified in paragraphs (e)(1)(i) through (e)(4)(ii) of this
section.
(3) Where no individual or entity holds, or would hold, directly 10 percent
or more of the equity interests and/or voting interests, or a controlling
interest, in the controlling U.S. parent (for petitions filed under
§ 1.990(a)(1)) or in the applicant or licensee (for petitions filed under
§ 1.990(a)(2)), the petition shall state that no individual or entity holds
or would hold directly 10 percent or more of the equity interests and/or
voting interests, or a controlling interest, in the U.S. parent, applicant
or licensee.
(4)(i) Where a named U.S. parent, applicant, or licensee is organized as a
corporation, provide the name of any individual or entity that holds, or
would hold, 10 percent or more of the outstanding capital stock and/or
voting stock, or a controlling interest.
(ii) Where a named U.S. parent, applicant, or licensee is organized as a
general partnership, provide the names of the partnership's constituent
general partners.
(iii) Where a named U.S. parent, applicant, or licensee is organized as a
limited partnership or limited liability partnership, provide the name(s) of
the general partner(s) (in the case of a limited partnership), any
uninsulated partner(s), and any insulated partner(s) with an equity interest
in the partnership of at least 10 percent (calculated according to the
percentage of the partner's capital contribution). With respect to each
named partner (other than a named general partner), the petitioner shall
state whether the partnership interest is insulated or uninsulated, based on
the insulation criteria specified in § 1.993.
(iv) Where a named U.S. parent, applicant, or licensee is organized as a
limited liability company, provide the name(s) of each uninsulated member,
regardless of its equity interest, any insulated member with an equity
interest of at least 10 percent (calculated according to the percentage of
its capital contribution), and any non-equity manager(s). With respect to
each named member, the petitioner shall state whether the interest is
insulated or uninsulated, based on the insulation criteria specified in
§ 1.993, and whether the member is a manager.
Note to paragraph (e): The Commission presumes that a general partner of a
general partnership or limited partnership has a controlling interest in the
partnership. A general partner shall in all cases be deemed to hold an
uninsulated interest in the partnership.
(f)(1) Indirect U.S or foreign interests of ten percent or more or a
controlling interest. With respect to petitions filed under § 1.990(a)(1),
provide the name of any individual or entity that holds, or would hold,
indirectly, through one or more intervening entities, 10 percent or more of
the equity interests and/or voting interests, or a controlling interest, in
the controlling U.S. parent of the petitioning common carrier or
aeronautical radio station applicant(s) or licensee(s). Equity interests and
voting interests held indirectly shall be calculated in accordance with the
principles set forth in § 1.992.
(2) Indirect U.S or foreign interests of ten percent or more or a
controlling interest. With respect to petitions filed under § 1.990(a)(2),
provide the name of any individual or entity that holds, or would hold,
indirectly, through one or more intervening entities, 10 percent or more of
the equity interests and/or voting interests, or a controlling interest, in
the petitioning common carrier radio station applicant(s) or licensee(s).
Equity interests and voting interests held indirectly shall be calculated in
accordance with the principles set forth in § 1.992.
(3) Where no individual or entity holds, or would hold, indirectly 10
percent or more of the equity interests and/or voting interests, or a
controlling interest, in the controlling U.S. parent (for petitions filed
under § 1.990(a)(1)) or in the petitioning applicant(s) or licensee(s) (for
petitions filed under § 1.990(a)(2)), the petition shall specify that no
individual or entity holds indirectly 10 percent or more of the equity
interests and/or voting interests, or a controlling interest, in the U.S.
parent, applicant(s), or licensee(s).
Note to paragraph (f): The Commission presumes that a general partner of a
general partnership or limited partnership has a controlling interest in the
partnership. A general partner shall in all cases be deemed to hold an
uninsulated interest in the partnership.
(g) For each 10 percent interest holder named in response to paragraphs (e)
and (f) of this section, specify the equity interest held and the voting
interest held (each to the nearest one percent); in the case of an
individual, his or her citizenship; and in the case of a business
organization, its place of organization, type of business organization
(e.g., corporation, unincorporated association, trust, general partnership,
limited partnership, limited liability company, trust, other (include
description of legal entity)), and principal business(es).
(h)(1) Estimate of aggregate foreign ownership. For petitions filed under
§ 1.990(a)(1), attach an exhibit that provides a percentage estimate of the
controlling U.S. parent's aggregate direct and/or indirect foreign equity
interests and its aggregate direct and/or indirect foreign voting interests.
For petitions filed under § 1.990(a)(2), attach an exhibit that provides a
percentage estimate of the aggregate foreign equity interests and aggregate
foreign voting interests held directly in the petitioning applicant(s)
and/or licensee(s), if any, and the aggregate foreign equity interests and
aggregate foreign voting interests held indirectly in the petitioning
applicant(s) and/or licensee(s). The exhibit required by this paragraph must
also provide a general description of the methods used to determine the
percentages; and a statement addressing the circumstances that prompted the
filing of the petition and demonstrating that the public interest would be
served by grant of the petition.
(2) Ownership and control structure. Attach an exhibit that describes the
ownership and control structure of the applicant(s) and/or licensee(s) that
are the subject of the petition, including an ownership diagram and
identification of the real party-in-interest disclosed in any companion
applications. The ownership diagram should illustrate the petitioner's
vertical ownership structure, including the controlling U.S. parent named in
the petition (for petitions filed under § 1.990(a)(1)) and the direct and
indirect ownership (equity and voting) interests held by the individual(s)
and/or entity(ies) named in response to paragraphs (e) and (f) of this
section. Each such individual or entity shall be depicted in the ownership
diagram and all controlling interests labeled as such. Where the petition
includes multiple petitioners, the ownership of all petitioners may be
depicted in a single ownership diagram or in multiple diagrams.
(i) Requests for specific approval. Provide, as required or permitted by
this paragraph, the name of each foreign individual and/or entity for which
each petitioner requests specific approval, if any, and the respective
percentages of equity and/or voting interests (to the nearest one percent)
that each such foreign individual or entity holds, or would hold, directly
and/or indirectly, in the controlling U.S. parent of the petitioning common
carrier or aeronautical radio station applicant(s) or licensee(s) for
petitions filed under § 1.990(a)(1), and in each petitioning common carrier
applicant or licensee for petitions filed under § 1.990(a)(2).
(1) Each petitioning common carrier or aeronautical radio station applicant
or licensee filing under § 1.990(a)(1) shall identify and request specific
approval for any foreign individual, entity, or group of such individuals or
entities that holds, or would hold, directly and/or indirectly, more than 5
percent of the equity and/or voting interests, or a controlling interest, in
the petitioner's controlling U.S. parent unless the foreign investment is
exempt under paragraph (i)(3) of this section. Equity and voting interests
shall be calculated in accordance with the principles set forth in
paragraphs (e) and (f) of this section and in § 1.992.
(2) Each petitioning common carrier radio station applicant or licensee
filing under § 1.990(a)(2) shall identify and request specific approval for
any foreign individual, entity, or group of such individuals or entities
that holds, or would hold, directly, and/or indirectly through one or more
intervening U.S.-organized entities that do not control the applicant or
licensee, more than 5 percent of the equity and/or voting interests in the
applicant or licensee unless the foreign investment is exempt under
paragraph (i)(3) of this section. Equity and voting interests shall be
calculated in accordance with the principles set forth in paragraphs (e) and
(f) of this section and in § 1.992.
:Note to paragraphs (i)(1) and (2): Two or more individuals or entities will
be treated as a “group” when they have agreed to act together for the
purpose of acquiring, holding, voting, or disposing of their equity and/or
voting interests in the licensee and/or controlling U.S. parent of the
licensee or in any intermediate company(ies) through which any of the
individuals or entities holds its interests in the licensee and/or
controlling U.S. parent of the licensee.
(3) A foreign investment is exempt from the specific approval requirements
of paragraphs (i)(1) and (2) of this section where:
(i) The foreign individual or entity holds, or would hold, directly and/or
indirectly, no more than 10 percent of the equity and/or voting interests of
the U.S. parent (for petitions filed under § 1.990(a)(1)) or the petitioning
applicant or licensee (for petitions filed under § 1.990(a)(2)); and
(ii) The foreign individual or entity does not hold, and would not hold, a
controlling interest in the petitioner or any controlling parent company,
does not plan or intend to change or influence control of the petitioner or
any controlling parent company, does not possess or develop any such
purpose, and does not take any action having such purpose or effect. The
Commission will presume, in the absence of evidence to the contrary, that
the following interests satisfy this criterion for exemption from the
specific approval requirements in paragraphs (i)(1) and (i)(2) of this
section:
(A) Where the relevant licensee, controlling U.S. parent, or entity holding
a direct or indirect equity and/or voting interest in the licensee or U.S.
parent is a “public company,” as defined in § 1.990(d)(9), provided that the
foreign holder is an institutional investor that is eligible to report its
beneficial ownership interests in the company's voting, equity securities in
excess of 5 percent (not to exceed 10 percent) pursuant to Exchange Act Rule
13d-1(b), 17 CFR 240.13d-1(b), or a substantially comparable foreign law or
regulation. This presumption shall not apply if the foreign individual,
entity or group holding such interests is obligated to report its holdings
in the company pursuant to Exchange Act Rule 13d-1(a), 17 CFR 240.13d-1(a),
or a substantially comparable foreign law or regulation.
Example. Common carrier applicant (“Applicant”) is preparing a petition for
declaratory ruling to request Commission approval for foreign ownership of
its controlling, U.S.-organized parent (“U.S. Parent”) to exceed the 25
percent benchmark in section 310(b)(4) of the Act. Applicant does not
currently hold any FCC licenses. Shares of U.S. Parent trade publicly on the
New York Stock Exchange. Based on a shareholder survey and a review of its
shareholder records, U.S. Parent has determined that its aggregate foreign
ownership on any given day may exceed an aggregate 25 percent, including a
six percent common stock interest held by a foreign-organized mutual fund
(“Foreign Fund”). U.S. Parent has confirmed that Foreign Fund is not
currently required to report its interest pursuant to Exchange Act Rule
13d-1(a) and instead is eligible to report its interest pursuant to Exchange
Act Rule 13d-1(b). U.S. Parent also has confirmed that Foreign Fund does not
hold any other interests in U.S. Parent's equity securities, whether of a
class of voting or non-voting securities. Applicant may, but is not required
to, request specific approval of Foreign Fund's six percent interest in U.S.
Parent.
Note to paragraph (i)(3)(ii)(A): Where an institutional investor holds
voting, equity securities that are subject to reporting under Exchange Act
Rule 13d-1, 17 CFR 240.13d-1, or a substantially comparable foreign law or
regulation, and equity securities that are not subject to such reporting the
investor's total capital stock interests may be aggregated and treated as
exempt from the 5 percent specific approval requirement in paragraphs (i)(1)
and (2) of this section so long as the aggregate amount of the institutional
investor's holdings does not exceed ten percent of the company's total
capital stock or voting rights and the investor is eligible to certify under
Exchange Act Rule 13d-1(b), 17 CFR 240.13d-1(b), or a substantially
comparable foreign law or regulation that it has acquired its capital stock
interests in the ordinary course of business and not with the purpose nor
with the effect of changing or influencing the control of the company. In
calculating foreign equity and voting interests, the Commission does not
consider convertible interests such as options, warrants and convertible
debentures until converted, unless specifically requested by the petitioner,
i.e., where the petitioner is requesting approval so those rights can be
exercised in a particular case without further Commission approval.
(B) Where the relevant licensee, controlling U.S. parent, or entity holding
a direct and/or indirect equity and/or voting interest in the licensee or
U.S. parent is a “privately held” corporation, as defined in § 1.990(d)(8),
provided that a shareholders' agreement, or similar voting agreement,
prohibits the foreign holder from becoming actively involved in the
management or operation of the corporation and limits the foreign holder's
voting and consent rights, if any, to the minority shareholder protections
listed in paragraph (i)(5) of this section.
(C) Where the relevant licensee, controlling U.S. parent, or entity holding
a direct and/or indirect equity and/or voting interest in the licensee or
U.S. parent is “privately held,” as defined in § 1.990(d)(8), and is
organized as a limited partnership, limited liability company (“LLC”), or
limited liability partnership (“LLP”), provided that the foreign holder is
“insulated” in accordance with the criteria specified in § 1.993.
(4) A petitioner may, but is not required to, request specific approval for
any other foreign individual or entity that holds, or would hold, a direct
and/or indirect equity and/or voting interest in the controlling U.S. parent
(for petitions filed under § 1.990(a)(1)) or in the petitioning applicant or
licensee (for petitions filed under § 1.990(a)(2)).
(5) The minority shareholder protections referenced in paragraph
(i)(3)(ii)(B) of this section consist of the following rights:
(i) The power to prevent the sale or pledge of all or substantially all of
the assets of the corporation or a voluntary filing for bankruptcy or
liquidation;
(ii) The power to prevent the corporation from entering into contracts with
majority shareholders or their affiliates;
(iii) The power to prevent the corporation from guaranteeing the obligations
of majority shareholders or their affiliates;
(iv) The power to purchase an additional interest in the corporation to
prevent the dilution of the shareholder's pro rata interest in the event
that the corporation issues additional instruments conveying shares in the
company;
(v) The power to prevent the change of existing legal rights or preferences
of the shareholders, as provided in the charter, by-laws or other operative
governance documents;
(vi) The power to prevent the amendment of the charter, by-laws or other
operative governance documents of the company with respect to the matters
described in paragraphs (i)(5)(i) through (v) of this section.
(6) The Commission reserves the right to consider, on a case-by-case basis,
whether voting or consent rights over matters other than those listed in
paragraph (i)(5) of this section shall be considered permissible minority
shareholder protections in a particular case.
(j) For each foreign individual or entity named in response to paragraph (i)
of this section, provide the following information:
(1) In the case of an individual, his or her citizenship and principal
business(es);
(2) In the case of a business organization:
(i) Its place of organization, type of business organization (e.g.,
corporation, unincorporated association, trust, general partnership, limited
partnership, limited liability company, trust, other (include description of
legal entity)), and principal business(es);
(ii) The name of any individual or entity that holds, or would hold,
directly and/or indirectly, through one or more intervening entities, 10
percent or more of the equity interests and/or voting interests, or a
controlling interest, in the foreign entity for which the petitioner
requests specific approval. Specify for each such interest holder, his or
her citizenship (for individuals) or place of legal organization (for
entities). Equity interests and voting interests held indirectly shall be
calculated in accordance with the principles set forth in § 1.992.
(iii) Where no individual or entity holds, or would hold, directly and/or
indirectly, 10 percent or more of the equity interests and/or voting
interests, or a controlling interest, the petition shall specify that no
individual or entity holds, or would hold, directly and/or indirectly, 10
percent or more of the equity interests and/or voting interests, or a
controlling interest, in the foreign entity for which the petitioner
requests specific approval.
(k) Requests for advance approval. The petitioner may, but is not required
to, request advance approval in its petition for any foreign individual or
entity named in response to paragraph (i) of this section to increase its
direct and/or indirect equity and/or voting interests in the controlling
U.S. parent of the common carrier or aeronautical radio station licensee,
for petitions filed under § 1.990(a)(1), and/or in the common carrier
licensee, for petitions filed under § 1.990(a)(2), above the percentages
specified in response to paragraph (i) of this section. Requests for advance
approval shall be made as follows:
(1) Petitions filed under § 1.990(a)(1). Where a foreign individual or entity
named in response to paragraph (i) of this section holds, or would hold upon
consummation of any transactions described in the petition, a de jure or de
facto controlling interest in the controlling U.S. parent, the petitioner
may request advance approval in its petition for the foreign individual or
entity to increase its interests, at some future time, up to any amount,
including 100 percent of the direct and/or indirect equity and/or voting
interests in the U.S. parent. The petitioner shall specify for the named
controlling foreign individual(s) or entity(ies) the maximum percentages of
equity and/or voting interests for which advance approval is sought or, in
lieu of a specific amount, state that the petitioner requests advance
approval for the named controlling foreign individual or entity to increase
its interests up to and including 100 percent of the U.S. parent's direct
and/or indirect equity and/or voting interests.
(2) Petitions filed under § 1.990(a)(1) and/or § 1.990(a)(2). Where a foreign
individual or entity named in response to paragraph (i) of this section
holds, or would hold upon consummation of any transactions described in the
petition, a non-controlling interest in the controlling U.S. parent of the
licensee, for petitions filed under § 1.990(a)(1), or in the licensee, for
petitions filed under § 1.990(a)(2), the petitioner may request advance
approval in its petition for the foreign individual or entity to increase
its interests, at some future time, up to any non-controlling amount not to
exceed 49.99 percent. The petitioner shall specify for the named foreign
individual(s) or entity(ies) the maximum percentages of equity and/or voting
interests for which advance approval is sought or, in lieu of a specific
amount, shall state that the petitioner requests advance approval for the
named foreign individual(s) or entity(ies) to increase their interests up to
and including a non-controlling 49.99 percent equity and/or voting interest
in the licensee, for petitions filed under § 1.990(a)(2), or in the
controlling U.S. parent of the licensee, for petitions filed under
§ 1.990(a)(1).
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