June 21, 1999
I write separately, on this bureau-level decision, not because I disagree with either its analysis or its outcome. To the contrary. I had merely hoped to exercise my role as a Commissioner, and to participate in the review of a merger of substantial size and with international ramifications.
The new Vodafone Airtouch will have a market capitalization of $110 billion, reach nearly one billion people in 23 countries, and be the largest wireless telecommunications company in the world by a substantial margin. Domestically, the merger will certainly affect AirTouch's nearly 12 million subscribers.
Because of the impact on a substantial portion of the American public, and because the merger implicates foreign ownership and national security under our nascent WTO Implementation Order, this merger warranted the attention of the full Commission, as opposed to its staff. Certainly, pursuant to Section 5(c)(1) of the Communications Act, we may delegate many of our functions to our professional staff, including merger review. Section 0.5(c) of our Rules, interpreting that grant of statutory authority, holds that "the Commission has delegated authority to its staff to act on matters which are minor or routine or settled in nature and those in which immediate action is necessary."(1) (emphasis added)
Neither the size of this merger nor the issues it raises, should be deemed "minor or routine." Today, however, our staff is directed to resolve on its own significant issues affecting national security and law enforcement. In our WTO Implementation Order, we explained that "foreign participation in the U.S. telecommunications market may implicate significant national security or law enforcement issues uniquely within the expertise of the Executive Branch. The Commission will consider any such legitimate concerns as we undertake our own independent analysis of whether grant of a particular authorization is in the public interest."(2) Until we have more experience evaluating those concerns and conducting our own analysis, I fear that decisions on delegated authority will be without guidance. Indeed, only today did we receive a Petition to Adopt Conditions to Authorization and Licenses from the Department of Defense, the Department of Justice, and the Federal Bureau of Investigation, explaining that the parties had reached agreement on conditions necessary to satisfy their concerns. Belying any "independent review," the staff Order was adopted within hours. Furthermore, it fully recognizes that it covers terra nova: "We note that the Agreement reflects a unique situation, and contains terms that, if broadly applied, would have significant consequences for the telecommunications industry." It continues: "[Certain] provision[s]. . . if viewed as precedent for other service providers and potential investors, would warrant further inquiry. . . ."(3) Minor? Routine?
I regret the loss of an opportunity to assess these important issues. What further disturbs me is the extraordinary precedent of a Commissioner being denied a request for Commission review of a non-routine matter. No Commissioner should be required to ask for an opportunity to perform her duty under law.
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2. Rules and Policies on Foreign Participation in the U.S. Telecommunications Market, Report and Order and Order on Reconsideration, 12 FCC Rcd 23,891 at ¶ 62 (1997).
3. Order at ¶ 23.