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Global Crossing Deal Runs Into Government Review Snag
Fri Feb 28, 7:27 PM ET
By Dennis K. Berman, Staff Reporter of The Wall Street Journal
NEW YORK -- A federal government panel overseeing foreign investment in the U.S. has rebuffed the initial plan of two Asian technology companies to take control of bankrupt telecom carrier Global Crossing Ltd. , citing national-security concerns over one of the company's links to China.
The companies, Singapore Technologies Telemedia Pte. Ltd. and Hong-Kong based Hutchison Whampoa Ltd., withdrew a regulatory application earlier this week following a contentious meeting with officials from a secretive multiagency task force called the Committee on Foreign Investment in the United States, according to people familiar with the matter.
At the meeting, officials told executives from the companies that they were set to take the rare step of launching a formal investigation into the deal over concerns about Hutchison's ties to China, these people said.
The companies decided to withdraw the bid and restructure it instead of risking the possibility that the government would move to block it, these people said. The wrangling underscores the government's difficult balancing act in approving cross-border technology deals in a post Sept. 11, 2001, world - at once weighing national security while trying not to stifle foreign investment into a beleaguered sector of the economy.
Global Crossing maintains a world-wide 100,000-mile fiber-optic network, including 20,000 miles of domestic fiber linking 14 cities. Though Global Crossing carries only a small amount of U.S. government traffic, military and security officials are concerned about the ability of the Chinese government or related companies to tap into those lines for spying or stealing U.S. corporate trade secrets, people close to the matter said. What most concerns some officials, however, is the possibility that foreign ownership could impair the U.S. government's ability to lay wiretaps and other electronic surveillance.
The latest moves also mark a continued shift for the Bush White House, which came into office sharply critical of the Clinton administration's efforts to curtail the sale of certain pieces of equipment and software to countries like China on national-security grounds, only to begin adopting similar policies after the devastating Sept. 11, 2001, terrorist attacks. The Bush administration is focusing on homeland security amid the build-up to a probable war with Iraq (news - web sites) and mounting tensions with North Korea (news - web sites), a Chinese ally.
One plan under consideration would have walled off a separate U.S. subsidiary, staffed with a board of U.S. citizens, to oversee the company's domestic assets. It was an imperfect solution, say people close to the matter, because the nature of Global Crossing's network means telecom traffic can be routed thousands of different ways, both through and outside the U.S.
What is now being considered, say these people, is a plan that would make Hutchison only a passive investor in Global Crossing. The company would essentially create a "proxy board" of four approved U.S. or allied citizens on the 10-person Global Crossing board of directors. A Hutchison director would also be prevented from serving as the reorganized company's chairman, as was planned by the companies' purchase agreement. "Instead of screening off the U.S. network from the parent, you'd be screening off Hutchison from the parent," says one person with knowledge of the plan, which hasn't yet been officially resubmitted for review.
Hutchison spokeswoman Laura Cheung said she couldn't comment on the confidential CFIUS process, but she expressed exasperation at suggestions Hutchison, or its Hong Kong-based chief executive Li Ka-shing, was an instrument of the Chinese government or that its Global Crossing investment could post a threat to U.S. security.
"The Chinese government doesn't have any officials on our board, and therefore has no influence at all over our business," she said.
The British government has already reviewed and cleared the transaction's national-security issues. Global Crossing operates a network for the country's embassies.
"We are not operators and will hold only hold 30.75% of the new Global Crossing," Ms. Cheung said.
Hutchison Whampoa is publicly traded on the Hong Kong and London stock exchanges. Among its U.S. ventures are a significant holding in online ticketer Priceline.com Inc. (NasdaqNM:PCLN - News) and an aircraft-maintenance joint venture with Lockheed Martin Corp. (NYSE:LMT - News) in the Chinese city of Guangzhou.
But Hutchison must confront two CFIUS members - from the Federal Bureau of Investigation and Defense Department - who view warily Mr. Li's mainland-China business ventures and current relations to Chinese government officials. The Treasury Department (news - web sites) chairs the committee, which also includes representatives from the White House, and departments of Commerce and State.
Until recently such concerns were given fairly short shrift within CFIUS, where trade-minded officials from the Commerce and Treasury Departments usually held sway and approved most deals with virtually no scrutiny.
A report released last year by the General Accounting Office (news - web sites), Congress' investigatory arm, found that of the 320 mergers and acquisitions openly reviewed by the committee between 1997 and 2001, only four were formally investigated and just one was actually blocked. Those numbers don't reflect the fact that most companies facing the possibility of a CFIUS investigation withdraw their bids before revising them substantially or dropping them altogether, but people familiar with the process say that CFIUS reviews are almost always a painless process for the companies involved. M
elinda Tan, a spokeswoman for Singapore Technologies Telemedia, said: "We are currently at the regulatory stage, getting approvals from the relevant authorities." She said what's happening now "is just part of the standard approval process."
Tisha Kresler, a Global Crossing spokeswoman, said the company continues to cooperate with the government. Treasury Department spokesman Tony Fratto declined to comment.
Some people in the industry said they are worried the case could lead to repercussions against investments going the other direction.
"The precedent is bad," said an Asia-based executive of a U.S. telecom company. "If China and Singapore can't buy into the U.S. market, how are we going to get these countries to open up?"
- By Dennis K. Berman, The Wall Street Journal, 212-416-3284
Yochi J. Dreazen in Washington and Matthew Pottinger in Hong Kong contributed to this report
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