§  1.767   Cable landing licenses.

   (a) Applications for cable landing licenses under 47 U.S.C. 34–39 and
   Executive Order No. 10530, dated May 10, 1954, should be filed in
   accordance with the provisions of that Executive Order. These
   applications should contain:

   (1) The name, address and telephone number(s) of the applicant;

   (2) The Government, State, or Territory under the laws of which each
   corporate or partnership applicant is organized;

   (3) The name, title, post office address, and telephone number of the
   officer and any other contact point, such as legal counsel, to whom
   correspondence concerning the application is to be addressed;

   (4) A description of the submarine cable, including the type and number
   of channels and the capacity thereof;

   (5) A specific description of the cable landing stations on the shore
   of the United States and in foreign countries where the cable will
   land. The description shall include a map showing specific geographic
   coordinates, and may also include street addresses, of each landing
   station. The map must also specify the coordinates of any beach joint
   where those coordinates differ from the coordinates of the cable
   station. The applicant initially may file a general geographic
   description of the landing points; however, grant of the application
   will be conditioned on the Commission's final approval of a more
   specific description of the landing points, including all information
   required by this paragraph, to be filed by the applicant no later than
   ninety (90) days prior to construction. The Commission will give public
   notice of the filing of this description, and grant of the license will
   be considered final if the Commission does not notify the applicant
   otherwise in writing no later than sixty (60) days after receipt of the
   specific description of the landing points, unless the Commission
   designates a different time period;

   (6) A statement as to whether the cable will be operated on a common
   carrier or non-common carrier basis;

   (7) A list of the proposed owners of the cable system, including each
   U.S. cable landing station, their respective voting and ownership
   interests in each U.S. cable landing station, their respective voting
   interests in the wet link portion of the cable system, and their
   respective ownership interests by segment in the cable;

   (8) For each applicant of the cable system, a certification as to
   whether the applicant is, or is affiliated with, a foreign carrier,
   including an entity that owns or controls a foreign cable landing
   station in any of the cable's destination markets. Include the
   citizenship of each applicant and information and certifications
   required in § § 63.18(h) through (k), and in § 63.18(o), of this chapter;

   (9) A certification that the applicant accepts and will abide by the
   routine conditions specified in paragraph (g) of this section; and

   (10) Any other information that may be necessary to enable the
   Commission to act on the application.

   Note to paragraph (a)(10): Applicants for cable landing licenses may be
   subject to the consistency certification requirements of the Coastal
   Zone Management Act, 16 U.S.C. 1456, if they propose to conduct
   activities, in or outside of a coastal zone of a state with a
   federally-approved management plan, affecting any land or water use or
   natural resource of that state's coastal zone. Before filing their
   applications for a license to construct and operate a submarine cable
   system or to modify the construction of a previously approved submarine
   cable system, applicants must determine whether they are required to
   certify that their proposed activities will comply with the enforceable
   policies of a coastal state's approved management program. In order to
   make this determination, applicants should consult National Oceanic
   Atmospheric Administration (NOAA) regulations, 15 CFR part 930, subpart
   D, and review the approved management programs of coastal states in the
   vicinity of the proposed landing station to verify that this type of
   application is not a listed federal license activity requiring review
   and that no state has sought or received NOAA approval to review the
   application as an unlisted activity. If it is determined that any
   certification is required, applicants shall consult the affected
   coastal state(s) (or designated state agency(ies)) in determining the
   contents of any required consistency certification(s). Applicants may
   also consult the Office of Ocean and Coastal Management (OCRM) within
   NOAA for guidance. The cable landing license application filed with the
   Commission shall include any consistency certification required by
   section 1456(c)(3)(A) for any affected coastal state(s). Upon
   documentation from the applicant, or notification from each affected
   coastal state, that the state has either concurred, or by its inaction,
   is conclusively presumed to have concurred with the applicant's
   consistency certification, the Commission may take action on the
   application.

   (11)(i) If applying for authority to assign or transfer control of an
   interest in a cable system, the applicant shall complete paragraphs
   (a)(1) through (a)(3) of this section for both the transferor/assignor
   and the transferee/assignee. Only the transferee/assignee needs to
   complete paragraphs (a)(8) through (a)(9) of this section. At the
   beginning of the application, the applicant should also include a
   narrative of the means by which the transfer or assignment will take
   place. The application shall also specify, on a segment specific basis,
   the percentage of voting and ownership interests being transferred or
   assigned in the cable system, including in a U.S. cable landing
   station. The Commission reserves the right to request additional
   information as to the particulars of the transaction to aid it in
   making its public interest determination.

   (ii) In the event the transaction requiring an assignment or transfer
   of control application also requires the filing of a foreign carrier
   affiliation notification pursuant to § 1.768, the applicant shall
   reference in the application the foreign carrier affiliation
   notification and the date of its filing. See § 1.768. See also paragraph
   (g)(7) of this section (providing for post-transaction notification of
   pro forma assignments and transfers of control).

   (iii) An assignee or transferee must notify the Commission no later
   than thirty (30) days after either consummation of the assignment or
   transfer or a decision not to consummate the assignment or transfer.
   The notification shall identify the file numbers under which the
   initial license and the authorization of the assignment or transfer
   were granted.

   (b) These applications are acted upon by the Commission after obtaining
   the approval of the Secretary of State and such assistance from any
   executive department or establishment of the Government as it may
   require.

   (c) Original files relating to submarine cable landing licenses and
   applications for licenses since June 30, 1934, are kept by the
   Commission. Such applications for licenses (including all documents and
   exhibits filed with and made a part thereof, with the exception of any
   maps showing the exact location of the submarine cable or cables to be
   licensed) and the licenses issued pursuant thereto, with the exception
   of such maps, shall, unless otherwise ordered by the Commission, be
   open to public inspection in the offices of the Commission in
   Washington, D.C.

   (d) Original files relating to licenses and applications for licenses
   for the landing operation of cables prior to June 30, 1934, were kept
   by the Department of State, and such files prior to 1930 have been
   transferred to the Executive and Foreign Affairs Branch of the General
   Records Office of the National Archives. Requests for inspection of
   these files should, however, be addressed to the Federal Communications
   Commission, Washington, D.C., 20554; and the Commission will obtain
   such files for a temporary period in order to permit inspection at the
   offices of the Commission.

   (e) A separate application shall be filed with respect to each
   individual cable system for which a license is requested, or for which
   modification or amendment of a previous license is requested. The
   application fee for a non common-carrier cable landing license is
   payment type code BJT. Applicants for common carrier cable landing
   licenses shall pay the fees for both a common carrier cable landing
   license (payment type code CXT) and overseas cable construction
   (payment type code BIT). There is no application fee for modification
   of a cable landing license, except that the fee for assignment or
   transfer of control of a cable landing license is payment type code
   CUT. See § 1.1107(2) of this chapter.

   (f) Applicants shall disclose to any interested member of the public,
   upon written request, accurate information concerning the location and
   timing for the construction of a submarine cable system authorized
   under this section. This disclosure shall be made within 30 days of
   receipt of the request.

   (g) Routine conditions. Except as otherwise ordered by the Commission,
   the following rules apply to each licensee of a cable landing license
   granted on or after March 15, 2002:

   (1) Grant of the cable landing license is subject to:

   (i) All rules and regulations of the Federal Communications Commission;

   (ii) Any treaties or conventions relating to communications to which
   the United States is or may hereafter become a party; and

   (iii) Any action by the Commission or the Congress of the United States
   rescinding, changing, modifying or amending any rights accruing to any
   person by grant of the license;

   (2) The location of the cable system within the territorial waters of
   the United States of America, its territories and possessions, and upon
   its shores shall be in conformity with plans approved by the Secretary
   of the Army. The cable shall be moved or shifted by the licensee at its
   expense upon request of the Secretary of the Army, whenever he or she
   considers such course necessary in the public interest, for reasons of
   national defense, or for the maintenance and improvement of harbors for
   navigational purposes;

   (3) The licensee shall at all times comply with any requirements of
   United States government authorities regarding the location and
   concealment of the cable facilities, buildings, and apparatus for the
   purpose of protecting and safeguarding the cables from injury or
   destruction by enemies of the United States of America;

   (4) The licensee, or any person or company controlling it, controlled
   by it, or under direct or indirect common control with it, does not
   enjoy and shall not acquire any right to handle traffic to or from the
   United States, its territories or its possessions unless such service
   is authorized by the Commission pursuant to section 214 of the
   Communications Act, as amended;

   (5)(i) The licensee shall be prohibited from agreeing to accept special
   concessions directly or indirectly from any foreign carrier, including
   any entity that owns or controls a foreign cable landing station, where
   the foreign carrier possesses sufficient market power on the foreign
   end of the route to affect competition adversely in the U.S. market,
   and from agreeing to accept special concessions in the future.

   (ii) For purposes of this section, a special concession is defined as
   an exclusive arrangement involving services, facilities, or functions
   on the foreign end of a U.S. international route that are necessary to
   land, connect, or operate submarine cables, where the arrangement is
   not offered to similarly situated U.S. submarine cable owners,
   indefeasible-right-of-user holders, or lessors, and includes
   arrangements for the terms for acquisition, resale, lease, transfer and
   use of capacity on the cable; access to collocation space; the
   opportunity to provide or obtain backhaul capacity; access to technical
   network information; and interconnection to the public switched
   telecommunications network.

   Note to paragraph (g)(5): Licensees may rely on the Commission's list
   of foreign carriers that do not qualify for the presumption that they
   lack market power in particular foreign points for purposes of
   determining which foreign carriers are the subject of the requirements
   of this section. The Commission's list of foreign carriers that do not
   qualify for the presumption that they lack market power is available
   from the International Bureau's World Wide Web site at
   http://www.fcc.gov/ib.

   (6) Except as provided in paragraph (g)(7) of this section, the cable
   landing license and rights granted in the license shall not be
   transferred, assigned, or disposed of, or disposed of indirectly by
   transfer of control of the licensee, unless the Federal Communications
   Commission gives prior consent in writing;

   (7) A pro forma assignee or person or company that is the subject of a
   pro forma transfer of control of a cable landing license is not
   required to seek prior approval for the pro forma transaction. A pro
   forma assignee or person or company that is the subject of a pro forma
   transfer of control must notify the Commission no later than thirty
   (30) days after the assignment or transfer of control is consummated.
   The notification must certify that the assignment or transfer of
   control was pro forma , as defined in § 63.24 of this chapter, and,
   together with all previous pro forma transactions, does not result in a
   change of the licensee's ultimate control. The licensee may file a
   single notification for an assignment or transfer of control of
   multiple licenses issued in the name of the licensee if each license is
   identified by the file number under which it was granted;

   (8) Unless the licensee has notified the Commission in the application
   of the precise locations at which the cable will land, as required by
   paragraph (a)(5) of this section, the licensee shall notify the
   Commission no later than ninety (90) days prior to commencing
   construction at that landing location. The Commission will give public
   notice of the filing of each description, and grant of the cable
   landing license will be considered final with respect to that landing
   location unless the Commission issues a notice to the contrary no later
   than sixty (60) days after receipt of the specific description. See
   paragraph (a)(5) of this section;

   (9) The Commission reserves the right to require the licensee to file
   an environmental assessment should it determine that the landing of the
   cable at the specific locations and construction of necessary cable
   landing stations may significantly affect the environment within the
   meaning of § 1.1307 implementing the National Environmental Policy Act
   of 1969. See § 1.1307(a) and (b). The cable landing license is subject
   to modification by the Commission under its review of any environmental
   assessment or environmental impact statement that it may require
   pursuant to its rules. See also § 1.1306 note 1 and § 1.1307(c) and (d);

   (10) The Commission reserves the right, pursuant to section 2 of the
   Cable Landing License Act, 47 U.S.C. 35, Executive Order No. 10530 as
   amended, and section 214 of the Communications Act of 1934, as amended,
   47 U.S.C. 214, to impose common carrier regulation or other regulation
   consistent with the Cable Landing License Act on the operations of the
   cable system if it finds that the public interest so requires;

   (11) The licensee, or in the case of multiple licensees, the licensees
   collectively, shall maintain de jure and de facto control of the U.S.
   portion of the cable system, including the cable landing stations in
   the United States, sufficient to comply with the requirements of the
   Commission's rules and any specific conditions of the license;

   (12) The licensee shall comply with the requirements of § 1.768;

   (13) The cable landing license is revocable by the Commission after due
   notice and opportunity for hearing pursuant to section 2 of the Cable
   Landing License Act, 47 U.S.C. 35, or for failure to comply with the
   terms of the license or with the Commission's rules; and

   (14) The licensee must notify the Commission within thirty (30) days of
   the date the cable is placed into service. The cable landing license
   shall expire twenty-five (25) years from the in-service date, unless
   renewed or extended upon proper application. Upon expiration, all
   rights granted under the license shall be terminated.

   (h) Applicants/Licensees. Except as otherwise required by the
   Commission, the following entities, at a minimum, shall be applicants
   for, and licensees on, a cable landing license:

   (1) Any entity that owns or controls a cable landing station in the
   United States; and

   (2) All other entities owning or controlling a five percent (5%) or
   greater interest in the cable system and using the U.S. points of the
   cable system.

   (i) Processing of cable landing license applications. The Commission
   will take action upon an application eligible for streamlined
   processing, as specified in paragraph (k) of this section, within
   forty-five (45) days after release of the public notice announcing the
   application as acceptable for filing and eligible for streamlined
   processing. If the Commission deems an application seeking streamlined
   processing acceptable for filing but ineligible for streamlined
   processing, or if an applicant does not seek streamlined processing,
   the Commission will issue public notice indicating that the application
   is ineligible for streamlined processing. Within ninety (90) days of
   the public notice, the Commission will take action upon the application
   or provide public notice that, because the application raises questions
   of extraordinary complexity, an additional 90-day period for review is
   needed. Each successive 90-day period may be so extended.

   (j) Applications for streamlining. Each applicant seeking to use the
   streamlined grant procedure specified in paragraph (i) of this section
   shall request streamlined processing in its application. Applications
   for streamlined processing shall include the information and
   certifications required by paragraph (k) of this section. On the date
   of filing with the Commission, the applicant shall also send a complete
   copy of the application, or any major amendments or other material
   filings regarding the application, to: U.S. Coordinator, EB/CIP, U.S.
   Department of State, 2201 C Street, NW., Washington, DC 20520–5818;
   Office of Chief Counsel/NTIA, U.S. Department of Commerce, 14th St. and
   Constitution Ave., NW., Washington, DC 20230; and Defense Information
   Systems Agency, Code RGC, 701 S. Courthouse Road, Arlington, Va. 22204,
   and shall certify such service on a service list attached to the
   application or other filing.

   (k) Eligibility for streamlining. Each applicant must demonstrate
   eligibility for streamlining by:

   (1) Certifying that it is not a foreign carrier and it is not
   affiliated with a foreign carrier in any of the cable's destination
   markets;

   (2) Demonstrating pursuant to § 63.12(c)(l)(i) through (iii) of this
   chapter that any such foreign carrier or affiliated foreign carrier
   lacks market power; or

   (3) Certifying that the destination market where the applicant is, or
   has an affiliation with, a foreign carrier is a World Trade
   Organization (WTO) Member and the applicant agrees to accept and abide
   by the reporting requirements set out in paragraph (l) of this section.
   An application that includes an applicant that is, or is affiliated
   with, a carrier with market power in a cable's non-WTO Member
   destination country is not eligible for streamlining.

   (4) Certifying that for applications for a license to construct and
   operate a submarine cable system or to modify the construction of a
   previously approved submarine cable system, the submarine cable system
   will not be located in any states where the cable landing licenses may
   be subject to the consistency certification requirements of the Coastal
   Zone Management Act, 16 U.S.C. 1456.

   (l) Reporting Requirements Applicable to Licensees Affiliated with a
   Carrier with Market Power in a Cable's WTO Destination Market. Any
   licensee that is, or is affiliated with, a carrier with market power in
   any of the cable's WTO Member destination countries, and that requests
   streamlined processing of an application under paragraphs (j) and (k)
   of this section, must comply with the following requirements:

   (1) File quarterly reports summarizing the provisioning and maintenance
   of all network facilities and services procured from the licensee's
   affiliate in that destination market, within ninety (90) days from the
   end of each calendar quarter. These reports shall contain the
   following:

   (i) The types of facilities and services provided (for example, a lease
   of wet link capacity in the cable, collocation of licensee's equipment
   in the cable station with the ability to provide backhaul, or cable
   station and backhaul services provided to the licensee);

   (ii) For provisioned facilities and services, the volume or quantity
   provisioned, and the time interval between order and delivery; and

   (iii) The number of outages and intervals between fault report and
   facility or service restoration; and

   (2) File quarterly circuit status reports, within ninety (90) days from
   the end of each calendar quarter and in the format set out by the
   § 43.82 of this chapter annual circuit status manual with the exception
   that activated or idle circuits must be reported on a
   facility-by-facility basis and derived circuits need not be specified.
   See § 63.10(c)(5) of this chapter.

   (m) (1) Except as specified in paragraph (m)(2) of this section,
   amendments to pending applications, and applications to modify a
   license, including amendments or applications to add a new applicant or
   licensee, shall be signed by each initial applicant or licensee,
   respectively. Joint applicants or licensees may appoint one party to
   act as proxy for purposes of complying with this requirement.

   (2) Any licensee that seeks to relinquish its interest in a cable
   landing license shall file an application to modify the license. Such
   application must include a demonstration that the applicant is not
   required to be a licensee under paragraph (h) of this section and that
   the remaining licensee(s) will retain collectively de jure and de facto
   control of the U.S. portion of the cable system sufficient to comply
   with the requirements of the Commission's rules and any specific
   conditions of the license, and must be served on each other licensee of
   the cable system.

   (n) Subject to the availability of electronic forms, all applications
   and notifications described in this section must be filed
   electronically through the International Bureau Filing System (IBFS). A
   list of forms that are available for electronic filing can be found on
   the IBFS homepage. For information on electronic filing requirements,
   see part 1, § § 1.1000 through 1.10018 and the IBFS homepage at
   http://www.fcc.gov/ibfs. See also § § 63.20 and 63.53 of this chapter.

   Note to § 1.767: The terms “affiliated” and “foreign carrier,” as used
   in this section, are defined as in § 63.09 of this chapter except that
   the term “foreign carrier” also shall include any entity that owns or
   controls a cable landing station in a foreign market.

   [ 28 FR 12450 , Nov. 22, 1963, as amended at  52 FR 5289 , Feb. 20, 1987;
    61 FR 15726 , Apr. 9, 1996;  64 FR 19061 , Apr. 19, 1999;  65 FR 51769 ,
   Aug. 25, 2000;  65 FR 54799 , Sept. 11, 2000;  67 FR 1619 , Jan. 14, 2002;
    69 FR 40327 , July 2, 2004;  70 FR 38796 , July 6, 2005;  72 FR 54366 ,
   Sept. 25, 2007]

   Effective Date Note:   At  72 FR 54366 , Sept. 25, 2007, § 1.767 was
   amended by adding paragraph (k)(4). This paragraph contains information
   collection and recordkeeping requirements and will not become effective
   until approval has been given by the Office of Management and Budget.