Goto Section: 1.764 | 1.768 | Table of Contents
FCC 1.767
Revised as of October 2, 2015
Goto Year:2014 |
2016
§ 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:
(i) The place of organization and the information and certifications
required in § § 63.18(h) and (o) of this chapter;
(ii) A certification as to whether or not the applicant is, or is affiliated
with, a foreign carrier, including an entity that owns or controls a cable
landing station, in any foreign country. The certification shall state with
specificity each such country;
(iii) A certification as to whether or not the applicant seeks to land and
operate a submarine cable connecting the United States to any country for
which any of the following is true. The certification shall state with
specificity the foreign carriers and each country:
(A) The applicant is a foreign carrier in that country; or
(B) The applicant controls a foreign carrier in that country; or
(C) There exists any entity that owns more than 25 percent of the applicant,
or controls the applicant, or controls a foreign carrier in that country.
(D) Two or more foreign carriers (or parties that control foreign carriers)
own, in the aggregate, more than 25 percent of the applicant and are parties
to, or the beneficiaries of, a contractual relation (e.g., a joint venture
or market alliance) affecting the provision or marketing of arrangements for
the terms of acquisition, sale, lease, transfer and use of capacity on the
cable in the United States; and
(iv) For any country that the applicant has listed in response to paragraph
(a)(8)(iii) of this section that is not a member of the World Trade
Organization, a demonstration as to whether the foreign carrier lacks market
power with reference to the criteria in § 63.10(a) of this chapter.
Note to paragraph (a)(8)(iv): Under § 63.10(a) of this chapter, the
Commission presumes, subject to rebuttal, that a foreign carrier lacks
market power in a particular foreign country if the applicant demonstrates
that the foreign carrier lacks 50 percent market share in international
transport facilities or services, including cable landing station access and
backhaul facilities, intercity facilities or services, and local access
facilities or services on the foreign end of a particular route.
(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 (CZMA), 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. After the application is
filed, applicants should follow the procedures specified in 15 CFR 930.54 to
determine whether any potentially affected 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) that lists this type of
application in its NOAA-approved coastal management program and shall be
updated pursuant to § 1.65 of the Commission's rules, 47 CFR 1.65, to include
any subsequently required consistency certification with respect to any
state that has received NOAA approval to review the application as an
unlisted federal license activity. Upon documentation from the applicant—or
notification from each coastal state entitled to review the license
application for consistency with a federally approved coastal management
program—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, ATTN: GC/DO1, 6910 Cooper
Avenue, Fort Meade, MD 20755-7088, 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 applicant is not required to submit a
consistency certification to any state pursuant to section 1456(c)(3)(A) of
the Coastal Zone Management Act (CZMA), 16 U.S.C. 1456.
Note to paragraph (k)(4): Streamlining of cable landing license applications
will be limited to those applications where all potentially affected states,
having constructive notice that the application was filed with the
Commission, have waived, or are deemed to have waived, any section
1456(c)(3)(A) right to review the application within the thirty-day period
prescribed by 15 CFR 930.54.
(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, within 90 days from the end of each calendar quarter, a
report of its active and idle 64 kbps or equivalent circuits by facility
(terrestrial, satellite and submarine cable).
(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. The term “country” as used in
this section refers to the foreign points identified in the U.S. Department
of State list of Independent States of the World and its list of
Dependencies and Areas of Special Sovereignty. See http://www.state.gov.
[ 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; 75 FR 81490 ,
Dec. 28, 2010; 76 FR 32867 , June 7, 2011; 78 FR 15623 , Mar. 12, 2013; 79 FR 31876 , June 3, 2014]
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Goto Year: 2014 |
2016
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