§  1.768   Notification by and prior approval for submarine cable landing
licensees that are or propose to become affiliated with a foreign carrier.

   Any entity that is licensed by the Commission ("licensee") to land or
   operate a submarine cable landing in a particular foreign destination
   market that becomes, or seeks to become, affiliated with a foreign
   carrier that is authorized to operate in that market, including an
   entity that owns or controls a cable landing station in that market,
   shall notify the Commission of that affiliation.

   (a) Affiliations requiring prior notification: Except as provided in
   paragraph (b) of this section, the licensee must notify the Commission,
   pursuant to this section, forty-five (45) days before consummation of
   either of the following types of transactions:

   (1) Acquisition by the licensee, or by any entity that controls the
   licensee, or by any entity that directly or indirectly owns more than
   twenty-five percent (25%) of the capital stock of the licensee, of a
   controlling interest in a foreign carrier that is authorized to operate
   in a market where the cable lands; or

   (2) Acquisition of a direct or indirect interest greater than
   twenty-five percent (25%), or of a controlling interest, in the capital
   stock of the licensee by a foreign carrier that is authorized to
   operate in a market where the cable lands, or by an entity that
   controls such a foreign carrier.

   (b) Exceptions: (1) Notwithstanding paragraph (a) of this section, the
   notification required by this section need not be filed before
   consummation, and may instead by filed pursuant to paragraph (c) of
   this section, if either of the following is true with respect to the
   named foreign carrier, regardless of whether the destination market
   where the cable lands is a World Trade Organization (WTO) or non-WTO
   Member:

   (i) The Commission has previously determined in an adjudication that
   the foreign carrier lacks market power in that destination market (for
   example, in an international section 214 application or a declaratory
   ruling proceeding); or

   (ii) The foreign carrier owns no facilities in that destination market.
   For this purpose, a carrier is said to own facilities if it holds an
   ownership, indefeasible-right-of-user, or leasehold interest in a cable
   landing station or in bare capacity in international or domestic
   telecommunications facilities (excluding switches).

   (2) In the event paragraph (b)(1) of this section cannot be satisfied,
   notwithstanding paragraph (a) of this section, the notification
   required by this section need not be filed before consummation, and may
   instead be filed pursuant to paragraph (c) of this section, if the
   licensee certifies that the destination market where the cable lands is
   a WTO Member and provides certification to satisfy either of the
   following:

   (i) The licensee demonstrates that its foreign carrier affiliate lacks
   market power in the cable's destination market pursuant to § 63.10(a)(3)
   of this chapter (see § 63.10(a)(3) of this chapter); or

   (ii) The licensee agrees to comply with the reporting requirements
   contained in § 1.767(l) effective upon the acquisition of the
   affiliation. See § 1.767(l).

   (c) Notification after consummation: Any licensee that becomes
   affiliated with a foreign carrier and has not previously notified the
   Commission pursuant to the requirements of this section shall notify
   the Commission within thirty (30) days after consummation of the
   acquisition.
   Example 1 to paragraph (c). Acquisition by a licensee (or by any entity
   that directly or indirectly controls, is controlled by, or is under
   direct or indirect common control with the licensee) of a direct or
   indirect interest in a foreign carrier that is greater than twenty-five
   percent (25%) but not controlling is subject to paragraph (c) of this
   section but not to paragraph (a) of this section.
   Example 2 to paragraph (c). Notification of an acquisition by a
   licensee of a hundred percent (100%) interest in a foreign carrier may
   be made after consummation, pursuant to paragraph (c) of this section,
   if the foreign carrier operates only as a resale carrier.
   Example 3 to paragraph (c). Notification of an acquisition by a foreign
   carrier from a WTO Member of a greater than twenty-five percent (25%)
   interest in the capital stock of the licensee may be made after
   consummation, pursuant to paragraph (c) of this section, if the
   licensee demonstrates in the post-notification that the foreign carrier
   lacks market power in the cable's destination market or the licensee
   agrees to comply with the reporting requirements contained in § 1.767(l)
   effective upon the acquisition of the affiliation.

   (d) Cross-reference: In the event a transaction requiring a foreign
   carrier notification pursuant to this section also requires a transfer
   of control or assignment application pursuant to the requirements of
   the license granted under § 1.767 or § 1.767(g), the foreign carrier
   notification shall reference in the notification the transfer of
   control or assignment application and the date of its filing. See
   § 1.767(g).

   (e) Contents of notification: The notification shall certify the
   following information:

   (1) The name of the newly affiliated foreign carrier and the country or
   countries at the foreign end of the cable in which it is authorized to
   provide telecommunications services to the public or where it owns or
   controls a cable landing station;

   (2) Which, if any, of those countries is a Member of the World Trade
   Organization;

   (3) The name of the cable system that is the subject of the
   notification, and the FCC file number(s) under which the license was
   granted;

   (4) The name, address, citizenship, and principal business of any
   person or entity that directly or indirectly owns at least ten percent
   (10%) of the equity of the licensee, and the percentage of equity owned
   by each of those entities (to the nearest one percent (1%));

   (5) Interlocking directorates. The name of any interlocking
   directorates, as defined in § 63.09(g) of this chapter, with each
   foreign carrier named in the notification. See § 63.09(g) of this
   chapter.

   (6) With respect to each foreign carrier named in the notification, a
   statement as to whether the notification is subject to paragraph (a) or
   (c) of this section. In the case of a notification subject to paragraph
   (a) of this section, the licensee shall include the projected date of
   closing. In the case of a notification subject to paragraph (c) of this
   section, the licensee shall include the actual date of closing.

   (7) If a licensee relies on an exception in paragraph (b) of this
   section, then a certification as to which exception the foreign carrier
   satisfies and a citation to any adjudication upon which the licensee is
   relying. Licensees relying upon the exceptions in paragraph (b)(2) of
   this section must make the required certified demonstration in
   paragraph (b)(2)(i) of this section or the certified commitment to
   comply with the reporting requirements in paragraph (b)(2)(ii) of this
   section in the notification required by paragraph (c) of this section.

   (f) If the licensee seeks to be excepted from the reporting
   requirements contained in § 1.767(l), the licensee should demonstrate
   that each foreign carrier affiliate named in the notification lacks
   market power pursuant to § 63.10(a)(3) of this chapter. See § 63.10(a)(3)
   of this chapter.

   (g) Procedure. After the Commission issues a public notice of the
   submissions made under this section, interested parties may file
   comments within fourteen (14) days of the public notice.

   (1) If the Commission deems it necessary at any time before or after
   the deadline for submission of public comments, the Commission may
   impose reporting requirements on the licensee based on the provisions
   of § 1.767(l). See § 1.767(l).

   (2) In the case of a prior notification filed pursuant to paragraph (a)
   of this section, the authorized U.S. licensee must demonstrate that it
   continues to serve the public interest for it to retain its interest in
   the cable landing license for that segment of the cable that lands in
   the non-WTO destination market. Such a showing shall include a
   demonstration as to whether the foreign carrier lacks market power in
   the non-WTO destination market with reference to the criteria in
   § 63.10(a) of this chapter. In addition, upon request of the Commission,
   the licensee shall provide the information specified in § 1.767(a)(8).
   If the licensee is unable to make the required showing or is notified
   by the Commission that the affiliation may otherwise harm the public
   interest pursuant to the Commission's policies and rules under 47
   U.S.C. 34 through 39 and Executive Order No. 10530, dated May 10, 1954,
   then the Commission may impose conditions necessary to address any
   public interest harms or may proceed to an immediate authorization
   revocation hearing.

   Note to paragraph (g)(2): 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.

   (h) All licensees are responsible for the continuing accuracy of
   information provided pursuant to this section for a period of
   forty-five (45) days after filing. During this period if the
   information furnished is no longer accurate, the licensee shall as
   promptly as possible, and in any event within ten (10) days, unless
   good cause is shown, file with the Commission a corrected notification
   referencing the FCC file numbers under which the original notification
   was provided.

   (i) A licensee that files a prior notification pursuant to paragraph
   (a) of this section may request confidential treatment of its filing,
   pursuant to § 0.459 of this chapter, for the first twenty (20) days
   after filing.

   (j) Subject to the availability of electronic forms, all 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.

   Note to § 1.768: 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 an entity that owns or
   controls a cable landing station in a foreign market.

   [ 67 FR 1622 , Jan. 14, 2002, as amended at  70 FR 38797 , July 6, 2005;  79 FR 31877 , June 3, 2014]

   

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