§  63.10   Regulatory classification of U.S. international carriers.

   (a) Unless otherwise determined by the Commission, any party authorized
   to provide an international communications service under this part
   shall be classified as either dominant or non-dominant for the
   provision of particular international communications services on
   particular routes as set forth in this section. The rules set forth in
   this section shall also apply to determinations of regulatory status
   pursuant to § §  63.11 and 63.13. For purposes of paragraphs (a)(2) and
   (a)(3) of this section, the relevant markets on the foreign end of a
   U.S. international route include: international transport facilities or
   services, including cable landing station access and backhaul
   facilities; inter-city facilities or services; and local access
   facilities or services on the foreign end of a particular route.

   (1) A U.S. carrier that has no affiliation with, and that itself is
   not, a foreign carrier in a particular country to which it provides
   service (i.e., a destination country) shall presumptively be considered
   non-dominant for the provision of international communications services
   on that route;

   (2) Except as provided in paragraph (a)(4) of this section, a U.S.
   carrier that is, or that has or acquires an affiliation with a foreign
   carrier that is a monopoly provider of communications services in a
   relevant market in a destination country shall presumptively be
   classified as dominant for the provision of international
   communications services on that route; and

   (3) A U.S. carrier that is, or that has or acquires an affiliation with
   a foreign carrier that is not a monopoly provider of communications
   services in a relevant market in a destination country and that seeks
   to be regulated as non-dominant on that route bears the burden of
   submitting information to the Commission sufficient to demonstrate that
   its foreign affiliate lacks sufficient market power on the foreign end
   of the route to affect competition adversely in the U.S. market. If the
   U.S. carrier demonstrates that the foreign affiliate lacks 50 percent
   market share in the international transport and the local access
   markets on the foreign end of the route, the U.S. carrier shall
   presumptively be classified as non-dominant.

   (4) A carrier that is authorized under this part to provide to a
   particular destination an international switched service, and that
   provides such service solely through the resale of an unaffiliated U.S.
   facilities-based carrier's international switched services (either
   directly or indirectly through the resale of another U.S. resale
   carrier's international switched services), shall presumptively be
   classified as non-dominant for the provision of the authorized service.
   A carrier regulated as non-dominant pursuant to this subparagraph shall
   notify the Commission at any time that it begins to provide such
   service through the resale of an affiliated U.S. facilities-based
   carrier's international switched services. The carrier will be deemed a
   dominant carrier on the route absent a Commission finding that the
   carrier otherwise qualifies for non-dominant regulation pursuant to
   this section.

   (b) Any party that seeks to defeat the presumptions in paragraph (a) of
   this section shall bear the burden of proof upon any issue it raises as
   to the proper classification of the U.S. carrier.

   (c) Any carrier classified as dominant for the provision of particular
   services on particular routes under this section shall comply with the
   following requirements in its provision of such services on each such
   route:

   (1) Provide services as an entity that is separate from its foreign
   carrier affiliate, in compliance with the following requirements:

   (i) The authorized carrier shall maintain separate books of account
   from its affiliated foreign carrier. These separate books of account do
   not need to comply with part 32 of this chapter; and

   (ii) The authorized carrier shall not jointly own transmission or
   switching facilities with its affiliated foreign carrier. Nothing in
   this section prohibits the U.S. carrier from sharing personnel or other
   resources or assets with its foreign affiliate;

   (2) File quarterly reports on traffic and revenue, consistent with the
   reporting requirements authorized pursuant to §  43.61, within 90 days
   from the end of each calendar quarter;

   (3) File quarterly reports summarizing the provisioning and maintenance
   of all basic network facilities and services procured from its foreign
   carrier affiliate or from an allied foreign carrier, including, but not
   limited to, those it procures on behalf of customers of any joint
   venture for the provision of U.S. basic or enhanced services in which
   the authorized carrier and the foreign carrier participate, within 90
   days from the end of each calendar quarter. These reports should
   contain the following: the types of circuits and services provided; the
   average time intervals between order and delivery; the number of
   outages and intervals between fault report and service restoration; and
   for circuits used to provide international switched service, the
   percentage of “peak hour” calls that failed to complete;

   (4) In the case of an authorized facilities-based carrier, file
   quarterly circuit status reports within 90 days from the end of each
   calendar quarter in the format set out by the §  43.82 annual circuit
   status manual, with two exceptions: activated or idle circuits must be
   reported on a facility-by-facility basis; and the derived circuits need
   not be specified in the three quarterly reports due on June 30,
   September 30, and December 31.

   (5) If authorized to provide facilities-based service, comply with
   paragraph (e) of this section.

   (d) A carrier classified as dominant under this section shall file an
   original and two copies of each report required by paragraphs (c)(3),
   (c)(4), and (c)(5) of this section with the Chief, International
   Bureau. The carrier shall also file one copy of these reports with the
   Commission's copy contractor. The transmittal letter accompanying each
   report shall clearly identify the report as responsive to the
   appropriate paragraph of §  63.10(c).

   (e) Except as otherwise ordered by the Commission, a carrier that is
   classified as dominant under this section for the provision of
   facilities-based services on a particular route and that is affiliated
   with a carrier that collects settlement payments for terminating U.S.
   international switched traffic at the foreign end of that route may not
   provide switched facilities-based service on that route unless the
   current rates the affiliate charges U.S. international carriers to
   terminate traffic are at or below the Commission's relevant benchmark
   adopted in IB Docket No. 96-261. See FCC 97-280 (rel. Aug. 18, 1997)
   (available at the FCC's Reference Operations Division, Washington, D.C.
   20554, and on the FCC's World Wide Web Site at http://www.fcc.gov ).

   [ 62 FR 64752 , Dec. 9, 1997, as amended at  64 FR 19062 , Apr. 19, 1999;
    64 FR 46593 , Aug. 26, 1999;  64 FR 47702 , Sept. 1, 1999;  66 FR 16881 ,
   Mar. 28, 2001;  67 FR 45390 , July 9, 2002]

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