§  63.11   Notification by and prior approval for U.S. international carriers
that are or propose to become affiliated with a foreign carrier.

   If a carrier is authorized by the Commission (“authorized carrier”) to
   provide service between the United States and a particular foreign
   destination market and it becomes, or seeks to become, affiliated with
   a foreign carrier that is authorized to operate in that market, then
   its authorization to provide that international service is conditioned
   upon notifying the Commission of that affiliation.

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

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

   (2) Acquisition of a direct or indirect interest greater than
   twenty-five percent, or of a controlling interest, in the capital stock
   of the authorized carrier by a foreign carrier that is authorized to
   operate in a market that the authorized carrier is authorized to serve,
   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 be 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 that foreign carrier is
   authorized to operate in 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 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
   authorized carrier certifies that the named foreign carrier is
   authorized to operate in a WTO Member and provides certification to
   satisfy either of the following:

   (i) The authorized carrier demonstrates that it is entitled to retain
   non-dominant classification on its newly affiliated route pursuant to
   §  63.10; or

   (ii) The authorized carrier agrees to comply with the dominant carrier
   safeguards contained in §  63.10 effective upon the acquisition of the
   affiliation. See §  63.10.

   (c) Notification after consummation. Any authorized carrier that
   becomes affiliated with a foreign carrier and has not previously
   notified the Commission pursuant to this section shall notify the
   Commission within thirty days after consummation of the acquisition.

   Example 1 to paragraph (c). Acquisition by an authorized carrier (or by
   any entity that directly or indirectly controls, is controlled by, or
   is under direct or indirect common control with the authorized carrier)
   of a direct or indirect interest in a foreign carrier that is greater
   than twenty-five percent but not controlling is subject to paragraph
   (c) but not to paragraph (a).

   Example 2 to paragraph (c). Notification of an acquisition by an
   authorized carrier of a hundred percent interest in a foreign carrier
   may be made after consummation, pursuant to paragraph (c), 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
   interest in the capital stock of an authorized carrier may be made
   after consummation, pursuant to paragraph (c) of this section, if the
   authorized carrier demonstrates in the post-notification that it
   qualifies for non-dominant classification on the affiliated route or
   agrees to comply with dominant carrier safeguards on the affiliated
   route 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 of assignment application pursuant to §  63.24, the foreign
   carrier notification shall reference in the notification the transfer
   of control of assignment application and the date of its filing.

   (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 in which it is authorized to provide telecommunications
   services to the public;

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

   (3) What services the authorized carrier is authorized to provide to
   each named country, and the FCC file numbers under which each such
   authorization was granted;

   (4) Which, if any, of those countries the authorized carrier serves
   solely through the resale of the international switched services of
   unaffiliated U.S. facilities-based carriers;

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

   (6) A certification that the authorized carrier has not agreed to and
   will not in the future agree to accept special concessions directly or
   indirectly from any foreign carrier with respect to any U.S.
   international route where the foreign carrier possesses market power on
   the foreign end of the route; and

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

   (8) 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 authorized carrier shall include the projected
   date of closing. In the case of a notification subject to paragraph (c)
   of this section, the authorized carrier shall include the actual date
   of closing.

   (9) If an authorized carrier 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
   carrier is relying. Authorized carriers 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 dominant carrier safeguards in paragraph
   (b)(2)(ii) of this section in the notification required by paragraph
   (c) of this section.

   (f) In order to retain non-dominant status on each newly affiliated
   route, the authorized carrier should demonstrate that it qualifies for
   non-dominant classification pursuant to §  63.10. See §  63.10.

   (g) Procedure. After the Commission issues a public notice of the
   submissions made under this section, interested parties may file
   comments within fourteen 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 dominant carrier regulation on the authorized carrier for the
   affiliated routes based on the provisions of §  63.10. See §  63.10.

   (2) In the case of a prior notification filed pursuant to paragraph (a)
   of this section in which the foreign carrier is authorized to operate
   in a non-WTO Member, the authorized carrier must demonstrate that it
   continues to serve the public interest for it to operate on the route
   for which it proposes to acquire an affiliation with the non-WTO
   foreign carrier by making the required showing in § §  63.18(k)(2) or (3)
   to the Commission. If the authorized carrier is unable to make the
   required showing in § §  63.18(k)(2) or (3) or is notified that the
   affiliation may otherwise harm the public interest pursuant to the
   Commission's policies and rules, then the Commission may impose
   conditions necessary to address any public interest harms or may
   proceed to an immediate authorization revocation hearing. See
   § §  63.18(k)(2) and (3).

   (h) All authorized carriers 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 authorized carrier
   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, except that the carrier shall immediately
   inform the Commission, if at any time, not limited to the forty-five
   (45) days, the representations in the “special concessions”
   certification provided under paragraph (e)(6) of this section or
   §  63.18(n) are no longer true. See §  63.18(n).

   (i) A carrier 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, 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 of this chapter and the IBFS homepage at
   http://www.fcc.gov/ibfs. See also § §  63.20 and 63.53.

   [ 65 FR 60116 , Oct. 10, 2000, as amended at  68 FR 50973 , Aug. 25, 2003;
    69 FR 29901 , May 26, 2004;  70 FR 38798 , July 6, 2005]

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