§ 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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