§ 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 within 90 days from the
   end of each calendar quarter consistent with the format set out by the
   § 43.62 filing manual.

   (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,
   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).

   (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;  78 FR 15623 , Mar. 12, 2013]

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