§ 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, the U.S. 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 foreign carrier authorized to
   operate  in the non-WTO Member country. Such a showing shall include a
   demonstration as to whether the foreign carrier lacks market power in the
   non-WTO Member country with reference to the criteria in § 63.10(a) of this
   chapter. If the U.S. authorized carrier is unable to make the required
   showing in § 63.10(a) of this chapter, the U.S. authorized carrier shall
   agree to comply with the dominant carrier safeguards contained in § 63.10(c)
   of this chapter, effective upon the acquisition of the affiliation. If the
   U.S. authorized carrier is notified by the Commission 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.

   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 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, ;79 2005 FR 31877 , June 3, 2014]

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