Goto Section: 63.10 | 63.12 | Table of Contents
FCC 63.11
Revised as of October 1, 2006
Goto Year:2005 |
2007
Sec. 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
Sec. 63.10; or
(ii) The authorized carrier agrees to comply with the dominant carrier
safeguards contained in Sec. 63.10 effective upon the acquisition of the
affiliation. See Sec. 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 Sec. 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 Sec. 63.09(g), with each foreign carrier named in the notification.
See Sec. 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 Sec. 63.10. See Sec. 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 Sec. 63.10. See Sec. 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 Sec. Sec. 63.18(k)(2) or (3) to the Commission. If
the authorized carrier is unable to make the required showing in
Sec. Sec. 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 Sec. Sec. 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 Sec. 63.18(n)
are no longer true. See Sec. 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
Sec. 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, Sec. Sec. 1.1000 through 1.10018 of this
chapter and the IBFS homepage at http://www.fcc.gov/ibfs. See also Sec. Sec. 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]
Goto Section: 63.10 | 63.12
Goto Year: 2005 |
2007
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