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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) AT&T CORP. ) BELLSOUTH INTERNATIONAL, INC. ) CABLE & WIRELESS USA, INC. ) CABLE & WIRELESS GLOBAL NETWORKS LTD. ) GTE INTELLIGENT NETWORK SERVICES ) INC. ) IXC COMMUNICATIONS SERVICES, INC. ) KDD AMERICA, INC. ) MCI WORLDCOM, INC. ) PACIFIC GATEWAY EXCHANGE ) (BERMUDA) LIMITED ) RSL COM U.S.A., INC. ) SPRINT COMMUNICATIONS COMPANY, L.P. ) STAR TELECOMMUNICATIONS, INC. ) File No. SCL-LIC-19990303-00004 STARTEC GLOBAL COMMUNICATIONS CORP. ) SWISSCOM NORTH AMERICA, INC. ) TELEBERMUDA INTERNATIONAL LIMITED ) TELEGLOBE USA INC. ) TELENOR GLOBAL SERVICES AS ) TELIA NORTH AMERICA INC. ) VIATEL, INC. ) ) ) Joint Application for a License to Land and Operate ) in the United States a Submarine Cable ) System Extending Between the United States, ) Denmark, Germany, the Netherlands, France and the ) United Kingdom. ) ) CABLE LANDING LICENSE Adopted: September 30, 1999 Released: October 1, 1999 By the Chief, Telecommunications Division: I. Introduction 1. In this Order, we grant the application of AT&T Corp. (AT&T), BellSouth International, Inc. (BSI), Cable & Wireless USA, Inc. (C&W USA), Cable & Wireless Global Networks Ltd. (C&WGN), GTE Intelligent Network Services Inc. (GTEINS), IXC Communications Services, Inc. (IXC-CSI), KDD America, Inc. (KDDA), MCI WorldCom, Inc. (MCI WorldCom), Pacific Gateway Exchange (BERMUDA) Limited (PGE Bermuda), RSL COM U.S.A., Inc. (RSL USA), Sprint Communications Company, L.P. (Sprint), STAR Telecommunications, Inc. (STAR), Startec Global Communications Corp. (STGC), Swisscom North America, Inc. (SCNA), TeleBermuda International Limited (TeleBermuda), Teleglobe USA Inc. (TUSA), Telenor Global Services AS (Telenor Global), Telia North America Inc. (Telia NA), and Viatel, Inc. (Viatel) (collectively the Joint Applicants or Licensees) under the Cable Landing License Act and Executive Order No. 10530 for authority to land and operate a private fiber optic submarine cable system to be called "TAT-14 Cable Network" or "TAT-14," extending between the United States, Denmark, Germany, the Netherlands, France, and the United Kingdom. The capacity of TAT-14 will be sold or leased to users on a non-tariffed, non common carrier basis. We find that the Joint Applicants have provided sufficient information under our rules to comply with the Cable Landing License Act and that it would serve the public interest to grant the cable landing license subject to the conditions listed below. II. Application 2. The application identifies as Joint Applicants 19 of the 51 initial investors in TAT-14. Sprint is a limited partnership organized and existing under the laws of Delaware. AT&T and KDDA are corporations organized and existing under the laws of New York. BSI is a corporation organized and existing under the laws of Georgia. C&W USA is a corporation organized and existing under the laws of the District of Columbia. C&WGN is a corporation organized and existing under the laws of Ireland. GTEINS, IXC-CSI, MCI WorldCom, RSL USA, STAR, SCNA, TUSA, Telia NA, and Viatel are corporations organized and existing under the laws of Delaware. PGE Bermuda and TeleBermuda are corporations organized and existing under the laws of Bermuda. STGC is a corporation organized and existing under the laws of Maryland. Telenor Global is a corporation organized and existing under the laws of Norway. Each of the Joint Applicants is a common carrier subject to the Communications Act of 1934, as amended. The Joint Applicants and other carriers will own and operate TAT-14 in the approximate proportions stated in the application. The Joint Applicants' Management of TAT-14 will be in accordance with the Construction and Maintenance Agreement (C&MA) included in the Application. 3. The proposed TAT-14 system will connect: (1) Manasquan, New Jersey; (2) Tuckerton, New Jersey; (3) Blaabjerg, Denmark; (4) Norden, Germany; (5) Katwijk, the Netherlands; (6) St. Valery, France; and (7) Widemouth, North Cornwall, United Kingdom. The application states that TAT-14 will employ state-of-the-art wave division multiplexing (WDM) fiber optic technology operating at up to 640 Gbps in a self-healing ring configuration. TAT-14 will be connected to technologically suitable facilities providing access to the domestic networks in each country or territory. In addition, TAT-14 will be extended by suitable facilities to the terminals of other communications systems, including other cable terminals and satellite earth stations, to enable TAT-14 to be used for services between and among the United States, Denmark, Germany, the Netherlands, France, the United Kingdom, and points beyond. 4. As shown in Exhibit 1 that is attached to this order, TAT-14 will consist of seven cable landing stations (Segments T1-T7) and seven wet subsegments (Subsegments S1-S7). Three of the subsegments (Subsegments S1, S2, and S7) and two of the land points (Segments T1 at Manasquan, New Jersey and T2 at Tuckerton, New Jersey) are subject to the jurisdiction of the Commission. The C&MA provides that landing point Segment T1 shall be owned by Sprint and landing point Segment T2 shall be owned by AT&T. Section 16.1 of the C&MA provides that Sprint and AT&T are also responsible for the operation and maintenance of the T1 and T2 segments, respectively. 5. Subsegment S1 consists of four fiber pairs between Manasquan and Tuckerton, New Jersey. Subsegment S2 consists of four fiber pairs between Tuckerton, New Jersey and Widemouth, North Cornwall, U.K. Subsegment S3 consists of four fiber pairs between Widemouth, U.K. and St. Valery-en- Caux, France. Subsegment S4 consists of four fiber pairs between St. Valery-en-Caux, France, and Katwijk, the Netherlands. Subsegment S5 consists of four fiber pairs between Katwijk, the Netherlands and Norden, Germany. Subsegment S6 consists of four fiber pairs between Norden, Germany and Blaabjerg, Denmark. Subsegment S7 consists of four fiber pairs between Blaabjerg, Denmark and Manasquan, New Jersey. Each fiber pair will operate at 160 Gbps. The initial capacity of each fiber pair is equivalent to 1024-155 Mbps Basic System Modules (BSMs), with each BSM containing 63 minimum investment units (MIUs). Operation of the TAT-14 system is anticipated to begin no later than December 31, 2000. III. Comments 6. The application was placed on public notice on March 26, 1999. We received no comments. Pursuant to Section 1.767(b) of the Commission's rules, the Cable Landing License Act, and Executive Order No. 10530, we informed the Department of State of the application. The Department of State, after coordinating with the National Telecommunications and Information Administration and the Department of Defense, stated that it has no objection to issuance of the cable landing license. IV. Discussion A. Private Submarine Cable Policy 7. The Joint Applicants propose to operate TAT-14 as a non common carrier submarine cable system in which capacity will not be offered indifferently to the user public. The Joint Applicants request a license under the Commission's private submarine cable policy, which is intended to promote competition in the provision of international transmission facilities. Pursuant to this policy, the Commission has authorized non common carrier cables where: (1) there is no legal compulsion to serve the public indifferently; and (2) there are no reasons implicit in the nature of the operations to expect an indifferent holding-out to the eligible user public. 8. In applying the first prong of the test to submarine cable authorizations, the Commission has stated that there will be no legal compulsion to serve the public indifferently where there is no public interest reason to require facilities to be offered on a common carrier basis. This public interest analysis has generally focused on whether an applicant will be able to exercise market power because of the lack of alternative facilities. Where the Commission has found that the licensee will lack market power and therefore will not be able to charge monopoly rates for cable capacity, the Commission has found that the public interest would be served by allowing a submarine cable to be offered on a non-common carrier basis. 9. No one has suggested that the public interest requires TAT-14 to be operated on a common carrier basis. The Joint Applicants are affiliated with several foreign carriers in Europe, including carriers in the United Kingdom, Denmark, the Netherlands, France and Germany, the destination countries for TAT-14. The Joint Applicants state that none of the Joint Applicants is affiliated with a carrier designated by the Commission as presumptively dominant in those foreign countries where the TAT-14 will land. No commenter has disputed this fact, and we find that, in light of all the circumstances, it would not serve the public interest to impose common carrier regulation on the operations of TAT-14 at this time. We note, however, that we maintain the ability to impose common carrier or common-carrier-like obligations on the operations of this or any other submarine cable system if the public interest so requires. Furthermore, we have always maintained the authority to classify facilities as common carrier facilities subject to Title II of the Communications Act if the public interest requires that the facilities be offered to the public indifferently. 10. Regarding the second prong of the test, the Joint Applicants state that capacity will not be sold indifferently to the user public. We therefore conclude that the Joint Applicants will operate TAT-14 on a non-common carrier basis. 11. We conclude that the Joint Applicants will not offer capacity in TAT-14 to the public on a common carrier basis and that the public interest does not require that they do so. Accordingly, we conclude that it is appropriate to license TAT-14 on a non-common carrier basis. We also find that the Joint Applicants will not provide a telecommunications service for a fee to such a class of users as to be "effectively available directly to the public" and thus will not be a "telecommunications carrier" under the Telecommunications Act of 1996. B. Ownership and Landing Points 12. The Joint Applicants have provided the ownership information required by sections 1.767(a)(6), 63.18(e)(6), and 63.18(h) of the Commission's rules. Segment T1 located at Manasquan, New Jersey will be owned by Sprint, and landing point Segment T2 located at Tuckerton, New Jersey will be owned by AT&T. Sprint and AT&T are also responsible for the operation and maintenance of the T1 and T2 segments, respectively, including real property, buildings and terminal equipment, as well as the U.S. territorial portions of the submarine cable from the landing stations to the U.S territorial limit. The foreign cable stations and the portions of the submarine cable will be owned as follows: Segment T3 located at Widemouth, North Cornwall, U.K., owned by BT; Segment T4 located at St. Valery, France, owned by FT; Segment T5 located at Katwijk, the Netherlands, owned by KPN; Segment T6 located at Norden, Germany, owned by DTAG; and Segment T7 located at Blaabjerg, Denmark, owned by Telia. 13. The application states that TAT-14 will land at Manasquan, New Jersey; Tuckerton, New Jersey; Blaabjerg, Denmark; Norden, Germany; Katwijk, the Netherlands; St. Valery, France; and Widemouth, North Cornwall, United Kingdom. The Manasquan, New Jersey station will be located at Latitude 40.129868, Longitude -74.0430879. The Tuckerton, New Jersey station will be located at Latitude 39.6135, Longitude -74.32804. We find the applicant's description of the likely locations of the remaining landing points to be sufficient to determine that the proposed cable system will comply with the provisions of the Cable Landing License Act and Commission rules. Section 1.767(a) of the Commission's rules permits applicants in an initial application to provide a general description of the landing points. The applicant must file a specific description of the remaining landing points, including a map, no later than 90 days prior to construction at that landing point. The Commission will give public notice of the filing of the specific description, and grant of the license will be considered final with respect to that landing point unless the Commission notifies the applicant to the contrary no later than 60 days after receipt of the specific description of the landing points. C. Environmental Impact 14. The Commission has found that the construction of new submarine cable systems, individually and cumulatively, will not have a significant effect on the environment and therefore should be expressly excluded from our procedures implementing the National Environmental Policy Act of 1969. Therefore, the Joint Applicants are not required to submit an environmental assessment, and this Application is categorically excluded from environmental processing. V. Conclusion 15. We grant the Joint Applicants Application for authority to land and operate a non-common carrier fiber optic submarine cable extending between the United States, Denmark, Germany, the Netherlands, France, and the United Kingdom, subject to the conditions listed below. VI. Ordering Clauses 16. Consistent with the foregoing, we hereby GRANT AND ISSUE the Joint Applicants a license to land and operate a non common carrier fiber optic submarine cable system (consisting of four fiber pairs, each fiber pair to operate at 160 Gbps with an initial capacity for each fiber pair that is equivalent to 1024-155 Mbps BSMs, with each BSM containing 63 MIUs) extending between landing points at cable stations in Manasquan, New Jersey; Tuckerton, New Jersey; Blaabjerg, Denmark; Norden, Germany; Katwijk, the Netherlands; St. Valery, France; and Widemouth, North Cornwall, United Kingdom under the provisions of the Cable Landing License Act and Executive Order 10530. This grant is subject to all rules and regulations of the Commission; any treaties or conventions relating to communications to which the United States is or may hereafter become a party; any action by the Commission or the Congress of the United States rescinding, changing, modifying, or amending any rights accruing to any person hereunder; and the following conditions: (1) The location of the cable system within the territorial waters of the United States, its territories and possessions, and upon its shore shall be in conformity with plans approved by the Secretary of the Army, and the cable shall be moved or shifted by the Licensees at their expense upon the request of the Secretary of the Army whenever he or she considers such course necessary in the public interest, for reasons of national defense, or for the maintenance or improvement of harbors for navigational purposes; (2) The Licensees shall at all times comply with any requirements of U.S. government authorities regarding the location and concealment of the cable facilities, buildings, and apparatus for the purpose of protecting and safeguarding the cable from injury or destruction by enemies of the United States; (3) The Licensees or any persons or companies controlling them, controlled by them, or under direct or indirect common control with them do not enjoy and shall not acquire any right to handle traffic on a common carrier basis to or from the United States, its territories, or its possessions unless such service be authorized by the Commission pursuant to Section 214 of the Communications Act, as amended; (4) The Licensees or any persons or companies controlling them, controlled by them, or under direct or indirect common control with them shall not acquire or enjoy any right to land, connect, or operate submarine cables that is denied to any other United States company by reason of any concession, contract, understanding, or working arrangement to which the Licensees or any persons controlling them, controlled by them, or under direct or indirect common control with them are parties; (5) Neither this license nor the rights granted herein shall be transferred, assigned, or in any manner either voluntarily or involuntarily disposed of or disposed of indirectly by transfer of control of the Licensees to any persons, unless the Commission shall give prior consent in writing; (6) The Licensees shall notify the Commission in writing of the precise locations at which the cable will land in Blaabjerg, Denmark; Norden, Germany; Katwijk, the Netherlands; St. Valery, France; and Widemouth, North Cornwall, United Kingdom. Such notification with respect to any given landing location shall occur no later than ninety days prior to commencing construction at that landing location. The Commission will give public notice of the filing of each description, and grant of this license will be considered final with respect to that landing location unless the Commission issues a notice to the contrary no later than sixty days after receipt of the specific description; (7) The Commission reserves the right to require the Licensees to file an environmental assessment or environmental impact statement should it determine that the landing of the cables at those locations and construction of necessary cable landing stations would significantly affect the environment within the meaning of Section 1.1307 of the Commission's procedures implementing the National Environmental Policy Act of 1969; this license is subject to modification by the Commission upon its review of any environmental assessment or environmental impact statement that it may require pursuant to its rules; (8) Pursuant to Section 2 of the Cable Landing License Act, 47 U.S.C.  35; Executive Order No. 10530, as amended; and Section 214 of the Communications Act of 1934, as amended, 47 U.S.C.  214, the Commission reserves the right to impose common carrier regulation or other regulation consistent with the Cable Landing License Act on the operations of the cable system if it finds that the public interest so requires; (9) The Licensees shall maintain de jure and de facto control of the U.S. portion of the cable system, including the cable landing stations in the United States, sufficient to comply with the requirements of this license; (10) This license is revocable by the Commission after due notice and opportunity for hearing pursuant to Section 2 of "An Act relating to the Landing and Operation of Submarine Cables in the United States"; 47 U.S.C.  35, or for failure to comply with the terms of this License; (11) The Licensees shall notify the Commission in writing of the date on which the cable is placed in service, and this license shall expire 25 years from such date, unless renewed or extended upon proper application, and, upon expiration of this license, all rights granted under it shall be terminated; and (12) The terms and conditions upon which this license is given shall be accepted by the Licensees by filing a letter with the Secretary, Federal Communications Commission, Washington, D.C. 20554, within 30 days of the release of the cable landing license. 17. This Order is issued under Section 0.261 of the Commission's rules, 47 C.F.R.  0.261, and is effective upon release. Petitions for reconsideration under Section 1.106 or applications for review under Section 1.115 of the Commission's rules, 47 C.F.R.  1.106, 1.115, may be filed within 30 days of the date of public notice of this order (see 47 C.F.R.  1.4(b)(2)). FEDERAL COMMUNICATIONS COMMISSION Rebecca Arbogast Chief, Telecommunications Division International Bureau Appendix B Attached Schedules A, B, C and C-1 of the TAT-14 Construction and Maintenance Agreement Appendix C Schedule of Co-Chairmen or Responsible Parties for the Managing Group, Procurement Group, Assignment Routing and Restoration Subcommittee, Financial and Administrative Subcommittee, Central Billing Party and Network Administrator As summarized from Annexes 1 through 6 of the TAT-14 Construction and Maintenance Agreement Managing Group One U.S. member Party and one European Member party elected by the Managing Group Representatives Procurement Group British Telecommunications plc (BT) and France Telecom (or the Chairperson of the Procurement Group shall rotate among the Terminal Parties) Assignment, Routing and Restoration Subcommittee Cable & Wireless Global Network Organization Limited and BT Financial and Administrative Subcommittee MCI International, Inc. Central Billing Party Appointed by the Managing Group Network Administrator One of the Terminal Parties as Appointed by the Managing Group