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Introduction ă  S[1.` ` In this Order, we grant the application of Project Oxygen (USA) LLC (O2 (USA))  S'under the Cable Landing License Act yO'ԍAn Act Relating to the Landing and Operation of Submarine Cables in the United States, 47 U.S.C.  34!39 (1994) (Cable Landing License Act). for authority to land and operate a private fiber optic submarine cable system to be called the OXYGEN Network, extending between the United States and the overseas points listed in the attached Appendix. This system will be operated on a non!common  S[carrier basis. We find that O2 (USA) has 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.  Sx'fO II. Application Ġ  S([2.` ` O2 (USA), a Delaware corporation, is a wholly owned subsidiary of Project Oxygen Ltd., a Bermuda corporation that is wholly owned by CTR Holdings L.P. (CTR), a limited partnership registered in the State of Delaware. CTR is owned by individuals and has no affiliation with any  S[foreign communications carrier. O2 (USA) will own all of the U.S. landing stations, the U.S. terrestrial facilities, and all cable segments between the U.S. landing stations and the limit of U.S. territorial waters. Project Oxygen Ltd. will own the submarine cable segments in international waters and will act as the overall manager of the OXYGEN Network. The application states that, to the extent possible, a party in each foreign country where the network lands will own the landing station(s) in that country and the cable segments between the landing station(s) and the limit of that country's territorial waters.  Sp#'3.` ` The first phase of the proposed OXYGEN Network will comprise up to 168,000 km of fiber optic cable, including 14,000 km of terrestrial segments, linking together a total of 78 countries"H$ +))88($" and locations on all continents except Antarctica (see Appendix). This first phase will include 99 landing points around the world, including 10 in the United States and its territories.  S'4.` ` The basic link design capacity of the OXYGEN Network is 640 gigabits per second (Gbps). The network's transmission capacity comprises (a) amplified submarine links of greater than 200 km in length, consisting of four fiber pairs with a total transmission capacity of 640 Gbps; (b) unamplified submarine links of up to 200 km in length, consisting of 12 fiber pairs with a total transmission capacity of 1.92 terabits per second (Tbps); (c) terrestrial transmission capacity of 1.92 Tbps; and (d)spur capacity of 10 Gbps per wavelength dropped at the spur landing station. Upon completion of phase one of the network, the total length of the system, excluding spare fibers, is anticipated to be 168,000 km. All of the optical fibers used in the network will support sixteencolor wavelength division multiplexing, with each color operating at a transmission rate of 10 Gbps (STM64). Operation of the OXYGEN Network is expected to begin in the fourth quarter of 2000.   S 'P III. Comments ă  S '5.` ` The application was placed on public notice on October 23, 1998. We received no  SX'comments. Pursuant to Section 1.767(b) of the Commission's rules,PXG yO'ԍ47 C.F.R.  1.767(b) (1997).P the Cable Landing License Act,  S0'and Executive Order No. 10530, we informed the Department of State of the application.@X0XG yO('ԍLetter from Diane J. Cornell, Chief, Telecommunications Division, International Bureau, Federal Communications Commission, to Steven W. Lett, Deputy U.S. Coordinator, Office of International Communications and Information Policy, U.S. Department of State (Oct. 30, 1998).@ 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  S'landing license.XxG yO'ԍLetter from Amb. Vonya B. McCann, United States Coordinator, International Communications and Information Policy, U.S. Department of State, to Regina M. Keeney, Chief, International Bureau, FCC (Jan. 15, 1999).  Sh'R8 IV. Discussion ă  S' A.` ` Private Submarine Cable Policy  S[86.` ` O2 (USA) proposes to operate the OXYGEN Network as a non!common carrier  S[submarine cable system in which capacity will not be offered indifferently to the user public. O2 (USA) requests a license under the Commission's private submarine cable policy, which is intended to  SP'promote competition in the provision of international transmission facilities.PG {O#'ԍSee TelOptik Ltd., Memorandum Opinion and Order, 100 F.C.C.2d 1033, 104042, 104648 (1985);  {OR$'see also Cable & Wireless, plc, Cable Landing License, 12 FCC Rcd 8516 (1997). 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" +p'p'88" expect that the applicant would make capacity available to the public indifferently and  S'indiscriminately.^G {O@'ԍSee Cable & Wireless, 12 FCC Rcd at 8522; see also Optel Communications, Inc., Conditional Cable  {O 'Landing License, 8 FCC Rcd 2267 (1993); National Association of Regulatory Utility Commissioners v. FCC,  {O'525 F.2d 630, 642 (D.C. Cir.) (NARUC I), cert. denied, 425 U.S. 992 (1976).  S'7.` ` 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 there are sufficient alternatives, the Commission has found that the licensee will lack market power and will not be able to charge monopoly rates for cable capacity. The Commission has found that, in those circumstances, the public  Sp'interest would be served by allowing a submarine cable to be offered on a non!common carrier basis.mpG {O 'ԍSee, e.g., Cable & Wireless, 12 FCC Rcd at 8523.m  S '8.` ` No one has suggested that the public interest requires the OXYGEN Network to be  S [operated on a common carrier basis. O2 (USA) is not affiliated with any carriers and therefore does not control any bottleneck facilities in the markets the OXYGEN Network proposes to serve. Furthermore, the applicant argues that the network's proposed operational and management approach  S 'effectively requires that it not be subject to common carrier regulation.Y G {O'ԍXSee Application at 7!8.(#Y No commenter has disputed this argument, 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 the OXYGEN Network at this time. We note, however, that we retain the authority to impose common carrier or commoncarrierlike obligations on the operations of this or any other submarine cable system if the public interest so  S'requires. G {Oj'ԍSee 47 U.S.C. 35 (providing that a license may be granted "upon such terms as shall be necessary to assure just and reasonable rates and service in the operation and use of cables so licensed"). 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  Sh'facilities be offered to the public indifferently.7 ^hl G {Ot'ԍSee, e.g., Cable & Wireless, 12 FCC Rcd at 8531; AT&T Corp. et al., Cable Landing License,  {O>'DA98-1711, File No. SCLAMD1998090200018,  15 (rel. Dec. 15, 1998) (ChinaUS Cable Landing  {O 'License).7  S'9.` ` Regarding the second prong of the test, we conclude that there is no reason to expect  S[that capacity in the proposed cable system would be held out to the public indifferently. O2 (USA) states that it is not a common carrier, does not intend to operate as a common carrier in the future, will not offer service indiscriminately to the public, will not provide any service that is effectively available to the public, and will not endeavor to serve all people indifferently. Rather, the applicant states, it will make individualized decisions in particular cases whether and on what terms to deal with"P +p'p'88 "  S[prospective customers. G {Oh'ԍSee Application at 16; see also id. at 6!8 (describing business plans). We therefore conclude that O2 (USA) will operate the OXYGEN Network on a non!common carrier basis.  S[ 10.` ` We conclude that O2 (USA) will not offer capacity in the OXYGEN Network 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 the OXYGEN Network on a non!common carrier basis. We also find that the applicant will not provide a telecommunications service for a fee to such class of users as to be "effectively available directly to the public" and thus will not be  S'"telecommunications carriers" under the 1996 Act. ZG {O 'ԍSee 47 U.S.C. 153(44) (defining "telecommunications carrier"); Cable & Wireless, 12 FCC Rcd at 8523.  Sp' B.` ` Ownership and Landing Points  S [ 11.` ` O2 (USA) has provided the ownership information required by Sections 1.767(a)(6),  S [63.18(e)(6), and 63.18(h) of the Commission's rules. O2 (USA), a Delaware corporation, is ultimately  S 'controlled by one family,  G yO$'ԍThe partnership is owned by the Tagare family as follows: Neil M. Tagare, a U.S. citizen, is the general partner and holds a 25 percent equity interest. A 30 percent limited partner equity interest is held in trust for Sonia S. Tagare and Neil S. Tagare, both of whom are U.S. citizens. The remaining limited partner equity interests are held by Neeta Tagare (25%), Pradeep Tagare (10%), and Dilip M. Tagare (10%), all of whom are citizens of India and U.S. resident aliens. through its ownership of CTR, a limited partnership, which, in turn, owns  S [Project Oxygen Ltd., the Bermuda corporation. O2 (USA) is not affiliated with any foreign  S [communications carrier. O2 (USA) will own the U.S. cable landing stations, the U.S. terrestrial facilities, and the cable segments between the U.S. landing stations and the limit of U.S. territorial waters. Project Oxygen Ltd. will own the submarine cable segments in international waters.  S' 12.` ` The application states that there will be 10 landing points in the United States, its territories and possessions: at Nedonna, Oregon; San Francisco, California; San Luis Obispo, California; Tuckerton, New Jersey; Boston, Massachusetts; West Palm Beach, Florida; Agana, Guam; Honolulu, Hawaii; San Juan, Puerto Rico; and Midway Islands. The nonU.S. landing points are identified in the Appendix to this Order. We find the applicant's description of the likely 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  S'permits applicants in an initial application to provide a general description of the landing points.[d G yO!'ԍX47 C.F.R. 1.767(a)(5) (1997).(#[ The applicant must file a specific description of any landing point, 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 applicants to the contrary no later than 60 days after receipt of the specific description of the landing point." +p'p'88y"Ԍ S'ԙ  C.` ` Environmental Impact  S' 13.` ` Based on the information provided by the applicant and pursuant to the Commission's  S'procedures implementing the National Environmental Policy Act of 1969,[G yO'ԍ47 C.F.R.  1.1301!.1319 (1997).[ we find that action on the present application would not significantly affect the environment according to Section 1.1307(a) or (b) of the Commission's rules. Therefore, pursuant to Section 1.1306, we conclude that grant of the  S[requested license would not significantly affect the environment. Consequently, O2 (USA) is not required to submit an environmental assessment, and this application is categorically excluded from environmental processing. As stated above, however, we condition this license upon final approval of each landing point. If necessary, we will address environmental impacts after the applicant specifically identifies the landing points.  S '{P IV. Conclusion ă  S [ 14.` ` We grant O2 (USA)'s application for authority to land and operate a non!common carrier fiber optic submarine cable extending between the United States and various overseas points, as described in the Appendix to this order, subject to the conditions listed below.   S0'}; V. Ordering Clauses Ġ  S'15.` ` Consistent with the foregoing and pursuant to the Cable Landing License Act and  S[Executive Order 10530, we hereby GRANT AND ISSUE O2 (USA) a license to land and operate a non!common carrier fiber optic cable system extending between  i&aL the  i&aL ten U.S. landing points and the overseas countries and locations listed in the Appendix hereto. This grant is subject to all rules and regulations of the Federal Communications 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: X(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 Licensee at its 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;(# X(2) The Licensee 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;(# X(3) The Licensee or any persons or companies controlling it, controlled by it, or under direct or indirect common control with it do not enjoy and shall not acquire any right to handle"p#X+p'p'88"" traffic 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;(# X(4) The Licensee or any persons or companies controlling it, controlled by it, or under direct or indirect common control with it shall not acquire or enjoy any right for the purpose of handling or interchanging traffic to or from the United States, its territories, or its possessions to land, connect, or operate cables or land lines, to construct or operate radio stations, or to interchange traffic, that is denied to any other United States company by reason of any concession, contract, understanding, or working arrangement to which the Licensee or any persons controlling it, controlled by it, or under direct or indirect common control with it are parties;(# X(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 Licensee to any persons, unless the Commission shall give prior consent in writing;(# X(6) The Licensee shall notify the Commission in writing of the precise locations at which the cable will land in the United States and in foreign countries. 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 point unless the Commission issues a notice to the contrary no later than sixty days after receipt of the specific description;(#  S'X(7) 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 additional common carrier or commoncarrierlike regulation on the operations of the cable system if it finds that the public  SP'interest so requires; (# X(8) The Commission reserves the right to require the Licensee to file an environmental assessment or environmental impact statement should it determine that the landing of the cable 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;(#  S!'X(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  Sr#'requirements of this license; (# "J$+p'p'88""ԌX(10) This license is revocable by the Commission after due notice and opportunity for hearing pursuant to section 2 of the Cable Landing License Act, 47 U.S.C.  35, or for failure to comply with the terms of the authorizations;(# X(11) The Licensee 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(# X(12) The terms and conditions upon which this license is given shall be accepted by the Licensee 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.(#  S ' 16.` ` This Order is issued under Section 0.261 of the Commission's rules, 47 C.F.R. 0.261, and is effective upon adoption. 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)). ` `  hhCqFEDERAL COMMUNICATIONS COMMISSION ` `  hhCqRebecca Arbogast ` `  hhCqChief, Telecommunications Division ` `  hhCqInternational Bureau "+p'p'88P"  S' HXX  lgAppendix  OXYGEN NETWORK LANDING POINTS  S'  S'X` hp x (#%'0*,.8135@8: