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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-11-IH-0059
In the Matter of
) Acct. No.: 201232080006
Tricom USA, Inc.
) FRN: 0005005236
)
CONSENT DECREE
1. The Enforcement Bureau of the Federal Communications Commission and
Tricom USA, Inc., by their authorized representatives, hereby enter
into this Consent Decree for the purpose of terminating the Bureau's
investigation into Tricom USA Inc.'s compliance with Section 214 of
the Communications Act of 1934, as amended; the Cable Landing License
Act of 1921; and the Commission's rules and Orders concerning the
transfer of control and assignment of domestic and international
Section 214 authorizations and the transfer of control and assignment
of interest in submarine cable landing licenses; the relinquishment of
international Section 214 authorizations; the relinquishment of
interest in submarine cable landing licenses; the discontinuance of
telephone service; and the assignment of telecommunications service
customer accounts.
I. DEFINITIONS
2. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C. S:
151 et seq.
b. "Adopting Order" or "Order" means an Order of the Commission adopting
the terms of this Consent Decree without change, addition, deletion or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Commission" or "FCC" means the Federal Communications Commission and
all of its bureaus and offices.
e. "Cable Landing License Act" means the Cable Landing License Act of
1921, 47 U.S.C. S:S: 34-39.
f. "Effective Date" means the date on which the Commission releases the
Adopting Order.
g. "Executive Branch Agencies" means the Department of Justice, including
the Federal Bureau of Investigation, and the Department of Homeland
Security.
h. "Investigation" means the Bureau's investigation commenced by its
April 19, 2011 letter of inquiry regarding the Tricom USA's compliance
with Section 214 of the Act, 47 U.S.C. S: 214, the Cable Landing
License Act, 47 U.S.C. S:S: 34-39, and the Rules and Orders concerning
the transfer of control and assignment of domestic and international
Section 214 authorizations and the transfer of control and assignment
of interest in submarine cable landing licenses; the relinquishment of
international Section 214 authorizations; the relinquishment of
interest in submarine cable landing licenses; the discontinuance of
telephone service; and the assignment of telecommunications service
customer accounts.
i. "Parties" means Tricom USA and the Bureau, each of which is a "Party."
j. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
k. "Tricom USA" means Tricom USA, Inc. and its predecessors-in-interest
and successors-in-interest.
II. BACKGROUND
3. Section 214 of the Act requires telecommunications carriers to obtain
a certificate of public convenience and necessity from the Commission
before constructing, acquiring, operating or engaging in transmission
over lines of communications, or before discontinuing, reducing or
impairing service to a community. In accordance with Section 63.03 of
the Rules, any domestic carrier seeking to transfer control of or
assign lines or authorization to operate pursuant to Section 214 must
obtain prior approval from the Commission. Section 63.04 of the Rules
sets forth the required contents of domestic Section 214 transfer of
control and assignment applications. Section 63.24 of the Rules sets
forth the required contents of international Section 214 transfer of
control and assignment applications.
4. The Commission's authority to grant, withhold, or condition cable
landing licenses derives from the Cable Landing License Act of 1921
and Executive Order No. 10530. The Commission has codified rules
pursuant to this authority at Section 1.767 of the Rules. Section 34
of the Cable Landing License Act states that no person shall land or
operate in the United States "any submarine cable directly or
indirectly connecting the United States with any foreign country, or
connecting one portion of the United States with any other portion
thereof, unless a written license to land or operate such cable has
been issued by the President of the United States." Section 35 of the
Cable Landing License Act provides that "the President may withhold or
revoke such license when he shall be satisfied after due notice and
hearing that such action will assist in securing rights for the
landing or operation of cables in foreign countries, or in maintaining
the rights or interests of the United States or of its citizens in
foreign countries, or will promote the security of the United States,
or may grant such license upon such terms as shall be necessary to
assure just and reasonable rates and service in the operation and use
of cables so licensed."
5. Executive Order No. 10530 delegates to the Commission the President's
authority under the Cable Landing License Act, with the proviso that
"no such license shall be granted or revoked by the Commission except
after obtaining approval of the Secretary of State and such advice
from any executive department or establishment of the Government as
the Commission may deem necessary." Since 1954, the Commission has
exercised the authority granted by the Cable Landing License Act and
Executive Order No. 10530 to grant submarine cable landing licenses.
6. Tricom USA is a Delaware corporation established to originate,
transport, and terminate international long distance traffic primarily
to resellers and other carriers. For a period of time, Tricom USA also
offered domestic U.S. and international long distance service to end
user customers in the United States. Tricom USA's
predecessor-in-interest ("Old Tricom USA") held a blanket domestic
Section 214 authorization, multiple international Section 214
authorizations, and fractional interests in submarine cable landing
licenses associated with the Americas II, MAYA-1 and the Pan American
cable systems.
7. For purposes of this Consent Decree, Tricom provided the following
explanatory information: On February 29, 2008, Old Tricom USA and its
parent company Tricom, S.A. ("Old Tricom, S.A.") filed for Chapter 11
bankruptcy protection in the United States Bankruptcy Court for the
Southern District of New York ("Bankruptcy Court"). Upon commencement
of the bankruptcy proceeding the legal posture of Old Tricom USA and
Old Tricom, S.A. was converted to debtor-in-possession status ("Tricom
USA DIP" and "Tricom S.A. DIP," respectively). As a consequence of
this change in legal status, there was an involuntary pro forma
assignment of submarine cable landing licenses, and international
Section 214 authorizations, and an involuntary transfer of control of
a domestic Section 214 authorization from Old Tricom USA to Tricom USA
DIP. On March 27, 2008, pursuant to Sections 63.03(d)(2) and 63.24(g)
of the Rules, respectively, counsel to Tricom USA DIP notified the
Wireline Competition Bureau ("WCB") of the pro forma transfer of
control of Old Tricom USA's domestic Section 214 authorization to
Tricom USA DIP and notified the International Bureau ("IB") of the
involuntary pro forma assignment of Old Tricom USA's multiple
international Section 214 authorizations to Tricom USA DIP. On March
28, 2008, pursuant to Section 1.767(a)(11) of the Rules, Old Tricom
USA and Tricom USA DIP applied to IB for approval of the pro forma
assignment of Old Tricom USA's interests in the Americas II, Maya-1
and Pan American submarine cable systems to Tricom USA DIP. On April
16, 2008, IB granted authority for the involuntary pro forma
assignment of international Section 214 authorizations from Old Tricom
USA to Tricom USA DIP. On June 8, 2009, IB granted authority for the
involuntary pro forma assignment of Old Tricom USA's interest in the
above referenced submarine cable landing licenses to Tricom USA DIP.
8. On October 21, 2009, the Bankruptcy Court confirmed a reorganization
plan ("Plan") for Tricom, S.A. DIP and its affiliated debtors, which
included Tricom USA DIP. Tricom supplied the following information
about the Plan:
The Plan provided for the formation of a new holding company, Hispaniola
Telecom Holding, Ltd. ("Holding Company"), which would upon the effective
date of the Plan own at least 97 percent of the equity interest in a
reorganized Tricom, S.A. In turn, the reorganized Tricom, S.A. would
wholly own a reorganized Tricom USA. The Plan allowed for holders of
unsecured claims against Tricom, S.A. and its Affiliated Debtors to
receive a distribution of shares of Holding Company in proportion to the
amount of debt they held on the Plan effective date. It also allowed
creditors to sell or acquire debt after the October 21, 2009 confirmation
date of the Plan and before the April 7, 2010 effective date of the Plan.
Based on the then-existing circumstances, and through this mechanism,
unsecured creditor AMZAK Capital Management, LLC ("AMZAK") was expected to
obtain a non-controlling direct interest in Holding Company in excess of
18.5 percent, but less than 50 percent, and through its interest in
Holding Company obtain a non-controlling indirect interest in Tricom USA
of less than 50 percent. This Plan proposed changing the direct and
indirect control over the license interests and authorizations held by
Tricom USA DIP after it emerged from bankruptcy as Tricom USA. Tricom USA
DIP was required to obtain-and did obtain-IB and WCB approval for the
transactions necessary to effectuate the change in control over the
license interests and authorizations contemplated by the Plan.
9. Although AMZAK had held zero equity interest in Tricom S.A. prior to
the Plan effective date, after the debt holdings of all unsecured
creditors were tallied on April 7, 2010, AMZAK ended up owning debt
equal to more than 50 percent of Holding Company, and thus more than
50 percent of Tricom S.A. and Tricom USA. Tricom has stated that this
was contrary to what Tricom USA DIP had estimated would be in place
after confirmation of the Plan in October 2009, and thus it was
contrary to what it had represented in its applications to IB and WCB
and to the transactions that these Bureaus had approved concerning
ownership of the newly-formed Tricom USA. Revised ownership
percentages were reported by Tricom USA to the Commission by letter
dated May 7, 2010 following the tally of debt ownership as of the
April 7, 2010 effective date. Because Holding Company controlled 97
percent of Tricom S.A. and Tricom S.A., in turn, controlled 100
percent of Tricom USA, through its interest in Holding Company, AMZAK
now held indirect control over Tricom USA. AMZAK's indirect
acquisition of Tricom USA gave AMZAK indirect control over the
submarine cable landing license interests and the international and
domestic Section 214 authorizations held by Tricom USA as of April 7,
2010. On July 19, 2010, Tricom USA filed applications seeking FCC
consent to the substantial transfer of control of its Section 214
authorizations and cable landing licenses to AMZAK and for the pro
forma transfer of control from AMZAK to its wholly owned subsidiary,
Broadband Investments, Limited ("Broadband"). Based on the above
facts, the Commission determined that for the following transactions
Tricom USA did not seek and obtain timely IB or WCB approval:
a. the unauthorized transfer of control of Tricom USA's domestic Section
214 authorization to AMZAK;
b. the unauthorized transfer of control of international Section 214
authorizations from Tricom USA to AMZAK;
c. the unauthorized transfer of control of Tricom USA's interest in the
submarine cable landing licenses of the Americas II, MAYA-1, and the
Pan American cable systems to AMZAK.
10. Following the April 7, 2010 determination by the Bankruptcy Court of
control of Holding Company, AMZAK transferred the majority interest that
it acquired in Holding Company to its wholly-owned subsidiary Broadband,
which the Commission determined resulted in two additional unauthorized
pro forma transactions:
a. the unauthorized pro forma transfer of international Section 214
authorizations from AMZAK to Broadband caused by the failure to give
notice to IB within 30 days of the consummation of the transaction;
b. the unauthorized pro forma transfer of control of AMZAK's interest in
the submarine cable landing licenses of the Americas II, MAYA-1 and
the Pan American cable systems to Broadband caused by the failure to
obtain the required pre-authorization from IB.
It is this series of transactions that gave rise to an investigation by
the Bureau and resulted in this Consent Decree.
11. Tricom USA and AMZAK did not file transfer of control applications
with WCB and IB, seeking authority for these five substantial and pro
forma transactions until July 19-20, 2010. Following the July 2010
filings, Tricom USA and AMZAK filed requests for Special Temporary
Authority ("STA") with WCB and IB. On August 25, 2010, the Executive
Branch Agencies requested that the Commission defer action on the Tricom
USA transfer of control and assignment applications pending their review
for potential national security, law enforcement, and public safety issues
that might exist due to a foreign ownership component of the transactions.
The Commission granted this request.
12. Tricom has indicated that after AMZAK became the controlling
shareholder of Tricom, S.A., it made a corporate decision to shut down
Tricom USA, whose business then consisted of brokering call terminations
by U.S. operators in the Dominican Republic with Tricom SA. On December
17, 2010, Tricom USA notified the Commission that it would cease
operations in the United States as of December 31, 2010, and that the
Company would surrender its international Section 214 authorization
effective December 31, 2010. Tricom USA ceased all operations on December
31, 2010. On April 19, 2011, the Bureau issued a letter of inquiry to
Tricom USA. A response was filed on May 17, 2011.
13. Based in part on Tricom USA's representation to the Executive Branch
Agencies that it sought to surrender to the Commission the authorizations
and licenses it had obtained for purposes of providing intrastate and
international telecommunications service, on September 20, 2011, the
Executive Branch Agencies withdrew their request to defer action on the
pending Tricom USA and AMZAK. This prompted WCB and IB to act on the
pending transfer of control applications. On September 21, 2011, WCB
granted the application to transfer control of domestic Section 214
authorization from Tricom USA to AMZAK, and IB granted its consent to the
transfer of control of international Section 214 authorizations from
Tricom USA to AMZAK and the application for the pro forma transfer of
control of international Section 214 authorizations from AMZAK to
Broadband.
14. On September 28, 2011, Tricom USA filed with IB its application for
consent to modify these cable landing license applications, and on October
4, 2011, IB placed it on Public Notice for comment. On November 16, 2011,
IB approved of Tricom USA's withdrawal as a fractional interest holder of
the Americas II, MAYA-1, and Pan American submarine cable landing licenses
and consented to the applications for the substantial transfer of control
of these license interests to AMZAK, and AMZAK's pro forma transfer of
control of these interests to Broadband.
III. TERMS OF AGREEMENT
15. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by incorporation
of such provisions by reference in the Adopting Order without change,
addition, modification, or deletion.
16. Jurisdiction. Tricom USA agrees that the Bureau has jurisdiction over
Tricom USA and the matters contained in this Consent Decree, and the
Bureau has the authority to enter into and adopt this Consent Decree.
17. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date as defined herein. Upon
release, the Adopting Order and this Consent Decree shall have the same
force and effect as any other Order of the Bureau. Any violation of the
Adopting Order or of the terms of this Consent Decree shall constitute a
separate violation of a Bureau Order, entitling the Bureau to exercise
any rights and remedies attendant to the enforcement of a Commission
Order.
18. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further expenditure of
public resources, the Bureau agrees to terminate its Investigation. In
consideration for the termination of said Investigation, Tricom USA agrees
to the terms, conditions, and procedures contained herein. The Bureau
further agrees that in the absence of new material evidence, the Bureau
will not use the facts developed in this Investigation through the
Effective Date, or the existence of this Consent Decree, to institute, on
its own motion or in response to a third party objection, or recommend to
the Commission, any new proceeding, formal or informal, or take any action
on its own motion against Tricom USA concerning the matters that were the
subject of the Investigation. The Bureau also agrees that in the absence
of new material evidence it will not use the facts developed in this
Investigation through the Effective Date, or the existence of this Consent
Decree, to institute on its own motion any proceeding, formal or informal,
or take any action on its own motion against Tricom USA with respect to
Tricom USA's basic qualifications, including its character qualifications,
to hold Commission authorizations.
19. Cessation of Operations in the United States, its Territories, and
Possessions. Tricom USA has surrendered all of its domestic and
international authorizations and licenses previously granted by the
Commission for the provision of domestic and international
telecommunications services in the United States, its territories and its
possessions and between these locations and any foreign point, and has
ceased to exist as an entity that is regulated by the Commission. Tricom
USA also stipulates that, prior to the Effective Date of the Adopting
Order, it ceased all telecommunications operations.
20. Section 208 Complaints; Subsequent Investigations. Nothing in this
Consent Decree shall prevent the Commission or its delegated authority
from adjudicating complaints filed pursuant to Section 208 of the Act
against Tricom USA or its affiliates for alleged violations of the Act, or
for any other type of alleged misconduct, regardless of when such
misconduct took place. The Commission's adjudication of any such complaint
will be based solely on the record developed in that proceeding. Except as
expressly provided in this Consent Decree, this Consent Decree shall not
prevent the Commission from investigating new evidence of noncompliance by
Tricom USA with the Act, the Rules, or Commission Orders.
21. Voluntary Contribution. Tricom USA agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
twenty thousand dollars ($20,000) in United States currency. The payment
shall be made within thirty (30) calendar days after the Effective Date of
the Adopting Order. The payment must be made by check or similar
instrument, payable to the Order of the Federal Communications Commission.
The payment must include the Account Number and FRN referenced in the
caption to the Adopting Order. Payment by check or money Order may be
mailed to Federal Communications Commission, P.O. Box 979088, St. Louis,
MO 63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis,
MO 63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted. When
completing the FCC Form 159, enter the Account number in block number 23A
(call sign/other ID), and enter the letters "FORF" in block number 24A
(payment type code). Tricom USA shall send electronic notification of the
voluntary contribution payment to Pamela Kane at Pamela.Kane@fcc.gov and
Robert Krinsky at Robert.Krinsky@fcc.gov on the date payment is made.
22. Waivers. Tricom USA waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or stay, or to
otherwise challenge or contest the validity of this Consent Decree and the
Adopting Order, provided the Bureau issues an Adopting Order, adopting the
Consent Decree without change, addition, modification, or deletion. Tricom
USA shall retain the right to challenge Commission interpretation of the
Consent Decree or any terms contained herein. If either Party (or the
United States on behalf of the Commission) brings a judicial action to
enforce the terms of the Adopting Order, neither Tricom USA nor the
Commission shall contest the validity of the Consent Decree or the
Adopting Order, and Tricom USA shall waive any statutory right to a trial
de novo. Tricom USA hereby agrees to waive any claims it may have under
the Equal Access to Justice Act, 5 U.S.C. S: 504, and 47 C.F.R. S: 1.1501
et seq., relating to the matters addressed in this Consent Decree.
23. Invalidity. In the event that this Consent Decree in its entirety is
rendered invalid by any court of competent jurisdiction, it shall become
null and void and may not be used in any manner in any legal proceeding.
24. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent Rule or Order adopted by
the Commission (except an Order specifically intended to revise the terms
of this Consent Decree to which Tricom USA does not expressly consent)
that provision will be superseded by such Commission Rule or Order.
25. Successors and Assigns. Tricom USA agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
26. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties with
respect to the matters set forth herein. The Parties further agree that
this Consent Decree does not constitute either an adjudication on the
merits or a factual or legal finding or determination regarding any
compliance or noncompliance with the requirements of the Act or the Rules
and Commission's Orders.
27. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
28. Paragraph Headings. The headings of the paragraphs in this Consent
Decree are inserted for convenience only and are not intended to affect
the meaning or interpretation of this Consent Decree.
29. Authorized Representative. The individual signing this Consent Decree
on behalf of Tricom USA represents and warrants that he is authorized by
Tricom USA to execute this Consent Decree and to bind Tricom USA to the
obligations set forth herein. The FCC signatory represents that she is
signing this agreement in her official capacity and that she is authorized
to execute this Consent Decree.
30. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed and
delivered, shall be an original, and all of which counterparts together
shall constitute one and the same fully executed instrument.
________________________________
P. Michele Ellison
Chief
Enforcement Bureau
Federal Communications Commission
________________________________
Date
________________________________
Michael David Kazma
Director, Tricom USA, Inc.
Manager, AMZAK Capital Management LLC
Director, Broadband Investments, Ltd.
________________________________
Date
47 U.S.C. S: 214.
Pub. Law No. 8, 67th Cong., 42 Stat. 8 (1921); 47 U.S.C. S:S: 34-39. See
also Executive Order No. 10530 (reprinted as amended in 3 U.S.C. S: 301),
which empowers the Commission to implement the Cable Landing Act.
47 C.F.R. S:S: 1.767, 1.768, 63.03, 63.04, 63.12, 63.18, 63.19, 63.21,
63.23, 63.24, 63.61, 63.62 and 63.71.
See 47 U.S.C. S: 214(a).
See 47 C.F.R. S: 63.03; Implementation of Further Streamlining Measures
for Domestic Section 214 Authorizations, Report and Order, 17 FCC Rcd
5517, 5521, P: 5 (2002).
47 C.F.R. S: 63.04.
47 C.F.R. S: 63.24.
Pub. Law No. 8, 67th Congress, 42 Stat. 8 (1921); 47 U.S.C. S:S: 34-39.
Exec. Ord. No. 10530 S: 5(a) (May 10, 1954), reprinted as amended in 3
U.S.C. S: 301.
47 C.F.R. S: 1.767. See also Review of Commission Consideration of
Applications Under the Cable Landing License Act, Report and Order, 16 FCC
Rcd 22167 (2001).
47 U.S.C. S: 34. Section 34 states further that "[t]he conditions of
Sections 34 to 39 of this title shall not apply to cables, all of which,
including both terminals, lie wholly within the continental United
States." Id.
47 U.S.C. S: 35.
Exec. Ord. No. 10530 S: 5(a).
See, e.g., Review of Commission Consideration of Applications under the
Cable Landing License Act, Report and Order, 16 FCC Rcd 22167, 22170 P: 5
(2001).
See, e.g., IBFS File No. SCL-T/C-20100719-00014, Attachment: "Application
for Streamlined Consent to Transfer Control," (Jul. 19, 2010) at 2.
Id.
Id. See also, Application for Tricom USA, Inc. for Section 214 Authority
to Transfer Control of Blanket Domestic Authorization to AMZAK Capital
Management, WC Docket No. 10-150, at 1-2; Letter from Marc Rene Rocher,
Vice President of Int'l Business, Tricom USA, Inc., to Jaclyn A. Brilling,
Secretary to the Commission, N.Y. State Pub. Serv. Comm'n (Dec. 20, 2010)
(requesting cancellation of Tricom USA's Certificate of Public Convenience
and Necessity granted on Feb. 11, 2000, to operate as a facilities-based
common carrier and reseller of telephone service including local exchange
services), available at http://documents.dps.state.ny.us/public/
Common/ViewDoc.aspx?DocRefId=%7B96796758-116E-4F44-BAE8-483436467718%7D
(last visited Oct. 24, 2011); Letter from Chad G. Hume, Director, Office
of Telecommunications, State of New York, Dept. of Public Service to Marc
Rene Rocher, Vice President of Int'l Business, Tricom USA, Inc., Re:
Matter No. 11-0010 (Jan. 24, 2011) (acknowledging Tricom USA's
notification that it no longer provides telephone service in New York and
granting Tricom USA's request to cancel its tariff and to surrender its
Certificate of Public Convenience and Necessity effective Feb. 5, 2011),
available at http://documents.dps.state.ny.us/public/Common/ViewDoc.aspx?
DocRefId=%7BFB684C19-69A3-4F9A-926C-5E876882805A%7D (last visited Oct. 28,
2011).
47 C.F.R. S: 63.01(a). A formal application to the Commission is not
required for authorization to provide domestic interstate common carrier
communications services as long as the party obtains all necessary
authorizations from the Commission for the use of any radio frequencies.
47 C.F.R. S: 63.18. Tricom USA's international Section 214 authorizations
are as follows: IBFS File Nos. ITC-214-19930101-00257 (Old File No.
ITC-93-246); ITC-214-19960925-00468 (Old File No. ITC-96-532);
ITC-214-19970421-00220 (Old File No. ITC-97-221); ITC-214-19980430-00286
(Old File No. ITC-98-342; ITC-98-342A); ITC-214-19990325-00153;
ITC-MOD-19970618-00335 (Old File No. ITC-96-532-M). Note that while there
is just a single domestic Section 214 authorization associated with Tricom
USA, there are several international Section 214 authorizations due to the
multiple international telecommunications activities of Tricom USA.
Included are international Section 214 authorizations for global resale
service, global facilities-based service, including international Section
214 authority associated with Tricom USA's fractional interest in the
licenses of three submarine cable systems. See infra note 20.
Tricom USA holds fractional interests in the Americas II Cable System,
IBFS File No. SCL-LIC-19980429-00019 (Old File No. SCL-98-003); MAYA-1
Cable System, IBFS File No. SCL-LIC-19980429-00019, and the Pan American
Cable System, IBFS File No. SCL-LIC-19970421-00002 (Old File No.
SCL-97-001).
See Application for Authority to Transfer Control of Blanket Domestic
Section 214 Authorization from Tricom USA Debtor-in-Possession (FRN
0017516774) to Tricom USA, Inc. (FRN 0005005236) - Application to Transfer
Control - Streamlined Processing Requested, WC Docket No. 10-16 (Dec. 22,
2009), at 2 ("Tricom USA DIP/New Tricom USA Domestic Section 214 Transfer
of Control Application"), Application to Assign the International Section
214 Authorizations of Tricom USA, Inc. Debtor-In-Possession to Tricom USA,
Inc., Attachment 1 at 4, IBFS File No. ITC-ASG-20091223-000543 ("Tricom
USA DIP/New Tricom USA International Section 214 Transfer of Control
Application").
See, e.g., IBFS File No. ITC-ASG-20080327-00158, Attachment 1,
"Notification of the Pro Forma Assignment of International Section 214
Authorizations from Tricom USA, Inc. to Tricom USA, Inc.
Debtor-in-Possession; IBFS File No SCL-ASG-20080328-0009, Attachment
"Tricom USA, Inc. (FRN 00050005236) Application for the Pro Forma
Assignment of Interests in Submarine Cable Landing Licenses to Tricom USA,
Inc. Debtor-in-Possession (FRN 0017516774)," at 2-3.
Notification of Pro Forma Transfer of Control of Domestic Section 214
Authorization for Tricom USA, Inc. to Tricom USA, Inc.
Debtor-in-Possession, Letter from Cheryl A. Tritt, Counsel to Tricom USA,
Inc., to Marlene H. Dortch, Secretary, Fed. Comm. Comm'n (Mar. 27, 2008).
Pro forma transfers of control of domestic Section 214 authorizations that
occur due to bankruptcy require notification within 30 days. 47 C.F.R. S:
63.03(d)(2); IBFS File No. ITC-ASG-20080327-00158; 47 C.F.R. S: 63.24(g).
IBFS File No. SCL-ASG-2008328-009; 47 C.F.R. S: 1.767(a)(11).
International Authorization Granted: Section 214 Applications (47 C.F.R.
S: 63.18), Public Notice, Report No. TEL-01256, 23 FCC Rcd 6524 (FCC/IB
2008)(see item re: IBFS File No. ITC-ASG-20080327-00158). Note that while
WCB requires notification by a domestic common carrier when control over
it is transferred to a trustee in bankruptcy, WCB does not have a grant
process or otherwise issue a public notice in response to this
notification.
Actions Taken Under Cable Landing License Act, Public Notice, Report No.
SCL-00087, 24 FCC Rcd 7755 (FCC/IB 2009) (see item re: IBFS File No.
SCL-ASG-20080328-00009).
See, IBFS File No. ITC-ASG-20091223-00543, Attachment 1: "Application to
Assign the International Section 214 Authorizations of Tricom USA, Inc.
Debtor-in-Possession to Tricom USA, Inc.," at 5 ("Tricom USA DIP/Tricom
USA Int'l Section 214 Auth. Transfer Application"); IBFS File No.
SCL-ASG-20091223-00040, Attachment: "Application to Assign Interests in
Submarine Cable Landing Licenses-Streamlined Processing Requested," at 3-4
("Tricom USA DIP/Tricom USA Sub. Cable Transfer Application"); Application
for Authority to Transfer Control of Blanket Domestic Section 214
Authorization from Tricom USA, Inc. Debtor-in-Possession (FRN 0017516774)
to Tricom USA, Inc. (FRN 0005005236), Attachment: "Application to Transfer
Control-Streamlined Processing Requested," WC Docket No. 10-16, at 2-3
("Tricom USA DIP/Tricom USA Domestic Section 214 Auth. Transfer
Application").
Id.
Id.
Tricom USA DIP/Tricom USA Int'l Section 214 Auth. Transfer Application at
3; Tricom USA DIP/Tricom USA Sub. Cable Transfer Application at 6; Tricom
USA DIP/Tricom USA Domestic Section 214 Auth. Transfer Application at 3.
See 47 C.F.R. S:S: 1.767(a)(11), 63.03, 63.18(e).
See, e.g., Letter from Michelle W. Cohen, Thompson Hine LLP, Counsel to
Tricom USA, Inc. to Marlene Dortch, Secretary, Fed. Comm. Comm'n (May 7,
2010) (re: Consummation Notice for Joint International and Domestic
Section 214 Applications Filed and Granted for the Assignment of
Authorizations from Tricom USA, Inc. Debtor-in-Possession to Tricom USA,
Inc., WC Docket No. 10-16; IBFS File Nos. ITC-ASG-20091223-00543 and
SCL-ASG-20091223-00040).
See 47 C.F.R. S:S: 63.03, 63.04.
See 47 C.F.R. S: 63.24(e).
See 47 C.F.R. S:1.767(a)(11).
Supra note 34.
See 47 C.F.R. S: 63.24(f).
See 47 C.F.R. S:1.767(a)(11). Note that the pro forma transfer of control
of the interest in the submarine cable landing licenses required a
pre-authorization application to IB because the initial license interest
was granted prior to the 2002 effective date of the 2001 amendment to
Section 1.767, which permits a post-consummation notification of pro forma
transactions within 30 days of consummation. A pre-2002 submarine cable
landing license required a separate application to modify the license to
be eligible for a post-hoc notification of a pro-forma transaction. The
application was not made in this instance. See Review of Commission
Consideration of Applications Under the Cable Landing License Act, Report
and Order, 16 FCC Rcd 22167, 22200, 22207 P:P: 63, 80 (2001); 67 Fed. Reg.
1619 (Jan. 14, 2002).
See Letter from Michelle Cohen, Thompson Hine LLP, Counsel to Tricom USA,
Inc. to Fed. Comm. Comm'n and accompanying Application by Tricom USA, Inc.
for Authority to Transfer Control of Domestic Section 214 Authority to
AMZAK Capital Mgt. Inc., WC Docket No. 10-150 (filed Jul. 19, 2010); IBFS
File No. ITC-T/C-20100719-00295, Application for consent to the transfer
of control of international Section 214 authorizations,
ITC-214-19980430-00286 and ITC-214-19970421-00220, ITC-214-19990325-00153,
ITC-214-19930101-00257, ITC-214-19960925-00468 and ITC-MOD-19970618-00335
held by Tricom USA, Inc. to AMZAK Capital Mgt., LLC (filed Jul. 19, 2010);
IBFS File No. ITC-T/C-20100719-00296, Notification of the pro forma
transfer of control of international Section 214 authorizations,
ITC-214-19980430-00286, ITC-214-19970421-00220, ITC-214-19990325-00153,
ITC-214-19930101-00257, ITC-214-19960925-00468 and ITC-MOD-19970618-00335
held by Tricom USA, Inc. from AMZAK Capital Mgt., LLC to Broadband
Investments Limited (filed Jul. 19, 2010); IBFS File No.
SCL-T/C-20100719-00014, Application for consent to transfer control of the
interest in the Americas II cable system, SCL-LIC-19980101-00036, the
MAYA-1 cable system, SCL-LIC-19990325-00006, and the Pan American cable
system, SCL-LIC-19970421-00002 held by Tricom USA, Inc. to AMZAK Capital
Mgt., LLC (filed Jul. 19, 2010); IBFS File No. SCL-T/C-20100719-00015,
Application for consent to the pro forma transfer of control of the
interest in the Americas II cable, SCL-LIC-19980429-00019, the Maya-1
cable, SCL-LIC-19990325-00006, and the Pan American cable,
SCL-LIC-19970421-00002, held by Tricom USA Inc., from AMZAK Capital Mgt.,
LLC to Broadband Investments Ltd. (filed Jul. 19, 2010).
Letter from Kimberly M. Schmid, Nat'l Sec. Div., U.S. Dept. of Justice to
Marlene H. Dortch, Secretary, Fed. Comm. Comm'n (Aug. 25, 2010).
See Notice of Removal of Domestic Section 214 Application from Streamlined
Treatment, Public Notice, WC Docket No. 10-150, 25 FCC Rcd 12506 (FCC/WCB
2010); International Authorizations Granted, Public Notice, DA No.
11-1592, Report No. TEL-01520, DA No. 11-1592 (FCC/IB Sept. 22, 2001).
Letter from Scott Fisher, Vice President and Treasurer, Tricom USA, Inc.,
to Marlene H. Dortch, Secretary, Fed. Comm. Comm'n. (Dec. 17, 2010).
Letter from Pamela S. Kane, Deputy Chief, Investigations and Hearings
Div., Enf. Bur., Fed. Comm. Comm'n, to Judith D. O'Neill, Chief Exec.
Officer, Nakhota, LLC, Counsel for Tricom USA, Inc. (Apr. 19, 2011).
Letter from Judith D. O'Neill, Chief Exec. Officer, Nakhota, LLC, Counsel
for Tricom USA, Inc., to Pamela S. Kane, Deputy Chief, Investigations and
Hearings Div., Enf. Bur., Fed. Comm. Comm'n (May 17, 2011).
Letter from Richard C. Sofield, Director, Foreign Investment Review Staff,
Nat'l Sec. Div., U.S. Dept. of Justice, to Marlene H. Dortch, Secretary,
Fed. Comm. Comm'n (Sept. 20, 2010).
Domestic Section 214 Authorization Granted: Domestic Section 214
Application Filed for the Transfer of Control of Tricom USA, Inc., Public
Notice, DA 11-1589 (FCC/WCB Sept. 21, 2001).
International Authorizations Granted, Public Notice, DA No. 11-1592,
Report No. TEL-01520 (FCC/IB Sept. 22, 2001).
See IBFS File No. SCL-MOD-20110928-00028. On September 22, 2011, Tricom
USA also filed a new STA extension request for the pending transfer of
control applications regarding Tricom USA's submarine cable landing
licenses. See IBFS File No. SCL-STA-20110922-00027.
See Non-Streamlined Submarine Cable Landing License Applications Accepted
for Filing, Public Notice, Report No. SCL-00124NS (Oct. 04, 2011).
Actions Taken Under Cable Landing License Act, Public Notice, DA No.
11-1909 (rel. Nov. 17, 2011).
Federal Communications Commission DA 11-1928___
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Federal Communications Commission DA 11-1928___