FCC 63.11 Revised as of October 1, 2014
Goto Year:2013 |
§ 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
(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
(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
(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
(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
(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
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
(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
Effective Date Note: At 79 FR 31877 , June 3, 2014, § 63.11 was amended
by revising paragraph (g)(2). This paragraph contains information
collection and recordkeeping requirements and will not become effective
until approval has been given by the Office of Management and Budget.
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