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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* DA 96-1170 Before the FEDERAL COMMUNICATION S COMMISSION Washington, D.C. 2055 4 In the Matter of ) ) HAWAII EXPRESS ) COMMUNICATIONS, L.L.C. ) ) File No. SCL-95-010 Application for a license to land and ) operate a submarine fiber optic cable ) extending between the U.S. Mainland ) and the State of Hawaii ) CABLE LANDING LICENSE Adopted: July 19, 1996 Released: July 24, 1996 By the Chief, Telecommunications Division: 1. In this Order, we grant the application of Hawaii Express Communications, L.L.C., (Hawaii Express) under the Cable Landing License Act for authority to land and operate a digital fiber optic submarine cable extending between the United States and the State of Hawaii (Hawaii Express cable system), with landing points on the west coast of the continental United States and the island of Oahu in Hawaii, on a non-common carrier basis. The proposed cable would promote the public interest by providing needed additional voice, video, and high speed data transmission capacity between the continental United States and the State of Hawaii. We find that Hawaii Express has provided sufficient information to comply with the Cable Landing License Act, and therefore grant the cable landing license, subject to the conditions listed below. APPLICATION 2. Hawaii Express is a limited liability company organized under the laws of the Commonwealth of Virginia. All of its owners and officers are U.S. citizens. The applicant proposes to land and operate the Hawaii Express cable as a non-common carrier system in which capacity would be sold or leased to users on a non-tariffed, non-common carrier basis. All of the proposed cable system's plant and equipment located in the United States would be owned by Hawaii Express. The entire cable system, including plant and equipment, would be owned by Hawaii Express. The precise landing points of the proposed cable system on the west coast of the continental United States and the island of Oahu in Hawaii have yet to be selected. Hawaii Express asserts that the landing points will be in conformity with plans approved by the Secretary of the Army. The proposed cable system is scheduled to be operational in the second quarter of 1997. 3. The proposed cable system will consist of three segments: A, B and C. Segments A and C are located in U.S. territory. Segment A is the cable landing station to be located on the Island of Oahu. Segment C is the cable landing station to be located on the west coast of the continental United States. Segment B will consist of the whole of the submarine cable system between and including the system interfaces at Segments A and C. The minimum design capacity of the proposed cable system between system interfaces will be 2,016 MIUs per fiber pair, for a total minimum design capacity of 4,032 MIUs. 4. Hawaii Express states that because it seeks to provide capacity in the proposed cable system on a non-common carrier basis and there is no public interest reason for the Commission to require the Hawaii Express facilities to be offered on a common carrier basis, its application need not be evaluated pursuant to Title II of the Communications Act of 1934. Hawaii Express thus urges the Commission to consider the application only pursuant to the Cable Landing License Act. 5. Hawaii Express also states that its proposed cable will yield significant public benefits. The proposed cable, Hawaii Express asserts, will provide needed additional international voice, data and video telecommunications services between the continental United States and the State of Hawaii with greater cost efficiency than is presently available. Hawaii Express submits that the proposed cable will result in the expansion and introduction of new and improved service offerings, including private line services, electronic document interchange services, messaging services, and broadband services. Hawaii Express also states that the proposed cable, by adding capacity and restoration capability along the United States and the Hawaii route, will enhance the quality and security of communications between the continental United States and Hawaii. COMMENTS 6. The Hawaii Express application was placed on public notice on July 14, 1996. No comments were received. 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 Hawaii Express' application. The Department of State, after coordinating with the National Telecommunications and Information Administration and the Department of Defense, stated that it has no opposition to the grant of the cable landing license. DISCUSSION 7. Hawaii Express requests a license under the Commission's private submarine cable policy to promote competition in the provision of international transmission facilities. Pursuant to this policy, the Commission has authorized non-common carrier cables where there is no legal compulsion to serve the public indifferently and where there are no reasons, implicit in the nature of the operations, to expect an indifferent holding out to the eligible user public. 8. Because of the wide availability of common carrier circuits on existing and future cables and satellite circuits between the United States and the Hawaii, there is no public interest reason to require that Hawaii Express' proposed cable facilities be provided on a common carrier basis. Also, in light of the significant demand for telecommunications facilities, we see no prospect of creating significant overcapacity by the introduction of non-common carrier facilities, so as to threaten the economic viability of existing common carrier cable or satellite facilities. Thus, there is no reason to require Hawaii Express to operate the proposed systems on a common carrier basis. 9. In addition, since Hawaii Express will make "individualized decisions, whether and on what terms to deal" and do not undertake to "carry for all people indifferently," there is no reason to expect that the proposed cable circuits would be held out to the public by Hawaii Express indifferently. We thus conclude that Hawaii Express will not in fact offer capacity in the Hawaii Express cable system to the public on a common carrier basis, and thus is not subject to regulation under Title II of the Communications Act. 10. Consistent with prior decisions, we find that Hawaii Express' descriptions that the proposed cable will land in west coast of the continental United States and the island of Oahu in Hawaii to be sufficient to determine whether the proposed cable would comply with the provisions of the Cable Landing License Act and Commission rules. In the Section 214 Streamlining Order, the Commission reduced the amount of information required in cable landing license applications. Specifically, the Section 214 Streamlining Order permits applicants in their initial applications to provide a general geographic description of the landing points. It requires that grant of cable landing license applications be conditioned on final approval of a specific description of landing points no later than ninety days prior to construction. The Commission will give public notice of this description, and grant of the license will be considered final unless we issue a public notice to the contrary no later than sixty days after receipt of the specific description of the landing points. 11. Based on the information provided by Hawaii Express, we conclude that the grant of the requested authorizations will not have a significant effect on the environment as defined in Section 1.1307 of the Commission's rules and regulations implementing the National Environmental Policy Act of 1969. Consequently, no environmental assessment is required to be submitted with these applications under Section 1.1311 of the Commission's rules. 12. Accordingly, we conclude that U.S. interests under the Cable Landing License Act will be served by grant of the license to Hawaii Express, as conditioned below. ORDERING CLAUSES 13. Consistent with the foregoing, the Bureau hereby GRANTS AND ISSUES, under the provisions of the Cable Landing License Act and Executive Order 10530, Hawaii Express Communications, L.L.C., a license to land and operate a high-capacity fiber optic digital submarine cable (with two fiber pairs operating at a minimum 5 Gbps per fiber pair) extending between the mainland united States and the State of Hawaii, with landing points in the west coast of the continental United States and the island of Oahu in Hawaii. 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: (1) The location of the cable within the territorial waters of the United States of America, 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; (2) The Licensee shall at all times comply with any requirements of United States government authorities regarding the location and concealment of the cable facilities, buildings, and apparatus with a view of protecting and safeguarding the cable from injury or destruction by enemies of the United States of America; (3) The Licensee or any persons or companies directly or indirectly controlling it or 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 possessions, to land, connect or operate cables or landlines, to construct or operate radio stations, or to interchange traffic, which is denied to any other United States carrier by reason of any concession, contract, understanding, or working arrangement to which the Licensee or any persons controlling it or controlled by it are parties; (4) 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 Federal Communications Commission shall give prior consent in writing; (5) The Licensee shall notify the Commission in writing of the precise locations at which the cables will land no less than ninety days prior to commencing construction of cable landing stations at those locations. The Commission will give public notice of the filing of these descriptions, and grant of this license will be considered final unless the Commission issues a notice to the contrary no later than sixty days after receipt of the specific descriptions of landing points; (6) The Commission reserves the right to require the Licensee to file an environmental impact statement should it determine that the landing of the cable at those locations and construction of necessary cable landing stations would have a significant impact upon the environment within the meaning of Sections 1.1305-1.1307 of the Commission's rules and regulations implementing the National Environmental Policy Act of 1969, 42 U.S.C. Sections 4321-4335; this license is subject to modification by the Commission upon its review of any environmental impact statement that it may require pursuant to its rules; (7) The Licensee shall maintain no less than a 50 percent ownership interest and voting control share in the proposed cable, including 100 percent ownership in the cable station in the United States and in the U.S. land portion of the cable from the station to the U.S. beach joint of the submersible portion of the proposed cable; (8) The Licensee shall, by application, obtain Commission approval prior to the sale or transfer to a foreign entity of five percent or more in the aggregate of U.S.-owned and -controlled stock; (9) The license is revocable after due notice and opportunity for hearing by the Commission in the event of breach or nonfulfillment of any requirements specified in Section 2 of "An Act Relating to the Landing and Operation of Submarine Cables in the United States," 47 U.S.C. Sections 34-39, or for failure to comply with the terms of the authorizations; (10) The Licensee shall notify the Commission in writing of the date on which the cable is placed in service and the license shall expire 25 years from such date, unless renewed or extended upon proper application, and, upon expiration of the license, all rights granted under it shall be terminated; and (11) 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. 14. 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 Diane J. Cornell Telecommunications Division International Bureau