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Do you wish to overwrite it? >Heading 1Centered Headingcal Style 4G Y * Ã  Bullet ListIndented Bullet List*M0 Y XX` ` (#` a3IndentedLeft-indented textHP ? ` ` 1. a4IndentedLeft-indented text Qp- ? ` `  a.` '2B!?"@#AA$Ba5IndentedLeft-indented text![ܽ ? ` `  '(1) hh-a6IndentedLeft-indented text"dK ? ` `  'hh-(a)4a7IndentedLeft-indented text#l݇ ? ` `  'hh-4i)h:a8IndentedLeft-indented text$u-b ? ` `  'hh-4:a)ppA2E%OC&qSD'qD(q5Eheader4 %l4 <D!#FxX  Pg9CXP#a2InterrogatoroDStarts with A. at margin, 1 at first indentk*<&KLa3InterrogatoroDStarts with A. at margin, 1 at first indentk*<'MNa4InterrogatoroDStarts with A. at margin, 1 at first indentk*<(OP2G)qE*qIF+qF,q+Ga5InterrogatoroDStarts with A. at margin, 1 at first indentk*<)QRa6InterrogatoroDStarts with A. at margin, 1 at first indentk*<*STa7InterrogatoroDStarts with A. at margin, 1 at first indentk*<+UVa8InterrogatoroDStarts with A. at margin, 1 at first indentk*<,WX2J-G.|H/I0Ia1Right ParRight-Aligned Paragraph Numbers-N<S S'@`}I. \X(# a2for ordersenter, tab, parnum, two spaces.F\L0  S'X` ` A. a1DocumentgDocument Style Style/\s0  zN8F I. ׃  a1TechnicalTechnical Document Style0F!<  ?  I.   21J2slKKa1IndentedLeft-indented text16n ? I.Xa1InterrogatoresStarts with A. at margin, 1 at first indent2UZZI. X-L> X-  #&I\  P6Qu&P#Federal Communications Commission`(#DA 98331 ă  yxdddy  S-`(#(#X ăL   0Before the w Federal Communications Commission Washington, D.C. 20554  X-  X-In the Matter of  XXhhX@Xh)(# x` `  ` hh@h)(#  X_-Swisscom North America, Inc.hh@h)ppFile No. ITC97322 x` `  hh@h)  X1-Application for authority pursuant to Section 214hh)(#  X -of the Communications Act of 1934, as amended,h)  X -to acquire and operate facilities to provide@h)  X -international service and to resell switched and h)  X -noninterconnected private line services betweenh)pp  X -the United States and Switzerlandhh@h)  Xy-  MEMORANDUM OPINION, ORDER AND CERTIFICATE T  XK-TPx Adopted:  February 19, 1998@XhXpp Released:   February 20, 1998(#p By the Chief, Telecommunications Division:  X-G$ I. Introduction ă  X-x1.` ` In this Order, we grant Swisscom North America, Inc. ("Swisscom") authority  X-pursuant to Section 214 of the Communications Act of 1934, as amended,`! yO#-ԍXx47 U.S.C.  214, as amended ("Act").(#` to: (1) acquire and operate facilities for the provision of international switched and private line services between the United States and Switzerland; and (2) resell international switched and noninterconnected private line services between the United States and Switzerland. We also find that Swisscom should be regulated as dominant on the U.S.Switzerland route.  X - II. Background and Pleadings ă  X-x2.` ` Swisscom, a Delaware corporation, is a whollyowned subsidiary of Swiss Telecom PTT ("Swiss Telecom"), which is whollyowned by the Government of Switzerland. Swiss Telecom is the primary provider of telecommunications services in Switzerland.  X"-x3.` ` Swisscom has authority to operate as a facilitiesbased and resale carrier to all""X0*''II!"  X-points except Switzerland, Hungary, Germany, India, and Malaysia.z {Oy-ԍXxOverseas Common Carrier Section 214 Applications Actions Taken, Public Notice, Report No. I8253, DA 971571 (July 24, 1997).(#Ƽ In addition, Swisscom holds an equity interest of up to 33.33 percent in Unisource N.V., whose whollyowned subsidiary, Unisource USA, Inc., has Section 214 authority to operate as a facilitiesbased and  X-resale carrier to various countries."z {O-ԍXxSee Overseas Common Carrier Section 214 Applications Actions Taken, Public Notice, 12 FCC Rcd  {OX-8368 (1997); Overseas Common Carrier Section 214 Applications Actions Taken, Public Notice, Report  {O" -No. I8250, DA 971401 (July 3, 1997); Unisource USA, Inc., Order, Authorization and Certificate, File No. ITC 97470, DA 98191 (rel. Feb. 3, 1998). Unisource USA, Inc. also has one pending Section 214  {O -application. See NonStreamlined International Section 214 and Cable Landing License Applications  {O~ -Accepted for Filing (Formal Section 63.18 and 1.767), Public Notice, Report No. TEL125B (Jan. 9, 1998).(#  X-x4.` ` On June 9, 1997, Swisscom filed an application to obtain Section 214 authority to provide international facilitiesbased and resale services between the United States and Switzerland. This authority would allow Swisscom to provide "full" circuits on the U.S.Switzerland route, enabling it to provide "endtoend" service to end users in both countries. This authority would also allow Swisscom to resell both switched and noninterconnected private line services provided by unaffiliated U.S. carriers. Swisscom certifies that it is  X -affiliated within the meaning of Section 63.18(h)(1)(i) of the Commission's RulesW l z yO -ԍXx47 C.F.R.  63.18(h)(1)(i).(#W with Swiss Telecom in Switzerland, CNS in Germany, Mutiara Telecom in Malaysia, Aircel Digilink in  X -India, and JszTel in Hungary.] z yO-ԍXxSwisscom Application at Appendix II.(#]  X -x5.` ` We placed Swisscom's application on public notice.  z yO-ԍXxNonStreamlined International Section 214 and Cable Landing License Applications Accepted for Filing  {O-(Formal Section 63.18 and 1.767), Public Notice, Report No. TEL89B (June 18, 1997).(#  AT&T Corp. ("AT&T") and MCI Telecommunications Corporation ("MCI") filed petitions to deny. Sprint Communications Company, L.P. ("Sprint") filed a petition to deny or hold in abeyance and  Xb-WorldCom, Inc. ("WorldCom") filed a petition to defer in part. bz yO -ԍXxWorldCom does not oppose the grant of Swisscom's application to the extent that Swisscom seeks authorization to resell noninterconnected private lines of unaffiliated carriers to provide U.S. international services. Worldcom notes that U.S.based carriers may provide similar services in Switzerland. WorldCom Petition at n.1.(#Ƃ Swisscom filed an opposition to petitions to deny or defer to which AT&T, MCI, and Sprint replied. In"K0*%%IIg" addition, Global One and the Federal Office for Communications ("OFCOM"), the Swiss  X-regulator, filed letters.  X-]# III. Discussion ă  X-x6.` ` On February 15, 1997, 69 nations, including the United States and most of its major trading partners, committed to open their markets for basic telecommunications services by concluding the World Trade Organization ("WTO") Basic Telecommunications  XH-Agreement.XHz yO -ԍXxThe results of the WTO basic telecommunications services negotiations are incorporated into the General Agreement on Trade and Services ("GATS") by the Fourth Protocol to the GATS, April 30, 1996, 36 I.L.M. 366 (1997).(# On June 4, 1997, five days before Swisscom filed its application, the  X1-Commission issued a Notice of Proposed Rulemaking in the Foreign Participation proceeding to create a new regulatory framework in light of the United States' WTO market access  X -commitments and the marketopening commitments of U.S. trading partners.? ^ z {O-ԍXxRules and Policies on Foreign Participation in the U.S. Telecommunications Market, Order and Notice  {Oh-of Proposed Rulemaking, IB Docket No. 97142, FCC 97195 (rel. June 4, 1997) ("Foreign  {O2-Participation Notice").(#? On November 26, 1997, after the end of the pleading cycle in the instant proceeding, the Commission  X -adopted final rules in the Foreign Participation proceeding. These rules modify our public  X -interest analysis of applications for international Section 214 authorization. \ z yO-ԍXxRules and Policies on Foreign Participation in the U.S. Telecommunications Market, Market Entry and  {OI-Regulation of ForeignAffiliated Entities, Report and Order and Order on Reconsideration, IB Docket  {O-Nos. 97142, 9522, FCC No. 37398 (rel. Nov. 26, 1997) ("Foreign Participation Order").(#ƍ  X-x7.` ` It is well established that the Commission may apply new rules and policies to  X}-pending matters. }2 z {O`-ԍXxSee Sprint Corporation, Declaratory Ruling and Order, 11 FCC Rcd 1850,  34 (1996) (footnote omitted).(#Ʈ The Commission also stated specifically in the Foreign Participation  Xh-Order that it would apply the new rules to all applications pending before the Commission in  XS-any procedural posture at the time they become effective. S z {O-ԍXxForeign Participation Order at  329. See also Public Notice, DA 972629, rel. Dec. 18, 1997; Foreign  {OZ -Participation Notice at  44.(# We see no reason why our newly adopted rules and policies should not apply to this application. Accordingly, we will evaluate  X%-Swisscom's application under the standard adopted in the Foreign Participation Order.  X-x8.` ` In the Foreign Participation Order, the Commission concluded that applicants seeking to serve WTO Member countries no longer need to demonstrate that the destination" 0*%%II" markets offer effective competitive opportunities ("ECO") in order to obtain Section 214  X-authority.k z yOb-ԍXxWe note that Switzerland is a WTO Member country. (#k Rather, the Commission adopted a rebuttable presumption that applications for Section 214 authority to serve WTO Member countries do not pose concerns that would justify denial of an application on competition grounds. In adopting the presumption, the Commission found that it could rely on its competitive safeguards instead of an ECO analysis to address concerns of anticompetitive behavior by a foreign carrier with market power. Thus, absent serious concerns raised by the Executive Branch regarding national security, law enforcement, foreign policy, or trade issues or, in the exceptional case where a carrier's entry presents a very high risk to competitionVERY HIGH in the U.S. market, we will expeditiously grant  X1-Section 214 applications of carriers serving WTO Member countries.n\1Xz {O: -ԍXxForeign Participation Order at  51 ("in the exceptional case where an application poses a very high risk to competition in the U.S. market, where our safeguards and conditions would be ineffective, we  {O -reserve the right to deny an application"). See also id.  69.(#n  X -x9.` ` The Executive Branch did not raise any concerns with this application. Also, we find that none of the arguments raised by parties in this proceeding demonstrate that Swisscom's entry into the U.S. market presents a very high risk to competition in the U.S. market. The petitioning parties argue that the Swiss market is legally closed and therefore  X -fails the Commission's ECO test. |z {O-ԍXxSee, e.g., AT&T Petition at 2, Reply at 3; MCI Petition at 34; Sprint Petition at 3, Reply at 3; WorldCom Petition at 2 (arguing that the Swiss law that would provide for full competition in all telecommunications services is not effective until January 1, 1998); AT&T Reply Comments at 3; MCI Petition at 34; Sprint Petition at 4; WorldCom Petition at 2 (arguing that detailed regulations to implement the new law had not been adopted). AT&T and Sprint also argue that a referendum could be passed that could alter the new law. AT&T Petition at 3; Sprint Petition at 34.(# We note that a new law went into effect on January 1,  X-1998 that provides for full competition in all telecommunications services.e z yO7-ԍXxWe also note that no referendum was passed. (#e Parties also  Xy-argue that there are practical or de facto barriers to entry. For example, parties argue there are a number of problems and uncertainties with: (1) Switzerland's interconnection and  XM-licensing regimes;DXM z {O-ԍXxMCI Petition at 4; Sprint Petition at 45; WorldCom Petition at 4; AT&T Reply at 4. See also Letter from Richard Dent, Managing Director, Global One Communications SA to Troy Tanner, Chief, Policies and Facilities Branch, Telecommunications Division, International Bureau, FCC (July 15, 1997) (stating that the process of interconnection negotiations between Global One and Swiss Telecom have  {O"-been "unsatisfactory.") See also AT&T Petition at 3; MCI Petition at 4; Sprint Petition at 4, Reply at 3  yOp#-(arguing that no licenses have been issued under the new law; and that competition will not exist in Switzerland until at least mid or late 1998). WorldCom also argues that Swisscom's Section 214 authorization should be deferred until: (1) final interconnection regulations are effective; (2) Swiss"%0*%%Q%" Telecom has entered into interconnection agreements with new licensees; and (3) permanent licenses have been issued in Switzerland to U.S. carriers for all telecommunications services and infrastructure construction. WorldCom Petition at 5.(#Ʋ and (2) the new Swiss regulator.Mz {O-ԍXxMCI Reply at 5; Sprint Petition at 5; AT&T Reply at 3. See also MCI Petition at 5, Reply at 4 (arguing that because the Swiss Government intends to privatize Swiss Telecom, it has the incentive to limit competition until partial privatization occurs to ensure that the value of the privatized shares will not be reduced and that these actions will negatively affect the independence of the telecommunications regulator).(#"M0*%%II+"Ԍ X-ԙx 10.` ` The arguments made by the petitioners address the issue of whether a foreign market offers U.S. carriers effective competitive opportunities. Petitioners have not demonstrated, however, that Swisscom's entry into the U.S. market raises a very high risk to competition in the U.S. market. In particular, petitioners have not made the required showing that the Commission's safeguards would be ineffective at preventing anticompetitive conduct  X-by Swiss Telecom in this particular context and that as a result Swiss Telecom would be able to raise the costs of unaffiliated U.S. carriers to the degree that enduser customers would be  Xa-injured.faz {O-ԍXxForeign Participation Order at  51.(#f Sprint also argues that Swisscom has offered no reasons why the U.S. public  XJ-interest would be served by a grant of its application.KJ, z yO'-ԍXxSprint Reply at 4.(#K The Commission specifically found in  X3-the Foreign Participation Order, however, that entry by foreign suppliers of  X -telecommunications services would have significant benefits for U.S. consumers.f z {O-ԍXxForeign Participation Order at  10.(#f  X -x 11.` ` We do find that Swisscom, because of its affiliation with Swiss Telecom, has  X -sufficient market power to affect competition adversely in the U.S. market under our rules.[ N z {O-ԍXxSee 47 C.F.R.  63.10(a).(#[ Accordingly, we will regulate Swisscom as dominant on the U.S.Switzerland route. As a dominant carrier on the U.S.Switzerland route, Swisscom must comply with the dominant carrier safeguards set forth in Section 63.10(c)(3) of the Commission's rules as well as the  X}-Commission's generally applicable safeguards for U.S. international carriers.}z {O -ԍXxForeign Participation Order at  215292;  150176 and Appendix C,  63.10(c) (to be codified at 47 C.F.R.  63.10(c)).(# Swisscom is also subject to the Section 43.61(c) requirements to file quarterly reports of its switched resale"f:0*%%IIh"  X-services. z {Oy-ԍXxForeign Participation Order at  207212 and Appendix C,  43.61(c) (to be codified at 47 C.F.R.   {OC-43.61(c)). In the Foreign Participation Order, the Commission adopted a quarterly traffic and revenue reporting requirement for switched resellers on international routes where they are affiliated with a foreign carrier that possesses sufficient market power on the foreign end of the route to harm competition in the U.S. market and that collects settlement payments from U.S. carriers. The Commission adopted the requirement to enable it to detect whether affiliated resellers are engaging in  {O--traffic distortion schemes on affiliated routes. Id. at  211. Section 63.10(c) also requires Swisscom, as a dominant carrier on the U.S.Switzerland route, to file quarterly traffic and revenue reports for all  {O-services authorized in this order. See 47 C.F.R.  63.10(c)(3).(#  We also emphasize that no U.S. carrier may agree to accept special concessions  X-from Swiss Telecom on the U.S.Switzerland route.z {O: -ԍXxSee Foreign Participation Order  150!170; 47 C.F.R.  63.14.(#Ə  X-x 12.` ` We note that petitioners also make a number of arguments with regard to Swiss Telecom's accounting rate. Sprint argues that allowing Swisscom the ability to selfcorrespond would allow Swisscom to convert Swiss Telecom's accounting rate, which is a real cost to Swisscom's U.S. competitors, into an internal transfer payment. Sprint argues that  X_-this competitive problem is exacerbated because of Swiss Telecom's high accounting rate.\_2 z yOB-ԍXxSprint Petition at 68, Reply at 5.(#\ AT&T argues that Swiss Telecom should be required to provide U.S. competitors with "cost X1-based" interconnection to its bottleneck facilities (i.e., a costbased accounting rate).L1 z yO-ԍXxAT&T Petition at 7.(#L Among other things, AT&T argues that Swisscom could use the abovecost settlement rate to facilitate  X -a "price squeeze" that could harm consumers in the United States. R z {O-ԍXxAT&T Petition at 912, Reply at 68. See also MCI Petition at 67 (arguing that Swiss Telecom has not reduced its accounting rate to a level that would significantly reduce the risks of competitive distortion). (#  X -x 13.` ` In the Benchmarks Order,|\ z {O4-ԍXxInternational Settlement Rates, Report and Order, IB Docket 96261, FCC 97280 at  231 (rel. Aug.  {O-18, 1997) ("Benchmarks Order"), recon. pending, appeal filed, Cable & Wireless et al, v. FCC, No. 97 yO-1612 (D.C. Cir. filed Sept. 26, 1997).(#| the Commission adopted a benchmark settlement  X -rate condition,  z yOC!-ԍXxThe settlement rate refers to each carrier's portion of the accounting rate. In almost all cases, the settlement rate is equal to onehalf of the negotiated accounting rate. At settlement, each carrier nets the minutes of service it billed against the minutes the other carrier billed. The carrier that billed more minutes of service pays the other carrier a net settlement payment calculated by multiplying the settlement rate by the number of imbalanced minutes.(#  effective January 1, 1998, for authorizations to provide facilitiesbased" 0*%%II " switched or private line services to destination markets where the authorized carrier is  X-affiliated with a foreign carrier. Pursuant to the Benchmarks Order, we condition any authorization to provide facilitiesbased switched or private line service to an affiliated market on the affiliated carrier having in effect a settlement rate with its U.S. correspondents that is  X-at or below the relevant benchmark settlement rate adopted in that order.z {O-ԍXxBenchmarks Order at  231. (#Ƃ The benchmark settlement rate is $0.15; the current settlement rate for Switzerland is $0.17. Thus, before Swisscom may provide facilitiesbased service between the United States and Switzerland, Swiss Telecom's settlement rate with U.S. international carriers must be at or below U.S.  XJ-$0.15. The benchmark condition does not apply to authorizations to resell switched or non X3-interconnected private line services on affiliated routes. 3Zz {O> -ԍXxSee Foreign Participation Order at  211. (# Thus, in providing these resale services to Switzerland, Swisscom will not be subject to a benchmark condition.  X -*  IV. Ordering Clauses  X - x 14.` ` Accordingly, IT IS HEREBY CERTIFIED that the present and future public convenience and necessity require a grant of the present application, and IT IS HEREBY ORDERED that application File No. 97322 is GRANTED and Swisscom is authorized to: (1) provide facilitiesbased services between the United States and Switzerland at such time as Swiss Telecom's settlement rate with its U.S. carrier correspondents is at or below U.S. $0.15; (2) resell international private lines not interconnected to the public switched network for the provision of private line services between the United States and Switzerland; and (3) provide international switched resale between the United States and Switzerland.  X-x15.` ` IT IS FURTHER ORDERED that Swisscom shall be regulated as a dominant carrier on the U.S.Switzerland route, pursuant to Section 214 of the Act, 47 U.S.C.  214  X-and Section 63.10 of the Commission's Rules and shall comply with the requirements of paragraph (c) of that section and with the requirements of Section 43.61(c).  X~-x16.` ` IT IS FURTHER ORDERED that Swisscom may not agree to accept special concessions from Swiss Telecom on the U.S.Switzerland route. "Special concessions" is defined in Section 63.14(b) of the Commission's rules as amended by the Commission's  X9-Foreign Participation Order, FCC 97398.  X -x17.` ` IT IS FURTHER ORDERED that Swisscom shall comply with Sections 43.82, 63.19, 63.21 and 63.15(b) and with all other relevant Commission rules and policies.  X -x18.` ` IT IS FURTHER ORDERED that Swisscom may not and Swisscom's tariffs"  0*%%II" must state that its customers may not connect their private lines to the public switched network at either the U.S. or foreign end, or both, for the provision of international switched  X-basic services, unless the Commission has authorized the provision of such service. See 47  X-C.F.R.  63.18(e)(2)(ii)(c), (e)(3)(4); 63.21(a).  X-x19.` ` IT IS FURTHER ORDERED THAT AT&T's, MCI's, Sprint's, and WorldCom's Petitions to Deny, Hold in Abeyance or Defer in Part ARE DENIED.  XJ-x20.` ` This Order is issued under Section 0.261 of the Commission's Rules, 47 C.F.R.  0.261 (1996), and is effective upon adoption. Petitions for reconsideration under Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106, or applications for review under Section 1.115 of the Commission's Rules, 47 C.F.R.  1.115, may be filed within 30 days of the  X -public notice of this Memorandum Opinion, Order and Certificate (see 47 C.F.R.  1.4(b)(2)). x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhDiane J. Cornell x` `  hhChief, Telecommunications Division x` `  hhInternational Bureau