PUBLIC NOTICE Federal Communications Commission 1919 M St., N.W. Washington, D.C. 20554 DA 96-964 Report No. I-8181 June 18, 1996 Co mmencement of Streamlined Section 214 Procedures and Tariff Re quirements The Office of Management and Budget ("OMB") has approved the Commission's new procedures for the international Section 214 authorization process and tariff requirements, effective June 13, 1996. These new procedures were adopted in the Report and Order, Streamlining the International Section 214 Authorization Process and Tariff Requirements, IB Docket No. 95-118, FCC 96-79 (rel. March 13, 1996) ("Streamlining Order"). Applicants should review the new streamlined procedures for international Section 214 and cable landing authorizations and relaxed form and content requirements for international tariffs. The new rule permitting non-dominant carriers to file international tariffs on one day's notice became effective May 9th. These new procedures eliminate unnecessary and outdated regulatory barriers to competition and provide carriers greater flexibility in participating in the international telecommunications market. The Commission has received numerous inquiries about the new procedures. The following questions and answers provide guidance to carriers and other parties filing international Section 214 and cable landing license applications and international tariffs. 1. What is a global Section 214 authorization for the provision of international facilities-based services? A facilities-based global Section 214 authorization enables carriers to provide, on a facilities basis, international basic switched, private line, data, television and business services using authorized facilities to virtually all countries in the world. Section 63.18 sets forth the information applicants are required to provide in their Section 214 applications to obtain a facilities-based global Section 214 authorization. Section 63.18(e)(1) sets forth the relevant terms and conditions of a facilities-based global Section 214 authorization, including the restrictions imposed on such authorizations. These restrictions are explained in response to Question 2 below. 2. Are there facility or country restrictions on the facilities-based global Section 214 authorizations? Yes. We will publish an exclusion list identifying any restrictions on providing service using particular facilities or to particular countries. The global Section 214 authorization will permit facilities-based carriers to use half-circuits on all U.S. common and non-common carrier facilities, whether previously or subsequently authorized by the Commission, provided these facilities do not appear on the exclusion list. It also will permit carriers to use any necessary overseas connecting facilities. The global authorization includes both common carrier and non- common carrier submarine cables landing in the United States, INTELSAT satellites, U.S. non-common carrier satellites, and the U.S. earth stations licensed by the Commission to communicate with these satellites. Carriers may not use non-U.S. licensed facilities, except for foreign connecting facilities, unless and until the Commission specifically approves their use and so indicates on the exclusion list, and then only for service to the countries specified. The Commission will include any necessary conditions in the exclusion list. If an applicant requests to use U.S. facilities that the Commission has not yet authorized, the applicant will have to file a separate Section 214 application. For example, we still require that proposed owners of new common carrier submarine cable systems obtain separate Section 214 authority to construct and operate the systems. The exclusion list will also specify any countries for which there are service restrictions. For example, because of State Department requirements, the Commission has special procedures for filing applications to serve Cuba. Carriers seeking to use facilities or serve countries on the exclusion list should file for Section 214 approval pursuant to Section 63.18(e)(6). 3. Where is the exclusion list and is it subject to change? We will include the exclusion list as part of each public notice listing granted streamlined applications and maintain a copy of the list in the International Reference Center. The Commission will place on public notice shortly a proposed initial exclusion list. The exclusion list will be subject to change over time. Before amending the exclusion list, the Commission will first issue a public notice giving affected parties the opportunity for comment and hearing on the proposed changes. The Commission will then release an order amending the exclusion list. The list also is subject to change upon issuance of an Executive Order. The exclusion list included with the most recent public notice listing granted streamlined applications will apply to all carriers that have previously received global Section 214 authority under Section 63.18, whether by streamlined grant or specific written order. In addition, the facilities excluded from use by the exclusion list shall not be used by U.S. carriers authorized under Section 63.01 of the Commission's rules, unless the carrier's Section 214 authorization specifically lists the facility. 4. Can I apply for a facilities-based global Section 214 authorization even though I have affiliations with foreign carriers? Yes. Facilities-based global Section 214 authority is available to all carriers, but only to the extent they qualify for nondominant carrier regulation under Section 63.10 of the rules. In circumstances where an applicant is affiliated with one or more facilities-based foreign carriers and we have not made a determination that the affiliated foreign carriers lack market power, the applicant should request limited global authority to serve destination countries where the carrier is either not affiliated with a facilities-based carrier or we have previously determined that an affiliate in that country lacks market power. The applicant must seek specific Section 214 authority under Section 63.18(e)(6) to serve all other destination countries. Applications filed under Section 63.18(e)(6) should be filed separately from applications for limited global authority. This will ensure that the application for global authority is processed under our streamlined grant procedures. The streamlined grant procedures are explained in response to Questions 10, 11, 12 and 13 below. 5. Does a global Section 214 authorization permit me to acquire as many circuits as I need to provide my authorized facilities-based services? Carriers receiving a facilities-based global authorization may add as many authorized U.S. half-circuits as needed to provide their authorized services, provided the facilities do not appear on the exclusion list. One exception is unless the Commission imposes dominant carrier regulation on a carrier for a particular U.S. international route because of the acquisition of an affiliation or alliance with a foreign carrier with market power. In such a case, the U.S. carrier must seek specific Section 214 approval to add circuits on the route for which it is regulated as dominant. For all other routes, the carrier is required only to file annual circuit status reports pursuant to Section 43.82 of the rules. 6. If I already have facilities-based Section 214 authority for all the countries and services that I need, do I have to reapply for global authority before I can use all authorized facilities permitted to be used by carriers that have global authorization? Carriers will obtain maximum flexibility if they apply for global authority. Only carriers with global authority can use non-U.S. licensed systems approved for use and listed as such in the exclusion list without separately applying for Section 214 authority. See Section 63.15 of the rules, as amended. Carriers authorized under the old rules, however, may add as many circuits as needed in U.S.-licensed facilities -- whether common carrier or non-common carrier facilities -- on authorized routes for which they are regulated as nondominant. The Streamlining Order eliminated the provision in Section 63.15 of the rules that required nondominant carriers to obtain separate Section 214 approval to add circuits on U.S. non-common carrier facilities. 7. What is a global Section 214 authorization for the provision of international service on a resale basis? A global resale authorization enables carriers to provide, on a resale basis, international basic switched, private line, data, television, and business services by reselling the services of virtually any authorized U.S. international common carrier subject to certain exceptions. First, a carrier may not resell the services of an affiliated facilities-based U.S. carrier on a route for which the affiliate is regulated as dominant without obtaining specific Section 214 approval. Second, carriers seeking to resell international private lines to provide switched basic service are limited to establishing private lines between the United States and those countries the Commission has determined offer equivalent resale opportunities to U.S. carriers. Commission equivalency orders for particular countries may contain conditions that apply to all carriers that establish private lines to those countries for the provision of switched basic service. These conditions will also be included in our public notice granting streamlined applications. Third, in circumstances where a U.S. carrier is affiliated with a facilities-based foreign carrier in a destination country and the Commission has not determined that the foreign carrier lacks market power in that country, the carrier must obtain specific Section 214 approval to resell private lines between the United States and that country for the provision of switched services. 8. Which countries has the Commission determined offer equivalent private line resale opportunities? Currently, we have designated the United Kingdom, Canada and Sweden as offering equivalent private line resale opportunities. We have found that Germany and France do not offer equivalent resale opportunities. We are considering pending applications for equivalency determinations for New Zealand, Australia, Finland, Denmark, and Chile. 9. If I received authorization under Section 63.01 to resell switched and private lines services of certain U.S. carriers, should I reapply for global authority? Not necessarily. The new rules automatically permit any authorized reseller of switched or private line services to resell the switched or private line services of any authorized U.S. international common carrier subject to the same exceptions explained in response to Question 7 above. Carriers that seek to increase the number of countries to which they resell noninterconnected private lines, however, should file for global resale authority. A reseller of switched services need not reapply, unless its switched resale authorization was restricted to providing service to particular countries. 10. Is everyone eligible for streamlined processing of their global Section 214 authorization? In most circumstances, yes. In order to be eligible for streamlined processing of its global Section 214 application, an applicant should limit its request for global authority to those destination countries where the applicant is not affiliated with a facilities-based foreign carrier and countries for which we have previously determined that an affiliated facilities-based foreign carrier lacks market power. As explained in response to Question 4 above, an applicant that is affiliated with a facilities-based foreign carrier should specifically tailor its application to request limited global authority to serve destination countries where the carrier does not have such an affiliation or for which we have previously determined that the foreign carrier affiliate does not possess market power. The applicant must seek specific Section 214 authority under Section 63.18(e)(6) to serve all other destination countries. Applicants seeking to resell the services of an affiliated U.S. facilities-based carrier to a destination country for which the affiliated U.S. carrier is regulated as dominant also must seek specific Section 214 authority under Section 63.18(e)(6) to serve that destination country and should not include that country in its request for global authority. Similarly, applicants seeking to demonstrate that a new destination country provides U.S. carriers with equivalent private line resale opportunities should apply separately under Section 63.18(e)(6). The streamlined grant procedures contained in Section 63.12 of the rules generally will not apply to applications filed under Section 63.18(e)(6). They also will not apply in circumstances where an application is formally opposed or the Commission informs the applicant in writing, including by public notice, within 28 days after the date of public notice accepting the application for filing, that the application is not eligible for streamlined processing. Such applications will be acted upon by written order. 11. What is the Commission's procedure for processing an application? Once the Commission reviews an application to determine eligibility for streamlined processing, the Commission will place the application on public notice as accepted for filing, and state whether it will be streamlined or not. Petitions to deny a streamlined application must be filed within 21 days of the date of the public notice. If a streamlined application is unopposed, it will be deemed granted 35 days after the date of the initial public notice of acceptance for filing, and the applicant may commence operations on the 36th day. Shortly after a streamlined application has been granted, we will issue a second public notice that will be published in the FCC Record and will serve as the applicant's Section 214 authorization. The second public notice will list the application as granted and restrictions, if any, on providing service to particular countries and on the use of certain facilities. 12. How do the new streamlined processing procedures differ from the old procedures? Under the new streamlined processing rules, facilities-based applications that meet our requirements for streamlined processing will be eligible for this faster method of granting applications which, under the old rules, applied only to resale applications. All applications eligible for streamlined processing under the new rules will be processed in 35 days, rather than the 45 days specified in the old rules. Streamlined applicants will be able to commence operations on the 36th day after the date of public notice listing the application as eligible for streamlined processing unless the Commission notifies the applicant within 28 days that the application has been removed from streamlined processing. Applicants may file their tariffs on the 35th day to be effective on the 36th day under the rule for nondominant carriers that permits such tariffs to become effective on not less than one day's notice. 13. Have the pleading cycles changed for petitions to deny and comments on international Section 214 applications? Yes. We have reduced the period for filing petitions to deny or comments from 30 to 28 days for non-streamlined applications and from 30 to 21 days for streamlined applications. The applicant may file a response or an opposition to any petition or comments within 14 days after the original pleading is filed. The petitioner or commenter may reply within seven days after the time for filing oppositions has expired. 14. If my Section 214 application is pending, will the Commission process my application under the old or the new rules? The old rules. 15. Do I apply for an international Section 214 authorization under Section 63.01? No. Section 63.01 only applies to domestic authorizations. We created a new Section 63.18 for international Section 214 authorizations. 16. Can I submit one application to obtain both a facilities-based and resale global Section 214 authorization? Yes. 17. Do I need to notify the Commission of foreign affiliations acquired after I have received Section 214 authorization? Yes. Any time an already-authorized U.S. international carrier acquires an affiliation with a foreign carrier within the meaning of Section 63.18(h)(1)(i)(A), the U.S. carrier must notify the Commission within thirty days of the acquisition of the affiliation. Applicants should review carefully Section 63.11 of the rules and Section 63.18(h) for information required to be filed with respect to affiliations and other ownership interests in or by foreign carriers. Section 63.11 of the rules requires, among other things, that authorized U.S. international carriers that know of a planned investment by a foreign carrier of a ten percent or greater interest, whether, direct or indirect, in the capital stock of the authorized carrier shall notify the Commission within sixty days prior to the acquisition of such interest. Carriers should calculate such ten percent ownership interests in the same manner as affiliations are calculated under the first clause of Section 63.01(h)(1)(i)(B), substituting "ten percent" for the "greater than 25 percent" ownership interest specified in that clause. That is, carriers should report: "A 10 percent ownership of capital stock, or controlling interest at any level, in the applicant by a foreign carrier, or by any entity that directly or indirectly controls or is controlled by a foreign carrier, or that is under direct or indirect common control with a foreign carrier." 18. After granting carriers an initial global authorization, how does the Commission monitor their activities? Carriers must submit annual traffic reports under Section 43.61 of the rules, and circuit status and addition reports (Section 43.82 and 63.15(b), respectively). They also have been required to file semi-annual traffic reports, for a three-year period after an initial finding of equivalent resale opportunities, for routes where they resell private lines to provide switched basic service. They must file tariffs or contracts for any services they offer, as well as certain other contracts specified in Section 43.51. Nondominant carriers may file their tariffs on one day's notice. 19. If I already have an international service tariff on file, do I have to republish my tariff following the new, simplified form and content rules for nondominant carriers? No. The next time you make a change to your tariff, however, you should file your tariff according to the relaxed form and content rules that have been in effect for domestic nondominant carriers and that now are in effect for nondominant international carriers as well. Nondominant international carriers filing tariffs for the first time must now certify in their original tariff cover letter that they are authorized under Section 214 of the Communications Act of 1934, as amended, to provide service and must now reference the FCC authorization file number. Carriers with tariffs already on file need not recite authorizations granted prior to the effective date of the new rules. In circumstances where such a carrier seeks to add new international routes or services after the effective date of these rules, however, the carrier must provide the certification of authorization and reference the FCC file number(s) for the new route(s) and/or service(s). 20. Where can I obtain a copy of the Streamlining Order? Copies of the Streamlining Order can be obtained from our records duplication contractor: ITS, Inc., 2100 M Street, N.W. Suite 140, Washington, D.C. 20037, (202) 857-3800. The Streamlining Order also is available as a text file at http://www.fcc.gov/Bureaus/International/Orders/fcc9679.txt. It is available as a WordPerfect file at http://www.fcc.gov/Bureaus/International/Orders/fcc9679.wp. For questions, contact Helene Schrier Nankin, International Bureau, Suite 800, 2000 M Street, N.W., Stop Code 0800, Washington, D.C. 20554, (202) 418-1460. - FCC -