NOTIFICATIONS OF AFFILIATION WITH A FOREIGN CARRIER
47 C.F.R. § 63.11; 47 C.F.R. § 1.768
Under Section 63.11 of the Commission’s rules, 47 C.F.R. § 63.11, authorized U.S.-international carriers have a continuing obligation to notify the Commission of foreign carrier affiliations acquired after the Commission grants their international Section 214 authorizations. In certain circumstances, authorized U.S.-international carriers have an obligation to obtain Commission approval before acquiring an affiliation with a foreign carrier.
Similarly, under Section 1.768 of the Commission’s rules, 47 C.F.R. § 1.768, U.S. cable landing licensees have a continuing obligation to notify the Commission of an affiliation with a foreign carrier authorized to operate in a market where the U.S.-licensed cable lands. In certain circumstances, U.S. cable landing licensees have an obligation to obtain Commission approval before acquiring an affiliation with a foreign carrier authorized to operate in a market where the U.S.-licensed cable lands.
The information below summarizes the provisions of Section 63.11. Authorized U.S.-international carriers should not rely on this summary for purposes of ensuring their compliance with the specific provisions of 47 C.F.R. § 63.11.
The notification requirements for U.S. cable landing licensees under Section 1.768 are similar to those contained in Section 63.11 but there are important differences. U.S. cable landing licensees can find the specific provisions at 47 C.F.R. § 1.768.
Summary of Section 63.11
- Unless it qualifies for an exception (explained below), an authorized U.S.-international carrier must notify the Commission pursuant to § 63.11(a) 45 days before consummation of:
(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 25% 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 25%, or 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 carrier is authorized to serve, or by an entity that controls such a foreign carrier.
- All authorized carriers that acquire a foreign carrier affiliation that is not subject to the prior notification requirement must still file a post notification of the affiliation.
- Exceptions. No prior notification is required if an authorized carrier acquires an affiliation, but the foreign carrier involved is:
(1) a foreign carrier that we have previously determined in an adjudication lacks market power on the foreign end of the U.S.-international route; or
(2) a foreign carrier that owns no facilities on the foreign end of the U.S.-international route; or
(3) authorized to operate in a WTO Member country and the carrier demonstrates in its notification that it qualifies for non-dominant treatment under § 63.10 or, in the alternative, agrees to comply with the dominant carrier safeguards in § 63.10
In the event a foreign carrier affiliation is subject to one of these exceptions, the authorized carrier must file its post notification of affiliation pursuant to § 63.11(c), within 30 days after consummation of the acquisition. The authorized carrier must include in its notification a certification stating which exception it satisfies and a citation to any adjudication upon which the carrier is relying.
- All carriers filing notifications under the rule, whether the notifications are prior or post, must indicate in the text of the notification whether the notification is a prior or post notification. In the case of prior notifications, carriers must also include the projected closing date of the transaction. In the case of post notifications, carriers must include the actual closing date. The information and certifications required to be included in all notifications can be found in § 63.11(e).
- In circumstances where both a notification of foreign carrier affiliation and an application for assignment or transfer of control will be filed with the Commission, carriers are required to include in their notification a cross-reference to the application and note the date of its filing. We emphasize that separate filings are required.
If an authorized carrier is acquiring an affiliation with a foreign carrier from a non-WTO Member country and the affiliation is subject to prior notification, the authorized carrier must demonstrate that the foreign carrier lacks market power in the non-WTO Member country or agree to comply with the dominant carrier safeguards in § 63.10(c).
- This rule is subject to approval by the Office of Management and Budget. The Commission will publish a document in the Federal Register announcing such approval and the effective date of the rule, which will be codified in § 63.11(g)(2). See Reform of Rules and Policies on Foreign Carrier Entry Into the U.S. Telecommunications Market, FCC 14-48, rel. Apr. 22, 2014.
- An authorized carrier filing a prior notification of affiliation may request that, for the initial 20 days of the 45 day prior notification period, the notification be treated confidentially. After the initial 20 days, the Commission's staff will no longer afford the notification confidentiality and will accordingly place the foreign carrier notification on public notice for comment.
- All authorized carriers are responsible for the continuing accuracy of information provided in their notifications for a period of 45 days after filing. Carriers must immediately inform the Commission, if at any time, not limited to 45 days, the representations in the special concessions certification under § 63.11(e)(6) and § 63.18(n) are no longer true.