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PTC’15 Submarine Cable Workshop:Regulatory Update Kent Bressie
18 January 2015
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Overview
1. CSRIC and cable protection
2. FCC fees and charges
3. Team Telecom developments
4. U.S. licensing times
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CSRIC and cable protec5on
§ In 2013, the FCC’s Communications Security, Reliability, and Interoperability Council (“CSRIC”) established an undersea cable working group to promote resilience of U.S. undersea cable infrastructure, particularly in light of conflicts with:
§ Offshore energy development projects, including offshore wind, wave, and tidal energy and oil and gas projects, and
§ Sand dredging and beach replenishment activities.
§ Working group includes undersea cable industry representatives, capacity customers, and other government regulators.
§ In December 2014, the working group delivered its first report on spatial separation. Two further reports will address intergovernmental coordination and route and landing selection.
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CSRIC report on spa5al separa5on
§ Report examines the economic and national-security importance of undersea cables, natural and man-made risks to undersea cable infrastructure, spatial requirements of undersea cable installation and repair, and existing protection methods.
§ Report highlights that the United States is a laggard in undersea cable protection, particularly when compared with countries like Australia and New Zealand.
§ Report makes 13 recommendations, including the adoption of additional protection measures, best practices, and policies by the FCC to mitigate those risks.
§ Report was adopted unanimously by the CSRIC, and the FCC is now working on implementation through rule changes and policy statements.
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CSRIC report recommenda5ons
§ Exclusion zones around existing undersea cables (including exclusions within energy lease blocks).
§ Default separation distances of 500 meters in water depths of less than 75 meters and the greater of 500 meters or two times the depth of water in greater depths of water, absent agreement among affected parties or existence of more particularized standard.
§ Endorsement of existing ICPC, North American Submarine Cable Association (“NASCA”), and Subsea Cables UK standards and recommendations, and development of new standards to address emerging marine activities.
§ Adoption of greater legal penalties for cable damage.
§ Promotion of coordination and consultation at earliest stages of infrastructure and project planning.
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Further decrease in FCC annual regulatory fees
§ In 2014, and following vigorous advocacy by NASCA, the FCC:
§ Decreased submarine cable system regulatory fees by 15 percent, and
§ Agreed with NASCA’s analysis that fees should drop further in future years.
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Team Telecom con5nues to create delays and burdens for new licenses and transac5ons
§ For undersea cable systems, Team Telecom continues to conduct reviews and impose mitigation measures on systems with foreign landings or systems with foreign ownership, whether for new systems or acquisitions of existing systems.
§ In recent reviews, Team Telecom has shown particular concern about:
§ Chinese ownership,
§ Chinese-origin equipment and software, and
§ Direct or indirect ownership by foreign governments and militaries.
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Team Telecom reform
§ The FCC, with support from the Department of State and the Office of the U.S. Trade Representative, have proposed reforms to the Team Telecom process, including:
§ Standardization of questionnaires (including vetting by the White House Office of Management and Budget),
§ Timeframes for review, and
§ On-the-record requests for extended reviews (and an opportunity to challenge such requests).
§ Timing of any reforms remains very uncertain.
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Team Telecom transparency
§ In Ralls v. Committee on Foreign Investment in the United States, the U.S. Court of Appeals for the D.C. Circuit found that the CFIUS had failed to provide a Chinese purchaser of a U.S. wind farm near a Navy facility with notice of the factual basis for government concerns or an opportunity to address those concerns.
§ Going forward, CFIUS must provide parties in such a review with the unclassified information upon which it will base its decision, as well as an opportunity to rebut that evidence.
§ The court’s rationale could apply equally to Team Telecom reviews.
§ It remains to be seen whether the Ralls decision will increase transparency or result in CFIUS and Team Telecom reviews that are entirely classified (and therefore less transparent).
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Recent U.S. licensing 5mes for undersea cables
System Date FCC
Applica1on Filed Date of Security
Agreement or LOA Date FCC
License Granted Total
Licensing Time
Emerald Feb. 5, 2014 Oct. 1, 2014 Oct. 21, 2014 258 days
Pan Caribbean PCCS Jan. 16, 2013 Jan. 14, 2014 Jan. 24, 2014 373 days
viNGN Dec. 21, 2012 none Feb. 25, 2013 67 days
AMX-‐1 Mar. 30, 2012 Jan. 23, 2013 April 26, 2013 306 days
AT&T GOKI Mar. 29, 2011 none* April 14, 2011 16 days
UUI TERRA-‐SW Sept. 14, 2010 none Oct. 28, 2010 44 days
HANTRU1 Feb. 25, 2009 none* June 10, 2009 105 days
Honotua Sept. 26, 2008 Dec. 3, 2010 Dec. 6, 2010 803 days
Am. Samoa-‐Hawaii Aug. 13, 2008 Jan. 9, 2009 Jan. 15, 2009 155 days
CB-‐1 June 3, 2008 Feb. 11, 2009 Feb. 13, 2009 250 days
Unity May 16, 2008 Sept. 21, 2009 Oct. 5, 2009 508 days
* Systems likely exempted from Team Telecom reviews at the request of military customers.
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Recent U.S. approval 5mes for undersea cable-‐related transac5ons
Transac1on Date FCC
Applica1on Filed Date of Security
Agreement or LOA Date FCC
Consent Granted Total
Approval Time
CWC/Columbus Nov. 21, 2014 pending pending pending
Hibernia/KCK Aug. 20, 2014 pending pending pending
Level 3/tw telecom July 7, 2014 none Oct. 24, 2014 108 days
Global Caribbean Fibre/Digicel Dec. 19, 2013 Sept. 8, 2014 Sept. 9, 2014 263 days
GlobeNet-‐Oi/BTG Jan. 19, 2013 Dec. 11, 2013 Dec. 13, 2013 329 days
Sprint/SoPBank Nov. 16, 2012 May 28, 2013* July 3, 2013 230 days
C&W/Vodafone June 13, 2012 Sept. 7, 2012 Oct. 3, 2012 113 days
Wavecom/HT July 17, 2012 none Dec. 28, 2012 164 days
Level 3/Global Crossing May 12, 2011 Sept. 26, 2011 Sept. 29, 2011 137 days
* Security agreement signed with Commi>ee on Foreign Investment in the United States, rather than Team Telecom.
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Recent U.S. licensing 5mes for 214 carrier licenses
Carrier Date FCC Applica1on Filed
Date of Security Agreement or LOA
Date FCC Authoriza1on
Granted
Total Authoriza1on
Time
China Mobile Sept. 1, 2011 pending pending pending
Telecom Italia Sparkle Dec. 28, 2011 Apr. 23, 2013 Apr. 26, 2013 485 days
CITIC Telecom (China) June 29, 2012 pending pending pending
US Telephone & Telegraph (Vietnam) Mar. 27, 2013 pending pending pending
VTA Telecom Corp. (Vietnam) July 18, 2013 pending pending pending
Vodafone US Oct. 28, 2013 Sept. 22, 2014 Sept. 22, 2014 331 days
Cable Andino (Ecuador) Oct. 29, 2013 none Apr. 14, 2014 168 days
Telin USA (Indonesia) Sept. 18, 2014 pending pending pending
* Applicant was otherwise covered by security agreement and technical implementaEon plan for LightSquared.
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Kent Bressie HARRIS, WILTSHIRE & GRANNIS LLP 1919 M Street, N.W., Suite 800 Washington, D.C. 20036-‐2537 U.S.A. +1 202 730 1337 office +1 202 730 1301 fax [email protected] www.hwglaw.com © 2015 Kent Bressie