NYXCOMM.v.43b.pdf

PETITION submitted by U.S. Department of Justice

Letter Agreement

2018-01-30

This document pretains to ITC-214-20170413-00069 for International Global Resale Authority on a International Telecommunications filing.

IBFS_ITC2142017041300069_1332127

Date : October 30, 2017. Assistant Attorney General for National Security United States Department of Justice National Security Division 950 Pennsylvania Avenue NW, Washington, DC 20530 Subject: FCC # ITC-214-20170413-00069 Application by Nyxcomm Corp. for authority pursuant to Section 214 of the Communications Act of 1934, as amended. Sir/Madam: This Letter of Agreement (“LOA” or “Agreement”) sets forth the commitments being made by Nycomm Nyxcomm Corp. Corp. (“Nyxcomm”) to the U.S. Department of Justice (“DOJ”) to address national security, law enforcement, and public safety concerns arising from Nyxcomm’s application to the Federal Communications Commission (“FCC” or “Commission”) pursuant to Section 214 of the Communications Act of 1934, as amended (“Section 214”), and the implementing regulations at 47 C.F.R. § 63.18(e)(1) and (2). Through the above-referenced application, Nyxcomm seeks global and/or limited resale authority. Nyxcomm agrees that its responses to questions posed to Nyxcomm by DOJ, and information contained in its FCC application under the above-referenced docket number, and statements made to both the FCC and DOJ through the Team Telecom process, and any attachments or supplements thereto, were true and correct, and Nyxcomm adopts the facts contained therein. 1. For purposes of this LOA, the following definitions apply: 1.1 “Nyxcomm” means Nyxcomm Corp. or its successors in interest. 1.2 “Access” or “Accessible” means the ability to physically or logically undertake any of the following actions: (a) to read, divert, or otherwise obtain non-public information or technology from or about software, hardware, a database or other system, or a network; (b) to read, edit, or otherwise obtain non- public information regarding Nyxcomm’s personnel, contractors, service partners, subscribers, or users; (c) to add, edit, delete, or alter information or technology stored on by software, hardware, a system or network; and (d) to alter the physical or logical state of software, hardware, a system or a network.

1.3 “Classified Information” shall have the meaning indicated by Executive Order 13526 and the Atomic Energy Act of 1954, or any subsequent Executive Order or statute regarding the protection against unauthorized disclosure of classified information. 1.4 “Date of this LOA” shall mean the date on which the Letter of Agreement is finalized by Nyxcomm and DOJ. 1.5 “Domestic Communications,” as used herein, means: (a) Wire Communications or Electronic Communications (whether stored or not) from one U.S. location to another U.S. location; and (b) the U.S. portion of a Wire Communication or Electronic Communication (whether stored or not) that originates or terminates in the United States. 1.6 “Domestic Communications Infrastructure” means any systems, equipment, hardware, software or applications that capture or control, or transmit the flow of domestic communications on behalf of Nyxcomm, including information technology supporting such networks. 1.7 “Electronic Communication” has the meaning given it in 18 U.S.C. § 2510(12). 1.8 “Electronic Surveillance” means: (a) the interception of wire, oral, or electronic communications as defined in 18 U.S.C. §§ 2510(1), (2), (4) and (12), respectively, and electronic surveillance as defined in 50 U.S.C. § 1801(f); (b) Access to stored wire or electronic communications, as referred to in 18 U.S.C. § 2701 et seq.; (c) acquisition of dialing, routing, addressing, or signaling information through pen register or trap and trace devices or other devices or features capable of acquiring such information pursuant to law as defined in 18 U.S.C. § 3121 et seq. and 50 U.S.C. § 1841 et seq.; (d) acquisition of location- related information concerning a subscriber or facility; (e) preservation of any of the above information pursuant to 18 U.S.C. § 2703(f); and (f) access to or acquisition, interception, or preservation of, wire, oral, or electronic communications or information as described in (a) through (e) above and comparable state laws. 1.9 “Foreign” means non-United States. 1.10 “Geolocation Data” means any information collected by Nyxcomm from its customers regarding a customer’s or the customer’s device’s or browsing location.

1.11 “Government” means any government, or governmental, administrative, or regulatory entity, authority, commission, board, agency, instrumentality, bureau or political subdivision, and any court, tribunal, judicial or arbitral body. 1.12 “Internet Protocol Detail Record” (“IPDR”) means a streaming data protocol used by operations support systems and business support systems to collect and record a user’s data traffic statistics on a network. 1.13 “Internet Search Information” includes any data collected by Nyxcomm about its customer’s internet browsing or purchasing activities through any mechanism permitted by the services offered by Nyxcomm. 1.14 “Lawful U.S. Process” means U.S. federal, state, or local court orders, subpoenas, warrants, processes, directives, certificates or authorizations, and other orders, legal process, statutory authorizations and certifications for electronic surveillance, physical search and seizure, production of tangible things or access to or disclosure of Domestic Communications, and call-associated data, transactional data, subscriber information, or associated records. 1.15 “Network elements” means any facility, equipment, software, hardware or applications, used in the provision of telecommunications services, including features, functions and capabilities that are provided by means of such facility or equipment, including subscriber numbers, databases, signaling systems, and information sufficient for billing, receiving and/or aggregating customer data, and collection or used in the transmission, routing, or other provision of telecommunications services. 1.16 “Network Operations Center” or “NOC” means any locations and facilities performing network management, monitoring, accumulation of accounting and usage data, maintenance, user support, or other operational functions for Domestic Communications. 1.17 “Non-US government” means any government, including an identified representative, agent, component or subdivision thereof, that is not a local, state, or federal government in the United States. 1.18 “Offshoring” means performing obligations of this agreement through the use of entities and personnel outside of the territorial limits of the United States, whether those entities or personnel are employees of Nyxcomm, its subsidiaries, or third parties. 1.19 “Outsource” or “outsourcing” means, with respect to Domestic Communications, supporting the services and operational needs of Nyxcomm at issue in this LOA through the use of contractors or third parties.

1.20 “Principal Equipment” means any equipment, hardware, software, or applications capable of controlling domestic communications, as well as device controllers, signal routing and transfer routers, devices that perform network or element management, fiber optic line termination and multiplexing, core and edge routing, network protection, radio network control, mobility management, or lawful intercept functions, and non-embedded software necessary for the proper monitoring, administration and provisioning of any such equipment. This definition may be modified from time to time by DOJ as may be necessary due to changes in technology, business model, management, structure of services offered, or governance of the domestic communications. 1.21 “U.S. Records” means Nyxcomm customer billing records, subscriber information, text, Internet Search Information or purchasing information, Geolocation Data, Customer Proprietary Network Information, and any other related information used, processed, or maintained in the ordinary course of business relating to the services offered by Nyxcomm in the United States, including information subject to disclosure to a U.S. federal or state governmental entity under the procedures specified in 18 U.S.C. § 2703(c) and (d) and 18 U.S.C. § 2709. 1.22 “Wire Communication” has the meaning given in 18 U.S.C. § 2510(1). 2. Nyxcomm agrees that it will comply with all applicable lawful interception statutes, regulations, and requirements, including the Communications Assistance for Law Enforcement Act (“CALEA”), 47 U.S.C. § 1001 et seq., and its implementing regulations, and all court orders and other legal process for lawfully authorized electronic surveillance and other U.S. lawful process. Nyxcomm further affirms that its Chief Executive Officer, Chief Operating Officer, and President understand the types of services are covered by CALEA. Nyxcomm agrees that it will only use underlying telecommunications carriers that have CALEA capabilities for the provision of services within the United States. 3. Nyxcomm agrees to notify DOJ, at least 30 days in advance, of any change to its current services portfolio using the means of communication set forth in paragraphs 14-15 of the LOA. Nyxcomm also agrees to provide DOJ with notice of any change to its business, including but not limited to changes in its corporate structure, ownership, business model, corporate name changes, corporate location changes, business operations locations changes, and products or services offered, within 30 days of such change 4. Nyxcomm agrees to draft a Network and Systems Security Plan (“NSSP”), which it will forward to DOJ within 60 days of this LOA, and which must be reviewed and approved by DOJ. Nyxcomm’s proposed NSSP shall address but not be limited to information security, remote access, physical security, cyber-security, third party contractors, outsourcing and offshoring, system logs, protection of Lawful U.S. Process, including Internet Search

Information and Geolocation Data, and protection of U.S. customer information obtained by Nyxcomm through the provision of services. 5. Nyxcomm agrees that it will not, directly or indirectly, disclose or permit disclosure of, or access to U.S. Records or Domestic Communications or any information (including call content and call data) pertaining to a wiretap order, pen/trap and trace order, subpoena, or any other lawful process by a U.S. law enforcement agency to any person (including Lawful U.S. Process), if the purpose of such disclosure or access is to respond to a legal or informal request made on behalf of a non-U.S. government entity, without first satisfying all pertinent requirements of U.S. law and obtaining the express written consent of DOJ, or obtaining a ruling authorizing the disclosure from a court of competent jurisdiction in the United States. Any legal or informal requests submitted by a non-U.S. government entity to Nyxcomm shall be referred to DOJ for prior approval as soon as possible, but no later than five business days after such the request is received by or made known to Nyxcomm, unless disclosure of the request or legal process would be in violation of U.S. law or an order of a court of competent jurisdiction of the United States. 6. Nyxcomm also agrees to ensure that U.S. Records are not made subject to mandatory destruction under any foreign laws. Nyxcomm agrees to store all U.S. Records in the United States at 21011 Johnson Street, Suite 110, Pembroke Pines, FL 33029. Nyxcomm will provide DOJ at least 30 days advance notice of any change in location of the U.S. Records’ storage facility through the contact information in paragraphs 14-15 of this LOA. 7. Nyxcomm agrees to consult in good faith with DOJ before it enters into any agreement with foreign telecommunications, data or data aggregation services, foreign major network operators or mobile virtual network operators, and in any event no less 15 business days in advance of any such agreement. Failure to consult with DOJ in good faith will be considered a material breach of this LOA. 8. Nyxcomm agrees that within 30 days of the date of this LOA, Nyxcomm will nominate a law enforcement point of contact (“LEPOC”) in the United States who will be subject to prior approval by DOJ, who will be an employee of Nyxcomm, and: a. The LEPOC will be an employee of Nyxcomm, and will have the necessary experience and access to fulfill that role; b. The LEPOC shall be a U.S. citizen residing in the United States, unless DOJ agrees in writing otherwise, and the LEPOC must be approved by DOJ to receive Lawful U.S. Process for U.S. Records, and to assist and support lawful requests for surveillance or production of U.S. Records by U.S. federal, state, and local law enforcement agencies;

c. Before nominating a LEPOC, Nyxcomm will consider that the LEPOC should be an individual who can receive a security clearance pursuant to the current Executive Order pertaining to Classified Information; d. This LEPOC’s identifying information, his/her contact information, and a statement of facts supporting a conclusion that his/her experience and level of access is adequate, shall be provided by Nyxcomm to DOJ at the time Nyxcomm nominates the LEPOC; e. Nyxcomm agrees that the LEPOC will not be deemed acceptable to DOJ for purposes of this LOA until the DOJ agrees. If the nominated LEPOC is acceptable to the DOJ, Nyxcomm agrees to maintain that individual as the LEPOC; f. If Nyxcomm needs to change the LEPOC, Nyxcomm will give DOJ 30 days’ advance notice prior to any proposed change to its LEPOC, or will notify DOJ of the need to change the LEPOC as soon as possible, and will explain why a period of less than 30 days’ notice was given for the change in the LEPOC; g. Nyxcomm also agrees that the designated LEPOC will have access to all U.S. Records, and, in response to Lawful U.S. Process, will make such records available promptly, and, in any event, no later than five business days, or the period required by the Lawful U.S. Process, whichever is longer, after receiving such Lawful U.S. Process; h. The LEPOC will ensure that non-U.S. citizens do not have access to U.S. records, including but not limited to CPNI, CDR and billing records of U.S. citizens, unless the non-U.S. citizen has been identified in advance to DOJ, has provided their personally identifiable information, and has been approved by DOJ for access; i. The LEPOC and will provide DOJ with written confirmation of its implementation of these limitations, and a description of how these limitations on access will be accomplished within 45 days of the LOA; and j. Notices and information regarding the LEPOC will be sent to the contacts set forth in paragraphs 14-15 of this agreement. 9. Nyxcomm agrees that it will timely file all reports and pay all fees and fines required by local, state and federal laws in connection with is provision of telecommunications services and any authorizations or licenses for the same. Nyxcomm agrees to pay all monies owed to the FCC on time.

10. Nyxcomm will provide 15 days’ advance notice to DOJ of any foreign personnel who may have access to, or may have accessed Nyxcomm’s call detail records (“CDRs”), or physical or logical access to Nyxcomm’s network, and to supply information about that individual, including, but not limited to: full name, date of birth, place of birth, residence address, mobile telephone numbers used, passport number, country of passport issuance, and work location(s) of that individual. Access to CDRs by any foreign individual will be subject to approval by DOJ. 11. Nyxcomm agrees to provide a Principal Equipment list to DOJ within 30 days of this agreement. 12. Nyxcomm further agrees that it will provide advance notice to DOJ of all outsourced service providers located in whole or in part outside the United States, including but not limited to services provided in relation to: a. Network operation center(s) (“NOC”); b. Network maintenance services; c. Customer support services; d. Any operation/service that could potentially expose U.S. Domestic Communications Infrastructure, U.S. Records, Internet Search Information, CDRs, or Customer Proprietary Network Information (“CPNI”) by any means; and, e. Deployment of any network elements, Principal Network Equipment, and network management capabilities, including but not limited to software or applications used to manage or monitor network operations, that are owned, managed, created, altered, supplied or controlled by a foreign entity, including a foreign government. 13. Nyxcomm agrees to provide an annual report to DOJ regarding the company’s compliance with this LOA, including: a. A statement confirming that there were no changes if no changes were reported to DOJ during the preceding year, or a detailed statement describing all changes from the previous year required to be reported to DOJ; b. A statement regarding Nyxcomm’s CALEA compliance, and confirming its completion of any forms, filings or security plans required by the FCC regarding its LEPOC, and a statement about whether the information provided to the FCC is current as of the date of the annual report; c. A statement confirming that the company’s handling of U.S. Records, Domestic Communications, and U.S. lawful process was in accordance with the assurances contained herein, and a list of all individuals with access to U.S. call detail records;

d. A statement explaining any changes in the services that Nyxcomm provides, or confirmation that no additional services are being offered; e. A statement explaining any relationships with foreign-owned telecommunications partners, including any peering relationships, contracts, or joint ventures; f. An updated list of Nyxcomm’s Principal Network Equipment vendors and suppliers; g. Updated Network and Systems Security Plans and Procedures; h. A statement providing details of any occurrences of cyber-security incidences, network and enterprise breaches, and unauthorized access to customer data and information, and Nyxcomm’s response; i. A statement confirming the name of, role and contact information of the LEPOC; j. A statement regarding any other matter referenced in this LOA; and, k. A detailed organization chart that includes the names and roles of all executive- level personnel. 14. The annual report will be due every 31st day of October of each calendar year, beginning on October 31, 2018. The annual report and all information required to be reported by Nyxcomm to DOJ by this LOA shall be addressed to: Assistant Attorney General for National Security U.S. Department of Justice National Security Division 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Attention: FIRS/Team Telecom Staff 15. Courtesy electronic copies of all notices and communications required herein shall also be sent to the following or individuals identified by DOJ: Bermel Paz, at Bermel.Paz@usdoj.gov; Principal Deputy Chief, National Security Division, Foreign Investment Review Staff, Richard Sofield, at Richard.Sofield2@usdoj.gov; Attorney-Advisor Elisabeth Poteat, at Elisabeth.Poteat@usdoj.gov; and to the DOJ mailbox FIRSTT@usdoj.gov. 16. Nyxcomm agrees that it will take all reasonable measures to accommodate DOJ requests for site visits and all requests to conduct on-site interviews of Nyxcomm employees. 17. This LOA shall inure to the benefit of, and shall be binding upon, Nyxcomm and its successors, assigns, subsidiaries, and affiliates, if any. Nyxcomm agrees that, in the event that

the commitments set forth in this letter are breached, in addition to any other remedy available at law or equity, DOJ may request the FCC to modify, condition, revoke, cancel, terminate or render null and void any relevant license, permit, or other authorization granted by the FCC to Nyxcomm or its successors-in-interest. 18. Nothing in this letter is intended to excuse Nyxcomm from its obligations to comply with any and all applicable legal requirements and obligations, including any and all applicable statutes, regulations, requirements, or orders. 19. Nyxcomm understands that, upon execution of this LOA by an authorized representative or attorney, or shortly thereafter, DOJ shall notify the FCC that it has no objection to the FCC’s consent to Nyxcomm’s application. Sincerely, ________________________________ CEO


Document Created: 2018-01-23 14:01:43
Document Modified: 2018-01-23 14:01:43
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