Attachment STA Request

This document pretains to ITC-STA-20100129-00024 for Special Temporal Authority on a International Telecommunications filing.

IBFS_ITCSTA2010012900024_798892

BI NG HAM Phone: 202.373.6000 Fax: 202.373.6001 January 29, 2010 BY ELECTRONIC FILING Ms. Marlene H. Dortch Secretary Federal Communications Commission 445 12th Street, S.W. Washington, DC 20554 Re: Request for Special Temporary Authority (International Section 214 Authorization) Dear Ms. Dortch: FTTH Communications, LLC ("FTTH") and Everest FTTH Acquisition LLC ("Everest" and together with FTTH, the "Applicants"), pursuant to Section 214 of the Communications Act, as amended, 47 U.S.C. § 214, and Section 63.24 of the Commission‘s Rules, 47 C.FR. § 63.24, respectfully request expedited Special Temporary Authority ("STA") for FTTH to provide international Section 214 services pending the grant of such authority. FTTH is a non—dominant carrier that will be owned by Everest upon completion of a transaction, a U.S. company that is not a foreign carrier or affiliated with a foreign carrier, and does not have any direct or indirect foreign owners holding an ownership interest of more than 10 percent. Applicants respectfully request that the Commission grant this STA request as soon as possible, and not later than February 1, 2010, so that disruption of services to FTTH customers can be avoided. Concurrently herewith, FTTH and Everest are filing a transfer of control application and a request for special temporary authority to transfer the domestic Section 214 authorization that FTTH holds. As detailed in the underlying international Section 214 application filed Boston Hartford concurrently herewith and attached hereto (the "Application"), FTTH will be a wholly— Hong Kong owned subsidiary of Everest upon the completion of a transfer of control transaction. London Everest and FTTH discovered during the acquisition process that FTTH does not hold Los Angeles international Section 214 authority. Everest is prepared to continue offering services to New York the FTTH customers and requests immediate authority so that FTTH may provide Orange County international Section 214 services and disruption of services to FTTH‘s customers can be San Francisco Santa Monica avoided. Silicon Valley Tokyo Accordingly, Applicants respectfully request grant of this STA request as soon as Washington possible so that FTTH may provide international Section 214 services pending the grant of such authority. Applicants acknowledge that grant of this request will not prejudice action by the Commission on the underlying Application and that any authority granted Bingham McCutchen LLP pursuant to this request is subject to cancellation or modification upon notice but without 2020 K Street NW a hearing. Washington, DC 20006—1806 T 202.373.6000 F 202.373.6001 bingham.com A/73281273.1

Ms. Marlene H. Dortch January 29, 2010 Page 2 Should you have any questions or require further information, please do not hesitate to contact us. Respectfully submitted, Jean L. Kiddoo Aunt Danielle Burt Counsel for Everest FTTH Acquisition LLC ce: Jeffrey Feldman, Everest FTTH Acquisition LLC Patrick Engels, Rudder Capital Corporation Clyde C. Abhlquist, Esq. Bingham McCutchen LLP A/T3281273.1 bingham.com

DECLARATION OF JEFFREY FEDLMAN I, Jeffrey Feldman, hereby declare that; 1. I am the founder of Everest FTTH Acquisition LLC. 2. I am authorized to make this Declaration on behalf of Everest FTTH Acquisition LLC. 3. The contents of the foregoing request for Special Temporary Authority are true and correct to the best of my knowledge, information and belief. I declare under penalty of perjury that the foregoing is true and correct. Executed this 2\ day of January, 2010. Aulpy T Féldman F e \Everest FTTH Acquisition LLC

DECLARATION OF FTTH COMMUNICATIONS, LLC I, Patrick J. Engels, hereby declare that the following is true and correct to the best of my knowledge, information and belief: 1. I am President of FTTH Communications, LLC. My business address is 2980 Coramer Drive, Suite 300, Eagan, MN 55121. 2. I am authorized to make this Declaration on behalf of FTTH Comniunications, LLC. 3. FTTH Communications, LLC currently provides facilities—based and resold local exchange and interexchange services in Minnesota and primarily in the Twin Cities metropolitan area. It offers these services on both an interstate and intrastate basis. 4. FTTH Communications, LLC has approximately several hundred customers. 5. Everest FTTH Acquisition LLC entered into an agreement to acquire all of the membership interests of FTTH Communications, LLC from Rudder Capital Corporation. Everest FTTH Acquisition LLC is prepared to continue offering services to the customers of FTTH Communications, LLC. 6. As of January 27, 2010, FTTH Communications, LLC has been advised by Rudder Capital Corporation that Rudder Capital Corporation intends to liquidate the company‘s assets, absent full payment for the company by February 1, 2010 for outstanding debt. 7. The contents of the foregoing filing are true and correct to the best of my knowledge, information and belief. Al73279832.1

I declare under penalty of perjury that the foregoing is true and correct. Executed this 28 +5 day of January, 2010. 313C L Patrick J. Engels FTTH Communications, LLC Al73279832.1

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 ) In the Matter of ) ) FTTH Communications, LLC ) (FRN 0007719230) ) ) . Application for Global Authority ) File No. ITC—214— — Pursuant to Section 214 of the ) Communications Act of 1934;, as amended, ) to Operate as an International Facilities—Based ) and Resale Carrier Between the United States ) and Various International Points ) ) APPLICATION FTTH Communications, LLC ("FTTH" or "Applicant") hereby requests global facilities— based authority and global resale authority, under Section 214 of the Communications Act of 1934, as amended (the "Act"), 47 U.S.C. § 214, and Section 63.18 of the Commission‘s Rules, 47 C.F.R. §63.18, to provide international telecommunications services between the United States and international points. Concurrently herewith, FTTH and Everest FTTH Acquisition LLC (‘Everest") are filing a request for special temporary authority for FTTH to provide international services pending the grant of such authority.‘ 1 Everest had previously entered into a securities agreement to acquire all of the membership interests of FTTH. As part of the acquisition process, Everest and FTTH discovered that FTTH does not hold international Section 214 authority. Everest is prepared to continue offering services to the FTTH customers and requests immediate authority so that FTTH may provide international Section 214 services and disruption of services to FTTH‘s customers can be avoided.

I. THE APPLICANT FTTH is a Minnesota limited liability company with its principal offices located at 2980 Commers Drive, Suite 300, St. Paul, MN 55121. FTTH provides intrastate and interstate telecommunications services to approximately several hundred customers in Minnesota. FTTH holds blanket domestic Section 214 authority and holds authority from the Minnesota Public Utilities Commission to provide facilities—based and resold local exchange telecommunications services in the Twin Cities metropolitan area and interexchange telecommunications services throughout Minnesota. FTTH will be a wholly—owned subsidiary of Everest upon the completion of a transfer of control transaction." Everest entered into a securities purchase agreement ("Agreement") with Rudder Capital Corporation for Everest to acquire all of the membership interests of FTTH. Immediately following the consummation of the proposed transaction, Everest will become the new corporate parent of FTTH. FTTH has no affiliation with any foreign carrier in any of the destination countries for which authority is requested nor is FTTH affiliated with any dominant U.S. carrier whose services FTTH may resell. Thus, pursuant to Section 63.10 (a)(1) of the Commission‘s Rules, 47 C.FR. § 63.10 (a)(1), FTTH should be classified as a non—dominant carrier in its provision of international service on all routes. Furthermore, as explained herein, this Application is entitled to streamlined processing under Section 63.12 of the Commission‘s Rules. 47 C.F.R. § 63.12. IJ. PUBLIC INTEREST CONSIDERATIONS FTTH believes that the added competition it will bring to the market will benefit the consumers of United States—international telecommunications services. These benefits include 2 FTTH and Everest are concurrently filing a transfer of control application and a request for special temporary authority to transfer the domestic Section 214 authorization that FTTH holds.

competitive pricing and increased availability of a variety of innovative service options. Therefore, grant of this Application will further the public interest. III. INFORMATION REQUIRED BY SECTION 63.18 FTTH submits the following information, as required by Section 63.18 of the Commission‘s Rules, in support of this Application: (a) Name, address and telephone number of Applicant: FTTH Communications LLC 2980 Commers Drive, Suite 300 St. Paul, MN 55121 Tel: (651) 925—4222 (b) Applicant is organized under the laws of the State of Minnesota. (c) Correspondence concerning this application should be sent to: Jean L. Kiddoo Danielle Burt BINGHAM MCCUTCHEN LLP 2020 K Street, N.W. Washington, DC 20006 Tel: (202) 373—6000 Fax: (202) 373—6001 Email: jean.kiddoo@bingham.com danielle.burt@bingham.com with a copy to: Jeffrey Feldman Everest FTTH Acquisition LLC Suite L—10 1 Executive Drive Fort Lee, NJ 07024 Tel: (201) 905—8309 Fax: (201) 944—7467 _ (d) FTTH currently holds domestic Section 214 authorization.

(e) FTTH requests global Section 214 authority to operate as a facilities—based and resale international carrier pursuant to Sections 63.18(e)(1) and 63.18(e)(2), respectively, of the Commission‘s Rules. FTTH requests such authorization for all international routes authorized by the Commission. 8 FTTH seeks Section 214 authorization to provide only the services referenced under paragraph (e) of Section 63.18 of the Commission‘s Rules. (g) FTTH will use previously authorized facilities to provide the services requested by the Application. Consequently, FTTH is categorically excluded from environmental assessment pursuant to Section 1.1306 of the Commission‘s Rules. 47 C.F.R. § 1.1306. (h) Following the completion of the transaction with Everest, information regarding the 10% or greater direct or indirect owners of Applicant will be as follows. (1) The following entity will own or control ten percent (10%) or more of FTTH Communications, LLC: Name: Everest FTTH Communications LLC. Address: 1 Executive Drive, Suite L—10 Fort Lee, NJ 07024 Citizenship: U.S. (Delaware corporation) Percentage Owned: 100% Principal Business: Holding Company (2) The following entity owns or controls ten percent (10%) or more of Everest FTTH Acquisition LLC: Name: EveresTV, Inc. Address: 1 Executive Drive, Suite L—10 Fort Lee, NJ 07024 Citizenship: U.S. (Delaware corporation) Percentage Owned: 81% Principal Business: Holding Company (3) The following entity owns or controls ten percent (10%) or more of EverestTV, Inc.: Name: Primary Succession Capital, LLC Address: 1 Executive Drive, Suite L—10 Fort Lee, NJ 07024 Citizenship: U.S. (New York limited liability company) Percentage Owned: 80% Principal Business: Investment Company

(4) The following individual owns or controls ten percent (10%) or more of Primary Succession Capital, LLC: Name: Jeffrey Feldman Address: 1 Executive Drive, Suite L—10 Fort Lee, NJ 07024 Citizenship: U.S. Percentage Owned: 100% Principal Business: Individual (5) No other entity will own or control more than 10% directly or indirectly of FTTH Communications, LLC. Applicant does not have any interlocking directorates with a foreign carrier. (1) FTTH certifies that it is not affiliated with a foreign carrier. 0) FTTH certifies that it does not seek to provide international telecommunications services to any destination country for which any of the following is true: (1) The Applicant is a foreign carrier in that country; or (2) The Applicant controls a foreign carrier in that country; or (3) Any entity that owns more than twenty—five percent (25%) of Applicant, or that controls the Applicant, controls a foreign carrier in that country. (4) Two or more foreign carriers (or parties that control foreign carriers) own, in the aggregate, more than twenty—five percent (25%) of Applicant and are parties to, or the beneficiaries of, a contractual relation (e.g., a joint venture or market alliance) affecting the provision or marketing of international basic telecommunications services in the United States. (k) Not applicable. (1) Not applicable. Applicant does not propose to resell the international switched services of an unaffiliated U.S. carrier for the purpose of providing international telecommunications services to a country where it is a foreign carrier or is affiliated with a foreign carrier. (m) Not applicable. (n) FTTH certifies that it has not agreed to accept special concessions directly or indirectly from any foreign carrier where the foreign carrier possesses market power on the foreign end of the route and FTTH will not enter into such agreements in the future.

(0) FTTH certifies, pursuant to Sections 1.2001 through 1.2003 of the Commission‘s Rules (implementing the Anti—Drug Abuse Act of 1988, 21 U.S.C. § 862), it is not subject to a denial of Federal benefits pursuant to Section 5301 of the Anti—Drug Abuse Act of 1988. (p) FTTH respectfully requests streamlined processing of this Application pursuant to Section 63.12 of the Commission‘s Rules. 47 C.F.R. § 63.12. This Application qualifies for streamlined processing for the following reasons: (1) FTTH is not affiliated with a foreign carrier on any route for which authority is sought; (2) FTTH is not affiliated with any dominant U.S. carriee whose international switched or private lines services it seeks to resell; and (3) FTTH is not requesting authority to provide switched service over private lines to countries not previously authorized for service by the Commission. IV. CONCLUSION For the reasons stated above, FTTH Communications, LLC respectfully submits that the public interest, convenience, and necessity would be furthered by a grant of this Application. Respectfully submitted, @DM\IQQQQ BuN— JeanL. Kiddoo Danielle Burt 2020 K Street, N.W. Washington, DC 20006 Tel: (202) 373—6000 Fax: (202) 373—6001 Email: jean.kiddoo@bingham.com danielle.burt@bingham.com Counsel for Everest FTTH Acquisition LLC Dated: January 29, 2010

VERIFICATION I, Jeffrey Feldman, state that I am the founder of Everest FTTH Acquisition LLC; that I am authorized to make this Verification on behalf of Everest FTTH Acquisition LLC; that the foregoing filing was prepared under my direction and supervision; and that the contents are true and cortect to the best of my knowledge, information, and belief. I declare under penalty of perjury that the foregoing is true and correct. Executed this &_p\ day of January, 2010. ul s, THde.. effr eldpan E TJTH Acquisition LLC

CERTIFICATION OF APPLICANT The undersigned hereby certifies, on behalf of FTTH Communications, LLC ("FTTH") with respect to the foregoing application for section 214 authority to provide international services, that: 1. FTTH is not affiliated with any foreign carrier in any of the countries to which FTTH proposes to provide service in the foregoing application. 2. FTTH will comply with the terms and conditions contained in Section 63.21, 63.22 and 63.23 of the Commission‘s Rules. 47 C.F.R. 63.21—.23 3. FTTH does not seek to provide international telecommunications service to any destination where: (1) FTTHis a foreign carrtier in that country; (2) FTTH controls a foreign carrier in that country; (3) any entity that owns more than a 25% interest in FTTH, or controls FTTH, controls a foreign carrier in that country; or (4) two or more parties own, in the aggregate, more than 25% of FTTH and are parties to, or the beneficiaries of, a contractual relationship that affects that provision or marketing of international basic telecommunications services in the United States. 4. FTTH has not agreed to accept special concessions directly or indirectly from any foreign carrier with respect to any U.S. international route where the foreign carrier possesses sufficient market power on the foreign end of the route to affect competition adversely in the U.S. market and will not enter into such agreements in the future. 5. FTTH is not subject to a denial of Federal benefits pursuant to Section 5301 ofthe Anti—Drug Abuse Act of 1988. 6. The contents of the Application are true and correct to the best of my knowledge, information, and belief. FTTH Communications, LLC By: Name: Patrick Engels Title: President Date: January 29, 2010 A/?3280582.2


Document Created: 2010-01-29 17:56:47
Document Modified: 2010-01-29 17:56:47
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