Hibernia KCK Petitio

PETITION submitted by Department of Homeland Security

DHS Petition Attachment A

2014-12-23

This document pretains to ITC-T/C-20140820-00244 for Transfer of Control on a International Telecommunications filing.

IBFS_ITCTC2014082000244_1071910

                                          KELLEY DRYE & W ARREN                                LLP
                                                   A LI MIT E D LIA BI LIT Y P ART NER SHI P




                                          WASHI NGT ON HARBOUR, SUIT E 40 0
   NEW   YO RK,      NY                                                                                       F ACSIM I LE

 LOS   A NGE LES,       CA                        3050 K STREET , NW                                       ( 202)   342 - 8451

    CHI CAGO,     I L                                                                                     www.kelleydrye.com
                                            WASHI NGT ON, D. C. 20 007- 5108
   S TAM FORD,       CT

  P A RSI PP A NY,      NJ
                                                         (202) 342-8400

B RUS SE LS,   BE LGI UM
                                                                                                     DIRECT L INE: (202) 3 42-8614

                                                                                                     EMA IL: ds mi th@kelleyd rye.co m
   AFFILIATE OFFICES

    MUMBAI, INDIA




                                                  September 17, 2014



BY IBFS

Ms. Sumita Mukhoty
International Bureau
Federal Communications Commission
445 12th Street, SW
Washington, D.C. 20554

                          Re:   Transfer of Control of Hibernia Atlantic U.S. LLC and Hibernia Media, LLC to
                                KCK Limited, ITC-T/C-20140820-00242; ITC-T/C-20140820-00244; SCL-
                                T/C-20140820-00007

Dear Ms. Mukhoty:

                Attached please find a copy of the September 12, 2014 letter submitted to the U.S.
Department of State, U.S. Department of Commerce and Defense Information Systems Agency. That
letter, submitted pursuant to Section 1.767(j) of the Federal Communications Commission’s (“FCC”)
rules, 47 C.F.R. § 1.767(j), provided a copy of the Application for the transfer of control of Hibernia
Atlantic U.S. LLC and Hibernia Media, LLC to Murosa Development S.A.R.L. and KCK Limited that
was filed with the FCC on August 20, 2014.

                Please contact the undersigned at (202) 342-8614 should you have any questions
regarding this letter.

                                                                Respectfully submitted,




                                                                Denise N. Smith
                                                                Counsel to Hibernia Atlantic US LLC, Hibernia
                                                                Media, LLC and Columbia Ventures Corporation


                                   KELLEY DRYE & WARREN                       LLP
                                            A LIMITED LIABILITY PARTNERSHIP




                                   WASHINGTON HARBOUR, SUITE 400
  NEW YORK, NY                                                                                         FACSIMILE

 LOS ANGELES, CA                           3050 K STREET, NW                                        (202) 342-8451

   CHICAGO, IL                                                                                     www. kelleyd rye. corn
                                     WASHINGTON, D.C. 20007-5108
  STAMFORD, CT

 PARSIPPANY, NJ
                                                (202) 342-8400


BRUSSELS, BELGIUM
                                                                                             DIRECT LINE: (202) 342-8614

                                                                                             EMAIL: dsmith@kelleydrye.com
  AFFILIATE OFFICES
   MUMBAI, INDIA




                                           September 12, 2014



  BY OVERNIGHT DELIVERY



  U.S. Coordinator                                           Office of Chief Counsel/NTIA
  EB/CIP                                                     U.S. Department of Commerce
  U.S. Department of State                                   14th St. and Constitution Ave., NW.
  2201 C Street, NW.                                         Washington, DC 20230
  Washington, DC 20520-5818

  Defense Information Systems Agency
  ATTN: GC/D01
  6910 Cooper Avenue
  Fort Meade, MD 20755-7088



                      Re:   Transfer of Control of Hibernia Atlantic U.S. LLC and Hibernia Media,
                            LLC to KCK Limited, ITC-T/C-20140820-00242; ITC-T/C-20140820-
                            00244; SCL-T/C-20140820-00007

  Dear Sir or Madam:

                  Pursuant to Section 1.767(j) of the Federal Communications Commission's
   ("FCC") rules, 47 C.F.R. § 1.767(j), attached please find a copy of an Application for the transfer
   of control of Hibernia Atlantic U.S. LLC ("Hibernia Atlantic") and Hibernia Media, LLC
   ("Hibernia Media") to Murosa Development S.A.R.L. ("Murosa") and KCK Limited ("KCK").

                   On August 20, 2014, the Application was filed with the FCC requesting approval
   of a transaction that will result in the transfer of control of Hibernia Atlantic and Hibernia Media
   from Columbia Ventures Corporation ("CVC") to Murosa and KCK (collectively the
   "Applicants"). Hibernia Atlantic and Hibernia Media each hold both domestic and international
   operating authority as common carriers under Section 214 of the Communications Act of 1934,
   as amended, and Hibernia Atlantic also holds a submarine cable landing license.


                             KELLEY DRYE & WARREN             LLP




U.S. Department of State
U.S. Department of Commerce
Defense Information Systems Agency
September 12, 2014
Page 2


              Service of this Application was inadvertently not made at the time the Application
was submitted to the FCC.

               Questions regarding this filing should be directed to the undersigned at (202) 342-
8400.



                                                 Respectfully submitted,



                                                       —0(it,e4e,
                                                 Denise N. Smith
                                                 Counsel to Hibernia Atlantic US LLC, Hibernia
                                                 Media, LLC and Columbia Ventures
                                                 Corporation


                                    Before the
                     FEDERAL COMMUNICATIONS COMMISSION
                              Washington, D.C. 20554


In the Matter of                             )
                                             )
Columbia Ventures Corporation                )
                                             )
Transferors                                  )             WC Docket No. _______
                                             )
                                             )
and                                          )             IB File No. __________
KCK Limited and                              )
Murosa Development S. À R.L.                 )
                                             )             SCL File No.
    Transferees                              )
                                             )
Application for Consent to Transfer Control  )
of Companies Holding International Section   )
214 Authority, Blanket Domestic Section      )
214 Authority, and a Submarine Cable Landing )
License Pursuant to Section 214 of the       )
Communications Act of 1934, as Amended       )


              JOINT DOMESTIC AND INTERNATIONAL APPLICATION

       Columbia Ventures Corporation (“CVC”), KCK Limited (“KCK”) and Murosa

Development S.À R.L. (“Murosa”), (collectively the “Applicants”) hereby respectfully request

authority pursuant to Section 214 of the Communications Act of 1934, as amended (the “Act”),1,

and Sections 1.767, 63.03, 63.04 and 63.24(e) of the Federal Communications Commission’s

(“FCC” or “Commission”) Rules,2 to transfer control of Hibernia Atlantic U.S. LLC (“HB

Atlantic”) and Hibernia Media, LLC (“HB Media”) to KCK. By agreements among Murosa,

KCK, CVC and CVC III Hibernia Blocker Inc. (“CV Hibernia”), a three-stage transaction is

contemplated (the “Transaction”). The first two stages of the Transaction (referred to as “Stage

1
       47 U.S.C. §214
2
       47 CFR §§ 1.767, 63.03, 63.04, 63.24(e),


One” and “Stage Two”), as described further in Section III, will not result in any transfer of

control. In the final stage of the Transaction (“Stage Three”), as described in Section III, KCK,

through its wholly-owned, indirect subsidiary, Murosa, will have the ability, subject to receipt of

regulatory approvals and certain other conditions being satisfied, to acquire a direct controlling

interest in Hibernia NGS Limited (“Hibernia NGS”), the direct parent and sole member of each

of HB Media and HB Atlantic. Consequently, if those conditions are satisfied and KCK takes

the requisite actions, Stage Three would result in the transfer of control of HB Media and HB

Atlantic, holders of domestic and international Section 214 authority and, in the case of HB

Atlantic, a submarine cable landing license.

       Pursuant to Section 63.04(b) of the Commission’s Rules,3 the Applicants are filing a

combined application for the proposed transfer of control of HB Atlantic and HB Media. The

Applicants provide below the information required by Section 63.24(e)(2) of the Commission’s

Rules.4 Exhibit A provides the additional information requested by Section 63.04(a)(6) through

(a)(12) of the Commission’s Rules.5 Applicants also seek authority to transfer a submarine cable

landing license pursuant to Section 1.767(a)(11) of the Commission’s rules.6 Exhibit B provides

the additional information requested by Section 1.767(a)(1) through (a)(3) and (a)(8) through

(a)(9) of the Commission’s Rules.7




3
       47 C.F.R. § 63.04(b).
4
       47 C.F.R. § 63.24(e)(2).
5
       47 C.F.R. § 63.04(a)(6)-(12).
6
       47 C.F.R. § 1.767(a)(11).
7
       47 C.F.R. § 1.767(a)(1)-(3), (8)-(9)


                                                 2


I       THE APPLICATION QUALIFIES FOR STREAMLINED PROCESSING

        The Applicants request streamlined treatment of this Application pursuant to Sections

63.03 and 63.12 of the Commission’s Rules.8 This Application is eligible for streamlined

processing pursuant to Section 63.03(b)(2) of the Commission’s Rules for domestic Section 214

authority because (i) Stage Three will result in Applicants (including their affiliates, as that term

is defined in Section 3(1) of the Act) having a market share in the interstate, interexchange

market of less than 10 percent; (ii) the Applicants (including their affiliates) will provide

information services, competitive telecommunications services and exchange access services (if

any) exclusively in geographic areas served by a dominant local exchange carrier that is not a

party to the transaction; and (iii) neither the Applicants, nor any of their affiliates, are regulated

as dominant with respect to any service.

        This Application also qualifies for streamlined treatment under Section 63.12(c) of the

Commission’s Rules for international Section 214 authority because, although the Applicants,

HB Atlantic and HB Media are affiliated with several foreign carriers, none of those carriers has

market power in the foreign market nor do they possess 50% market share in the international

transport or local access markets in the foreign markets. Specifically, the Applicants, HB

Atlantic and HB Media are affiliated with Hibernia Atlantic Communications (Canada)

Company, Hibernia Atlantic Cable System Limited, Hibernia Atlantic (UK) Limited, Hibernia

Media (UK) Limited, Hibernia Atlantic (Singapore) Private Limited, Stored Data B.V.

(collectively the “Hibernia Foreign Carrier Affiliates”) all of which are wholly-owned

subsidiaries of Hibernia NGS. Hibernia Atlantic Cable System Limited, Hibernia Atlantic (UK)

Limited, Hibernia Atlantic Communications (Canada) Company, and Hibernia Atlantic (NI)


8
        47 C.F.R. §§ 63.03 and 63.12.


                                                   3


Limited (“Hibernia Submarine Cable Affiliates”) have ownership interests in the Hibernia

Atlantic cable system, a submarine cable network currently extending between the U.S., Canada,

the U.K., and the Republic of Ireland (“Ireland”).9 In conjunction with the services they provide

between the U.S., Canada, the U.K. and Ireland, the Hibernia Submarine Cable Affiliates also

provide service in Belgium, France, the Netherlands, and Germany. The Hibernia Foreign

Carrier Affiliates, individually and collectively, do not have market power in any of the foreign

countries in which they provide service, as the Hibernia Foreign Carrier Affiliates, individually

and collectively, hold less than a 50 percent market share in the international transport and the

local access markets in these countries.

       CVC, HB Atlantic and HB Media are also affiliated with Magnet Networks

(“Magnet”),10 a Dublin, Ireland based communications company that provides telephone,

Internet, and video services in and around the Republic of Ireland and in the UK, Magnet does

not have market power in Ireland or the UK and does not possess 50% market share in the

international transport or local access markets in either of such markets.

       Finally, CVC, HB Atlantic and HB Media are also affiliated with Pivotel Group Pty. Ltd.

(“Pivotel”), a satellite and mobile services provider in Australia.11 Pivotel does not hold a 50

percent market share in the international transport and the local access markets in Australia. As

such, Pivotel does not have market power in the country in which it provides its services.

       Accordingly, Applicants qualify for non-dominant treatment or a presumption of non-

dominant treatment, under Section 63.10(a)(3), on all routes. Further, the Applicant qualifies for


9
       See IB File Nos. SCL-T/C-20021213-00104 and SCL-ASG-20021213-00103, granted
       Jan. 31, 2003, in DA No. 03-335, rel. Jan. 31, 2003.
10
       Magnet is an indirect wholly-owned subsidiary of CVC.
11
       Kenneth D. Peterson, Jr., a U.S. citizen who holds 100 percent of the ownership interest
       in CVC, and CVC each hold a 50 percent ownership interest in Pivotel.


                                                 4


streamlined processing pursuant to Section 63.12(c)(1)(ii) because the Applicants are not

affiliated with any dominant U.S. carrier whose international switched or private line services

Applicants or their affiliates seek authority to resell, nor will Applicants or its affiliates be so

affiliated post-close.12

II.      DESCRIPTION OF THE APPLICANTS

         A.     CVC

         CVC is a Washington state corporation. CVC owns and operates a portfolio of

telecommunications companies and a small number of manufacturing businesses around the

world. Mr. Kenneth D. Peterson, Jr., a U.S. citizen, owns 100% of the issued and outstanding

equity of CVC. Mr. Peterson is Chief Executive Officer, Chairman and Founder of CVC. The

principal place of business of CVC and Mr. Peterson is 12503 SE Mill Plain Blvd., Suite 120,

Vancouver, WA 98684. CVC currently owns 60.1% of the issued and outstanding equity of

Hibernia NGS which, in turn, owns all of the membership interests in HB Atlantic and HB

Media.

         B.     HB Atlantic

         HB Atlantic is a limited liability company formed under the laws of the State of

Washington and is a direct, wholly-owned subsidiary of Hibernia NGS. HB Atlantic’s principal

place of business is 25 De Forest Avenue, Suite 108, Summit, New Jersey 07901. HB Atlantic is

the holder of a submarine cable landing license 13 and domestic and international Section 214

authority14 issued by the FCC. HB Atlantic provides broadband services to a variety of


12
         See 47 C.F.R. 63.12(c)(1)(ii).
13
         See File No. SCL-MOD-20020412-00022 (granted July 3, 2002) (modification of the
         Cable Landing License granted in SCL-LIC-19990804-00012).
14
         See File No. ITC-214-20090612-00283 (granted Dec. 11, 2009). Domestic authority was
         obtained by operation of rule. See 47 C.F,R, §63.01. A separate transfer of control

                                                   5



Document Created: 2019-04-08 01:04:57
Document Modified: 2019-04-08 01:04:57

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