Attachment DA 15-1307A.pdf

DA 15-1307A.pdf

ORDER

Grant PN

2015-11-13

This document pretains to ITC-T/C-20150421-00097 for Transfer of Control on a International Telecommunications filing.

IBFS_ITCTC2015042100097_1115432

Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) ARCOS-1 USA, Inc. ) A.Sur Net, Inc. ) Columbus Networks USA, Inc. ) Licensees, ) File No. SCL-T/C-20141121-00013 ) File No. SCL-T/C-20141121-00014 ) Columbus Networks, Limited ) Transferor, ) ) and ) ) Cable & Wireless Communications Plc ) Transferee ) ) Application for Transfer of Control of ) Cable Landing Licenses ) ) Columbus Networks ) File No. ITC-T/C-20141121-00304 Telecommunications Services USA, Inc. ) File No. ITC-T/C-20141121-00307 and Columbus Networks Puerto Rico, Inc. ) ) Applications for Transfer of Control ) of International Section 214 Authority ) NOTIFICATION OF PRO FORMA TRANSFER AND MINOR AMENDMENT TO APPLICATIONS Columbus Networks, Limited (“CNL”), ARCOS-1 USA, Inc. (“ARCOS”), A.Sur Net, Inc. (“ASN”), Columbus Networks USA, Inc. (“CNUSA”), Columbus Networks Telecommunications Services USA, Inc. (“CNTS”), Columbus Networks Puerto Rico, Inc. (“CNPR”), Columbus New Cayman Limited (“Columbus New Cayman”) and Cable & Wireless Communications Plc (“C&W” and together with CNL, ARCOS, ASN, CNUSA, CNTS, CNPR and Columbus New Cayman, the “Applicants”), through their undersigned counsel, hereby submit this (i) Notification of Pro Forma A/76864449.4

Transfer, pursuant to Sections 1.767(g)(7) and 63.24(d) of the Commission’s Rules, 47 C.F.R. §§ 1.767(g)(7) and 63.24(d); and (ii) minor amendment to their pending applications to reflect a new transferor thereunder. Background Applicants have previously submitted the above captioned applications (the “Applications”) seeking Commission approval for the transfer of control of the FCC licenses held by ARCOS, ASN, CNUSA, CNTS and CNPR (collectively the “Licensees”) to C&W. As noted in the Applications, pursuant to an agreement between C&W and the shareholders of Columbus International Inc. (“CII”), entered into November 6, 2014, C&W was to acquire 100% of the stock of CII, the ultimate parent company of the Licensees. Thus, C&W will ultimately acquire de jure and de facto control of CII, including the Licensees (the “Transaction”). The Transaction is governed by Barbados law. Specifically and as previously advised to the Commission, it was contemplated that the Transaction may take place in a two-step process, which is now being implemented as follows: (1) In the first step (the “First Transfer”), the shares held by CNL in ARCOS1 and CNPR, comprising the U.S. business of CII, were transferred in a pro forma transaction to Columbus New Cayman, a newly-formed holding company formed under the laws of the Cayman Islands. As noted in more detail below, Columbus New Cayman is owned by the same (pre-Transaction) ultimate majority owners and controlling parties of CII, thus there has been no change to the ultimate control of the Licensees. At the closing of the First Transfer, which occurred on March 31, 2015, CII was transferred to C&W without Columbus New Cayman,2 and thus without the 1 As noted in the Applications, ARCOS holds all the shares in ASN, CNUSA and CNTS. 2 The Applications indicated that C&W may decide to use one or more wholly-owned subsidiaries of C&W to hold its interests in CII. This in fact has occurred, and the acquirer of all of the share capital of CII (without the Licensees) was Sable Holding Limited. Sable Holding Limited is a direct wholly-owned subsidiary of Cable & Wireless Limited, 2 A/76864449.4

Licensees. All U.S.-regulated communications assets remain under the 100% ownership and control of Columbus New Cayman after the First Transfer. Control of the Licensees will be transferred to C&W only after grant of the Applications. (2) In the second step (the “Second Transfer”), following receipt of the Commission approval requested in the Applications, ownership and control of Columbus New Cayman, and thus the Licensees, would be transferred to C&W. Notification of Pro Forma Transfer and Amendment to the Applications Applicants hereby (i) notify the Commission of the completion of the First Transfer on March 31, 2015; and (ii) amend their Applications to reflect that Columbus New Cayman is the new Transferor under the Applications. For the following reasons, the First Transfer does not constitute a change of control of the Licensees under the definitions in Section 63.24 of the Commission’s Rules, 47 C.F.R. § 63.24:  The First Transfer does not result in a de jure change of control in the Licensees. Columbus New Cayman is indirectly wholly-owned by three of CII’s pre-Transaction shareholders: CVBI Holdings (Barbados) Inc. (“CHBI”), Clearwater Holdings (Barbados) Limited (“CHBL”),3 and Mr. Brendan Paddick, a Canadian citizen. CHBI and CHBL together owned and controlled over 50% of CII and currently own 86% of Columbus New Cayman. These shareholders therefore retain de jure control of the Licensees.  CII’s formerly controlling shareholders continue to have de facto control of the Licensees.4 Moreover, Mr. Brendan Paddick continues to be the chief executive officer of the Licensees. which is a direct wholly-owned subsidiary of C&W. Both Sable Holding Limited and Cable & Wireless Limited are organized under the laws of England & Wales, with the same principal business and address as C&W. This structure is reflected in the attached organizational charts. 3 CHBI and CHBL are ultimately controlled by Mr. John Risley, a Canadian citizen. 4 CII and two indirect subsidiaries of CII acquired by C&W at the First Transfer have entered into intercompany management agreements with certain of the Licensees to provide management services for the benefit of the Licensees. 3 A/76864449.4

 The First Transfer does not involve an assignment of any license or a change in the day-to- day operations of the Licensees.  There will be no change in the services offered to customers or the rates of the Licensees, and the First Transfer is completely seamless to the Licensees’ customers. As required by Sections 1.767(g)(7) and 63.24(f)(2) of the Commission’s Rules (47 C.F.R. §§ 1.767(g)(7) and 63.24(f)(2)), Applicants provide the following information required by 63.18(a) through (d) and (h) of the Commission’s Rules (47 C.F.R. § 63.18): (1) Name, address and telephone number of Applicants: Licensees: ARCOS-1 USA, Inc., A.Sur Net, Inc. Columbus Networks USA, Inc. Columbus Networks Telecommunications Services USA, Inc. Columbus Networks Puerto Rico, Inc. c/o Columbus Networks USA, Inc. 15950 West Dixie Highway North Miami Beach, FL 33162 Phone: (786) 274-7400 Fax: (786) 274-7402 Pro Forma Transferor Columbus Networks, Limited (and previous Transferor Suite 205-207 Dowell House under the Applications): Cr. Roebuck & Palmetto Streets Bridgetown, Barbados Phone: (246) 426-0417 Fax: (246) 228-5756 Pro Forma Transferee Columbus New Cayman Limited (and new Transferor Floor 4, Willow House under the Applications): Cricket Square, PO Box 268 Grand Cayman KY1-1104, Cayman Islands Phone: 242-350-8899 Fax: n/a However, Columbus New Cayman and the Licensees retain ultimate authority and control over all regulated aspects of the U.S. business, including having a robust staff in place to oversee and supervise the provision of management services by the relevant C&W entities. 4 A/76864449.4

Transferee Cable & Wireless Communications Plc5 (under the Applications): 2nd Floor 62-65 Chandos Place London, United Kingdom WC2N 4HG Phone: + 44 (0) 207 315 4000 Fax: + 44(0) 207 315 5211 (2) Place of Formation: Licensees: Each of the Licensees other than CNPR is organized under the laws of the State of Delaware. CNPR is organized under the laws of the Commonwealth of Puerto Rico. Pro Forma Transferor: CNL is organized under the laws of Barbados. Pro Forma Transferee: Columbus New Cayman is organized under the laws of the Cayman Islands. Transferee: C&W is organized under the laws of the England & Wales. (3) Correspondence concerning this Application should be sent to: For Licensees c/o Brendan Paddick and Transferors: chief executive officer Columbus Networks USA, Inc. 15950 West Dixie Highway North Miami Beach, FL 33162 Phone: (786) 274-7400 Fax: (786) 274-7402 bpaddick@columbus.co with a copy to: Andrew D. Lipman Ulises R. Pin Morgan Lewis & Bockius, LLP 2020 K St., N.W. Washington, D.C. 20006 Phone: (202) 373-6664 Fax: (202) 373-6001 u.pin@morganlewis.com 5 Please note the change of address of C&W since the filing of the Applications. 5 A/76864449.4

For Transferee: Belinda Bradberry General Counsel Cable & Wireless Communications Plc Columbus Center 1 Alhambra Plaza, Suite 1000 Coral Gables, FL 33134 Phone: (786) 606-5416 Fax: n/a belinda.bradberry@cwc.com with a copy to: Patrick S. Campbell Paul, Weiss, Rifkind, Wharton & Garrison LLP 2001 K Street, N.W., Suite 500 Washington, D.C. 20006 Phone: (202) 223-7300 Fax: (202) 223-7420 pcampbell@paulweiss.com (4) Description of the Cable Systems and International Licenses held by Licensees: ARCOS and ASN are licensees in the ARCOS-1 submarine cable system (the “ARCOS-1 Cable”). CNUSA is a licensee in the CFX-1 submarine cable system (“CFX-1 Cable”). A description of the ARCOS-1 Cable is on file with the Commission under FCC File No. SCL-LIC- 19981222-00032 and a description of the CFX-1 Cable is on file with the Commission under FCC File No. SCL-LIC-20070516-00008. Both license files are incorporated by reference herein. In turn, CNTS and CNPR provide facilities-based and resold international telecommunications services under their Section 214 licenses: FCC File Nos. ITC-214-20070220- 00077 and ITC-214-20091127-00497. Both license files are incorporated by reference herein. (5) Ownership Information: The name, address, citizenship and principal business activity of any person having a 10% or greater interest in the Licensees after the First Transfer is attached hereto as Exhibit B. Other than as previously reported to the Commission, there are no interlocking officers or directors to report. 6 A/76864449.4

Applicants certify that the First Transfer was pro forma as defined under 47 CFR § 63.24 and, together with all previous pro forma transactions, did not result in a change in the ultimate control of any of the Licensees. No de jure or de facto control of the Licensees will be transferred until the Commission grants the Applications. 7 A/76864449.4

Conclusion For the foregoing reasons, Applicants respectfully request that the Commission (i) update its files to reflect the First Transfer; (ii) amend the Applications to reflect Columbus New Cayman as the new Transferor under the Applications; and (iii) promptly grant the Applicants’ requests for consent to the transfer of control of Licensees. Respectfully submitted, /s/ Ulises R. Pin _________________________________ Andrew D. Lipman Ulises R. Pin Morgan Lewis & Bockius LLP 2020 K St., N.W. Washington, D.C. 20006 Phone: (202) 373-6664 andrew.lipman@morganlewis.com u.pin@morganlewis.com Counsel to Licensees and Columbus New Cayman /s/ Patrick S. Campbell __________________________________ Patrick S. Campbell Paul, Weiss, Rifkind, Wharton & Garrison LLP 2001 K Street, N.W., Suite 500 Washington, D.C. 20006 Phone: (202) 223-7300 pcampbell@paulweiss.com Counsel to C&W Date: April 14, 2015 8 A/76864449.4

Exhibit A Pre and Post First Transfer Charts A/76864449.4

Organization of Licensees Pre-Transaction CVBI Holdings Clearwater Holdings Brendan (Barbados) Inc. (Barbados) Limited Paddick (Barbados) (Barbados) (Canada) Controlling Shareholders of CII 53% 8% Columbus U.S. licensees Columbus Other Columbus group entities International Inc. (Barbados) CII group Columbus TTNW Holdings Inc. (Barbados) Columbus Networks, Limited (Barbados) ARCOS-1 USA, Inc. Columbus Networks, (Delaware) Puerto Rico Inc. (Puerto Rico) Columbus Networks USA, Inc. A. Sur Net, Inc. (Delaware) (Delaware) Columbus Networks Telecommunications Services USA, Inc. (Delaware)

Organization of Licensees After First Transfer Controlling Shareholders of Columbus New Cayman Columbus U.S. licensees CVBI Holdings Other Columbus New Cayman Clearwater Holdings (Barbados) Inc. Brendan group entities (Barbados) Limited (Barbados) (Barbados) Paddick (Canada) 86% 14% CP New Cayman CP New Cayman Holdco I Limited Holdco II Limited (Cayman Islands) (Cayman Islands) 50% 50% Columbus New Cayman Limited (Cayman Islands) ARCOS-1 USA, Inc. Columbus Networks, (Delaware) Puerto Rico Inc. (Puerto Rico) Columbus Networks USA, Inc. A. Sur Net, Inc. (Delaware) (Delaware) Columbus Networks Telecommunications Services USA, Inc. (Delaware)

Organization of Licensees After Second Transfer Cable & Wireless C&W group Communications Pic (England) Columbus U.S. licensees Other Columbus group entities Cable & Wireless C&W group Limited (England) Sable Holding Limited (England) Columbus International Inc. (Barbados) Columbus TTNW Holdings Inc. (Barbados) Columbus Networks, Limited (Barbados) Columbus New Cayman, Limited (Cayman Islands) ARCOS-1 USA, Inc. Columbus Networks, (Delaware) Puerto Rico Inc. (Puerto Rico) Columbus Networks USA, Inc. A. Sur Net Inc. (Delaware) (Delaware) Columbus Networks Telecommunications Services USA, Inc. (Delaware) * If the transaction is conducted in two steps, as described in Section I, Question 10, Columbus NewCo would hold the U.S. licenses until acquired by CNL in step 2. 3

Exhibit B Ownership Information As a result of the First Transfer, the ownership structure of each of the Licensees is as follows: Columbus New Cayman holds a (direct or indirect) 100% voting and equity interest in each of the Licensees.6 The following entities have a direct voting and equity interest in Columbus New Cayman: CP New Cayman Holdco I Limited Floor 4, Willow House Cricket Square, PO Box 268 Grand Cayman KY1-1104, Cayman Islands Jurisdiction: Cayman Islands Principal Business: Investment Interest: Direct holding of 50% CP New Cayman Holdco II Limited Floor 4, Willow House Cricket Square, PO Box 268 Grand Cayman KY1-1104, Cayman Islands Jurisdiction: Cayman Islands Principal Business: Investment Interest: Direct holding of 50% The following shareholders hold more than 10% of the voting and equity securities of Columbus New Cayman through their ownership in CP New Cayman Holdco I Limited and CP Cayman Holdco II Limited: CVBI Holdings (Barbados) Inc. and Clearwater Holdings (Barbados) Limited (Ultimately controlled by Mr. John Risley, a Canadian citizen) 7 Suite 205-207 Dowell House Cr. Roebuck & Palmetto Streets Bridgetown, Barbados Jurisdiction: Barbados Principal Business: Investment Interest: Direct holding of 86%8 6 ARCOS and CNPR are directly wholly-owned by Columbus New Cayman. In turn, CNUSA and ASN are directly wholly-owned by ARCOS. Finally, CNTSUSA is directly wholly-owned by ASN. 7 Mr. Risley’s ownership in these entities is through Thornvale Holdings Limited, a company incorporated under the laws of Canada, which in turn is controlled by Mr. Risley through a voting trust. A/76864449.4

Mr. Brendan Paddick 2A East Mall Drive Columbus House Freeport, Grand Bahama, The Bahamas Citizenship: Canada Principal Business: Telecommunications Interest: Direct holding of 14% There are no other shareholders of Columbus New Cayman who directly or indirectly own, or will directly or indirectly own following consummation of the First Transfer, 10% or more of the Licensee’s equity or voting rights post-consummation. Information about the ownership information of the Licensees after completion of the Second Transfer of the Transaction is included in the Applications and incorporated by reference herein. 8 CHBI holds an 80% direct interest and CHBI holds a 6% direct interest.

CERTIFICATION On behalf of ARCOS-1 USA, Inc., A.Sur Net, Inc., Columbus Networks USA, Inc., Columbus Networks Telecommunications Services USA, Inc., Columbus Networks Puerto Rico, Inc. and Columbus New Cayman Limited, I hereby certify that the foregoing Notification of Pro Forma Transfer was prepared under my direction and control. I further certify that all statements therein are true, complete, and correct to the best of my knowledge and are made in good faith and that the First Transfer described therein was pro forma under the Commission’s Rules. I certify under penalty of perjury that the foregoing is true. By: ____________________________________ Name: Brendan Paddick Title: chief executive officer of the Licensees president and chief operating officer of Columbus New Cayman Limited Date: April 14, 2015

CERTIFICATION On behalf of Cable & Wireless Communications Plc, I hereby certify that the foregoing Notification of Pro Forma Transfer was prepared under my direction and control. I further certify that all statements therein are true, complete, and correct to the best of my knowledge and are made in good faith and that the First Transfer described therein was pro forma under the Commission‘s Rules. I certify under penalty of perjury that the foregoing is true. By: Qi\) — D /‘/\ /LA L\(ZQf Name: Perley McBride) Title: CFO and Director Date: April 14, 2015



Document Created: 2015-11-13 18:08:57
Document Modified: 2015-11-13 18:08:57
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