Attachment da00.1349 SCL-AMD-20000405-00011

Attachment da00.1349

This document pretains to SCL-AMD-20000405-00011 for Amended Filing on a Submarine Cable Landing filing.

IBFS_SCLAMD2000040500011_148844

Federal Communications Commission DA 00-1349

Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of )
)
Caribbean Crossings Ltd. )
) SCL-AMD-20000405-00011
Application for a License to Land and Operate in ) SCL-LIC-20000118-00001
the United States a Private Submarine Fiber Optic )
Cable between the United States and the Bahamas )
)
)

CABLE LANDING LICENSE

Adopted: June 19, 2000 Released: June 20, 2000

Before the: Chief, Telecommunications Division

I. Introduction

1. In this order, we grant the Application of Caribbean Crossings Ltd. (Caribbean
1 2
Crossings), under the Cable Landing License Act and Executive Order No. 10530, for authority to land
and operate a private fiber optic submarine cable system to be called the Bahamas Internet Cable System
(Bahamas Internet) extending between the United States and the Bahamas. The system will be operated on
a non-common carrier basis. We find that Caribbean Crossings has provided sufficient information under
our rules to comply with the Cable Landing License Act and that it would be serve the public interest to
grant the cable landing license subject to the conditions listed below.

II. Application

2. According to the Application, as amended, Caribbean Crossings, a Bahamas corporation,
3
is a wholly-owned subsidiary of Cable Bahamas Ltd. (Cable Bahamas), also a Bahamas corporation.
Cable Bahamas is owned 32.25% by Columbus Communications Ltd., a Bahamas corporation and 20% by
the Government of the Commonwealth of the Bahamas as a beneficial owner, with nominee Bahamas
Electricity Corp. responsible for 10% of Cable Bahamas shares and nominee Bahamas
Telecommunications Corp. responsible for the other 10%. The remaining 47.75% of Cable Bahamas stock

1
An Act Relating to the Landing and Operation of Submarine Cables in the United States, 47 U.S.C. §§
34-39 (Cable Landing License Act).
2
Exec. Ord. No. 10530 reprinted as amended in 3 U.S.C. § 301.
3
The Amended Application filed April 5, 2000, amended and restated the application filed on Jan. 18,
2000 by Cable Bahamas Ltd. to Land and Operate in the United States a Private Fiber Submarine Fiber Optic
Cable Extending Between the United States and the Bahamas.

Federal Communications Commission DA 00-1349

4
is publicly traded with no entity having a five percent or greater interest in Cable Bahamas. The sole
shareholder of Columbus Communications Ltd. is Phillip Keeping, a citizen of Canada.

3. As shown in Exhibit A attached to this Order, the proposed Bahamas Internet system will
connect Boca Raton, Florida and Hawksbill, Grand Bahama Island, the Bahamas. According to the
Application, the Bahamas Internet system will be comprised of 12 fiber pairs with a capacity of 2.5 Gbps
using one fiber pair. The ultimate network capacity will be 30 Gbps using the 12 fiber pairs at 2.5 Gbps
per pair. An upgrade to the system using Wavelength Division Multiplexing (WDM) technology is
contemplated, subject to the completion of the system survey and design. The ultimate network capacity
for this upgraded design is 240 Gbps. The Applicant anticipates having the system in service during the
5
Fourth Quarter 2000.

III. Comments

4. We placed the Application on public notice on January 28, 2000 and the Amended
6
Application on public notice on April 12, 2000. We received no comments. Pursuant to Section 1.767(b)
7
of the Commission’s rules, the Cable Landing License Act, and Executive Order No. 10530, we informed
8
the Department of State of the Application. The Department of State, after coordinating with the National
Telecommunications and Information Administration and the Department of Defense, stated that it has no
9
objection to the issuance of the cable landing license.

IV. Discussion

A. Private Submarine Cable Policy

5. Caribbean Crossings proposes to operate the Bahamas Internet system as a non-common

4
The remaining 47.75% of Cable Bahamas is owned by 3,000 citizens of The Commonwealth of the
Bahamas and is publicly traded on the Bahamas Over the Counter Market with no one entity having a five
percent or greater interest in Cable Bahamas. See Caribbean Crossings Ltd. Amended Application to Land and
Operate in the United States a Private Fiber Submarine Fiber Optic Cable Extending Between the United States
and the

Bahamas, filed April 5, 2000, at Exhibit D (Amended Application).
5
See Amended Application at 3.
6
See Non Streamlined International Applications Accepted for Filing, Public Notice, Report Nos . TEL-
00183NS (rel. Jan. 28, 2000) and TEL-00215NS (rel. April 12, 2000).
7
47 C.F.R. § 1.767(b).
8
Letters from Rebecca Arbogast, Chief, Telecommunications Division, International Bureau, Federal
Communications Commission, to Steven Lett, Deputy U.S. Coordinator, Office of International Communications
and Information Policy, U.S. Department of State (Jan. 28, 2000 and April 7, 2000).
9
Letter from Malcolm R. Lee, United States Coordinator, International Communications and Information
Policy, U.S. Department of State, to Donald Abelson, Chief, International Bureau, Federal Communications
Commission (June 16, 2000).

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Federal Communications Commission DA 00-1349

carrier submarine cable system, offering bulk capacity to a specific class of eligible users, including
10
common carriers, on an original ownership, indefeasible right of use (IRU), or lease of capacity basis.
Capacity will not be offered indifferently to the public. Caribbean Crossings requests a license under the
Commission’s private submarine cable policy, which is intended to promote competition in the provision of
11
international transmission facilities. Pursuant to this policy, the Commission has authorized non-common
carrier cables where: (1) there is no legal compulsion to serve the public indifferently; and (2) there are no
reasons implicit in the nature of the operations to expect that the applicant would make capacity available
12
to the public indifferently and indiscriminately.

6. In applying the first prong of the test to submarine cable authorizations, the Commission
has stated that there will be no legal compulsion to serve the public indifferently where there is no public
13
interest reason to require facilities to be offered on a common carrier basis. This public interest analysis
has generally focused on whether an applicant will be able to exercise market power because of the lack of
14
alternative facilities. Where there are sufficient alternatives, the Commission has found that the licensee
15
will lack market power and will not be able to charge monopoly rates for cable capacity. The
Commission has found that, in those circumstances, the public interest would be served by allowing a
16
submarine cable to be offered on a non-common carrier basis.

7. Caribbean Crossings asserts that there are sufficient existing and planned facilities on the
17
route to prevent it from exercising market power in offering services to the public. Caribbean Crossings
18
also asserts that there are a number of operational or planned non-common carrier systems in the region,
including the following cables authorized by the Commission that include the Bahamas as a landing point:
19 20
(1) Bahamas II; and (2) ARCOS-1. Bahamas II is currently in service. Caribbean Crossings also

10
See Amended Application at 4.
11
See Tel-Optik, Ltd., Memorandum Opinion and Order, 100 F.C.C.2d 1033, 1040-42, 1046-48 (1985);
see also Cable & Wireless, plc, Cable Landing License, 12 FCC Rcd 8516 (1997) (Cable & Wireless).
12
See Cable and Wireless, 12 FCC Rcd at 8522; see also Optel Communications, Inc., Conditional Cable
Landing License, 8 FCC Rcd 2267 (1993); National Association of Regulatory Utility Commissioners v. FCC,
525 F.2d 630, 642 (D.C. Cir.) (NARUC I), cert. denied, 425 U.S. 992 (1976).
13
See, e.g., Cable & Wireless, 12 FCC Rcd at 8522-23.
14
Id.
15
Id.
16
Id.
17
See Amended Application at 10.
18
Id. at 6, 10.
19
See AT&T Corp., MCI International, Inc., The St. Thomas and San Juan Telephone Company, Inc., and
Telefonica Larga Distancia de Puerto Rico, Inc. Joint Application for Authorization to Construct, Acquire and
Operate Capacity in a Digital Submarine Cable System between the U.S. Mainland and the Bahamas, the
BAHAMAS II Cable System, DA 96-1234, File No. ITC-96-234 (rel. Aug. 6, 1996).

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Federal Communications Commission DA 00-1349

21
certifies it is not affiliated with any foreign carrier. Accordingly, Caribbean Crossings does not control
any bottleneck facilities in the markets the Bahamas Internet system proposes to serve.

8. No one has advocated that the public interest requires the Bahamas Internet system to be
operated on a common carrier basis. Given the unopposed evidence of the availability of alternative cables
and Caribbean Crossings' certification that it is not affiliated with any carrier on the U.S.-Bahamas route,
we find that it would not serve the public interest to impose common carrier regulation on the operations of
the Bahamas Internet system at this time. We note, however, that we maintain the ability to impose
common carrier or common-carrier-like obligations on the operations of this or any other submarine cable
22
system if the public interest so requires. Furthermore, we have always maintained the authority to
classify facilities as common carrier facilities subject to Title II of the Communications Act if the public
23
interest requires that the facilities be offered to the public indifferently.

9. Regarding the second prong of the test, we conclude that there is no reason to expect that
capacity in the proposed cable system would be held out to the public indifferently. Caribbean Crossings
states that capacity will not be sold indifferently to the user public. Rather, capacity will be assigned
pursuant to individualized decisions in particular cases, whether and on what terms to deal, and bulk
capacity will be offered to a significantly restricted class of users, including common carriers.

10. We conclude that Caribbean Crossings will not offer capacity in the Bahamas Internet
system to the public on a common carrier basis and that the public interest does not require that they do so.
Accordingly, we conclude that it is appropriate to license the Bahamas Internet system on a non-common
carrier basis. We also find that the Applicant will not provide a telecommunications service for a fee to
such class of users as to be “effectively available directly to the public” and thus will not be a
24
“telecommunications carrier” under the 1996 Act.

B. Ownership and Landing Points

11. Caribbean Crossings has provided the ownership information required by Sections
(Continued from previous page)
20
See ARCOS-1 USA, Inc., 14 FCC Rcd 10597 (1999). The ARCOS-1 cable was recently authorized by
the Commission on a non-common carrier basis, and we are not aware that it is currently in service.
21
See Amended Application at 9. We note that while Bahamas Telecommunications Corp. is the
nominee/owner of 10% of Caribbean Crossings, such an ownership interest does not create an affiliation within
the meaning of Section 63.09(e) of our rules, 47 C.F.R. § 63.09(e). We also note that we do not need to engage
in an effective competitive opportunities test for the Bahamas, which is not yet a WTO member, because
Caribbean Crossings is not affiliated with any carriers with market power in the Bahamas. See Rules and
Policies on Foreign Participation in the U.S. Telecommunications Market, Market Entry, IB 97-142, Market
Entry and Regulation of Foreign Affiliated Entities, IB 95-22, Report and Order and Order on Reconsideration,
12 FCC Rcd 23891, 23946 ¶ 130 (1997), recon. pending (Foreign Participation Order).
22
See 47 U.S.C. § 35 (providing that a license may be granted “upon such terms as shall be necessary to
assure just and reasonable rates and service in the operation and use of cables so licensed”).
23
See Foreign Participation Order, 12 FCC Rcd at 23934 ¶ 95; Cable & Wireless, 12 FCC Rcd at 8530 ¶
39; AT&T Corp. et al., Cable Landing License, 13 FCC Rcd 16232, 16237 ¶ 15 (Int’l Bur. 1998).
24
See 47 U.S.C. § 153(44) (defining “telecommunications carrier”); Cable & Wireless, 12 FCC Rcd at
8523.

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Federal Communications Commission DA 00-1349

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1.767(a)(6) and 63.18 of the Commission’s rules. Caribbean Crossings will own and control the U.S.
landing station and that portion of the Bahamas Internet system located in U.S. territorial waters.
Caribbean Crossings will also own the wet portions of the cable in international waters, in Bahamian
26
waters, and the Bahamian landing station.

12. The Applicant has stated that the landing site in Boca Raton, Florida will be located at
latitude 26º20.990’ N, longitude 80º04.213’ W and that the landing site in Hawksbill, Grand Bahama
27
Island will be located at latitude 26º29.749’ N, longitude 78º44.037’ W.

C. Environmental Impact

13. Based on the information provided by the Applicant and pursuant to the Commission’s
28
procedures implementing the National Environmental Policy Act of 1969, we find that acting on this
Application would not significantly affect the environment according to Section 1.1307(a) or (b) of the
Commission’s rules. Therefore, pursuant to Section 1.1306 of the Commission’s rules, we conclude that
grant of the requested license would not significantly affect the environment. Consequently, Caribbean
Crossings is not required to submit an environmental assessment, and this Application is categorically
excluded from environmental processing.

V. Conclusion

14. We grant Caribbean Crossings Application, as amended, for authority to land and operate
a non-common carrier fiber optic submarine cable extending between the United States and the Bahamas,
subject to the conditions listed below.

VI. Ordering Clauses

15. Consistent with the foregoing and pursuant to the Cable Landing License Act and
Executive Order 10530, we hereby GRANT AND ISSUE Caribbean Crossings a license to land and
operate a non-common carrier fiber optic cable comprised of 12 fiber pairs with a capacity of 2.5 Gbps
using one fiber pair with an ultimate network capacity will be 30 Gbps using the 12 fiber pairs at 2.5 Gbps
per pair, extending between the United States and the Bahamas. This grant is subject to all rules and
regulations of the Commission; any treaties or conventions relating to communications to which the United
States is or may hereafter become a party; any action by the Commission or the Congress of the United
States rescinding, changing, modifying, or amending any rights accruing to any person hereunder; and the
following conditions:

(1) The location of the cable system within the territorial waters of the United States, its territories
and possessions, and upon its shore shall be in conformity with plans approved by the Secretary of
the Army, and the cable shall be moved or shifted by the Licensee at its expense upon the request
of the Secretary of the Army whenever he or she considers such course necessary in the public
25
See Amended Application at 2, 7-9 and Exhibit D.
26
Letter from Mark J. Palchick, Attorney for Applicant, to Donna Christianson, Federal Communications
Commission (May 2, 2000).
27
Id.
28
47 C.F.R. §§ 1.1301-.1319.

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Federal Communications Commission DA 00-1349

interest, for reasons of national defense, or for the maintenance or improvement of harbors for
navigational purposes;

(2) The Licensee shall at all times comply with any requirements of U.S. government authorities
regarding the location and concealment of the cable facilities, buildings, and apparatus for the
purpose of protecting and safeguarding the cable from injury or destruction by enemies of the
United States;

(3) The Licensee or any persons or companies controlling it, controlled by it, or under direct or
indirect common control with it do not enjoy and shall not acquire any right to handle traffic on a
common carrier basis to or from the United States, its territories, or its possessions unless such
service be authorized by the Commission pursuant to Section 214 of the Communications Act, as
amended;

(4) The Licensee or any persons or companies controlling it, controlled by it, or under direct or
indirect common control with it shall not acquire or enjoy any right for the purpose of handling or
interchanging traffic to or from the United States, its territories, or its possessions to land, connect,
or operate cables or land lines, to construct or operate radio stations, or to interchange traffic, that
is denied to any other United States company by reason of any concession, contract, understanding,
or working arrangement to which the Licensee or any persons controlling it, controlled by it, or
under direct or indirect common control with it are parties;

(5) Neither this license nor the rights granted herein shall be transferred, assigned, or in any
manner either voluntarily or involuntarily disposed of or disposed of indirectly by transfer of
control of the Licensee to any persons, unless the Commission shall give prior consent in writing;

(6) The Commission reserves the right to require the Licensee to file an environmental assessment
or environmental impact statement should it determine that the landing of the cable at those
locations and construction of necessary cable landing stations would significantly affect the
environment within the meaning of Section 1.1307 of the Commission's procedures implementing
the National Environmental Policy Act of 1969; this license is subject to modification by the
Commission upon its review of any environmental assessment or environmental impact statement
that it may require pursuant to its rules;

(7) Pursuant to Section 2 of the Cable Landing License Act, 47 U.S.C. § 35; Executive Order No.
10530, as amended; and Section 214 of the Communications Act of 1934, as amended, 47 U.S.C.
§ 214, the Commission reserves the right to impose common carrier or common-carrier-like
regulation on the operations of the cable system if it finds that the public interest so requires;

(8) The Licensee shall maintain de jure and de facto control of the U.S. portion of the cable
system, including the cable landing stations in the United States, sufficient to comply with the
requirements of this license;

(9) This license is revocable by the Commission after due notice and opportunity for hearing
pursuant to Section 2 of the Cable Landing License Act, 47 U.S.C. § 35, or for failure to comply
with the terms of the authorizations;

(10) The Licensee shall notify the Commission in writing of the date on which the cable is placed
in service, and this license shall expire 25 years from such date, unless renewed or extended upon
proper application, and, upon expiration of this license, all rights granted under it shall be

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Federal Communications Commission DA 00-1349

terminated; and

(11) The terms and conditions upon which this license is given shall be accepted by the Licensee
by filing a letter with the Secretary, Federal Communications Commission, Washington, D.C.
20554, within 30 days of the release of the cable landing license.

16. This Order is issued under Section 0.261 of the Commission’s rules, 47 C.F.R. § 0.261,
and is effective upon release. Petitions for reconsideration under Section 1.106 or applications for review
under Section 1.115 of the Commission’s rules, 47 C.F.R. §§ 1.106, 1.115, may be filed within 30 days of
the date of public notice of this order (see 47 C.F.R. § 1.4(b)(2)).

FEDERAL COMMUNICATIONS COMMISSION

Rebecca Arbogast
Chief, Telecommunications Division
International Bureau

7

Document Created: 2019-04-13 23:33:02
Document Modified: 2019-04-13 23:33:02

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