Attachment DA00-2762 SCL-LIC-20000717-00026

Attachment DA00-2762

This document pretains to SCL-LIC-20000717-00026 for License on a Submarine Cable Landing filing.

IBFS_SCLLIC2000071700026_182946

Federal Communications Commission DA 00-2762

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

In the Matter of )
)
TYCOM NETWORKS (US) INC. )
)
and )
)
TYCOM NETWORKS (GUAM) L.L.C. )
)
Application for a License to Land and Operate ) File No. SCL-LIC-20000717-00026
a Private Fiber-Optic Cable System )
Between the United States Mainland, Hawaii, )
Guam, and Japan, )
)
THE TYCOM PACIFIC CABLE SYSTEM )

CABLE LANDING LICENSE

Adopted: December 7, 2000 Released: December 8, 2000

By the Associate Chief, Telecommunications Division, International Bureau:

I. Introduction
1
1. In this Order, we grant the Application of TyCom Networks (US) Inc. (TyCom US) and
TyCom Networks (Guam) L.L.C. (TyCom Guam) (collectively Applicants) under the Cable Landing
License Act2 and Executive Order No. 10530,3 for authority to land and operate a private fiber optic
submarine cable system to be called the TyCom Pacific Cable System (TyCom Pacific) between Los
Angeles, California; Nedonna Beach, Oregon; Honolulu, Hawaii; Piti, Guam; and Shima, Japan. This
system will be operated on a non–common carrier basis. We find that Applicants have provided sufficient
information to comply with our rules and the Cable Landing License Act, and that it would serve the public
interest to grant the cable landing license subject to the conditions listed below.

II. Application

2. TyCom US, a Nevada corporation, and TyCom Guam, a corporation under the laws of the
Territory of Guam, are wholly owned subsidiaries of TyCom Networks, a Bermuda company engaged in
the ownership and operation of a global fiber-optic network. TyCom Networks is a wholly-owned

1
See TyCom Networks (US) Inc. and TyCom Networks (Guam) L.L.C., Application for a License to Land
and Operate a Private Fiber-Optic Cable System Between the United States Mainland, Hawaii, Guam, and Japan,
filed Jul. 17, 2000 (Application).
2
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).
3
Exec. Ord. No. 10530 reprinted as amended in 3 U.S.C. § 301.

Federal Communications Commission DA 00-2762

subsidiary of TyCom Ltd., which in turn is controlled by Tyco International Ltd. (Tyco), a publicly traded
Bermuda company listed on the New York, London, and Bermuda stock exchanges. 4 Tyco has no ten
5
percent or greater beneficial shareholders. Applicants assert that TyCom US will own and operate the
California, Oregon, and Hawaii landing stations and the U.S. territory portions of TyCom Pacific between
6
those landing stations to the points which are one-half mile beyond the U.S. territorial limit. TyCom
Guam will own and operate the Piti, Guam, landing station and the Guam territory portion of TyCom
7
Pacific between the Guam station to the point which is one-half mile beyond the U.S. territorial limit. A
Japanese subsidiary of TyCom Networks will own or otherwise control the Japan landing station and own
the Japan territory portion of TyCom Pacific from the landing station to the point which is one-half mile
beyond the Japan territorial limit. TyCom Networks will itself own the remaining portions of TyCom
8
Pacific.

3. The proposed TyCom Pacific system will connect: (1) Los Angeles, California; (2)
9
Nedonna Beach, Oregon; (3) Honolulu, Hawaii; (4) Piti, Guam; and (5) Shima, Japan. According to the

4
See Application at 3, 11-12. According to the Application, Tyco filed a registration statement (which was
not yet effective at the time of the Application) with the U.S. Securities and Exchange Commission to offer up to
ten percent of the stock of TyCom Ltd. (which became the parent company of TyCom Networks upon the effective
date of the registration statement) to the public in an initial public offering. Applicants asserted that the proposed
offering would not change materially either the ownership and control of Applicants (which will be retained by
Tyco) or its foreign affiliations (of which there are none). See id. at 2, n.2. On August 30, 2000, Applicants
notified us that the pro forma transfer of control contemplated in the Application had been completed, and that
TyCom US is now a wholly-owned, indirect subsidiary of TyCom Ltd., whose stock began trading as part of an
initial public offering on July 27, 2000. Tyco still retains control of TyCom Ltd. and owns approximately 86
percent of TyCom Ltd.’s outstanding shares. See letter from Kent D. Bressie, Counsel for TyCom US, to Magalie
Roman Salas, Secretary, Federal Communications Commission (Aug. 30, 2000).
5
See Application at 11-12.
6
See id. at 10.
7
See id.
8
See id.
9
See id. at 5. According to the Application, TyCom Pacific will consist of five segments: Northern
Segment: The whole of the submarine cable system provided between and including the System Interface at the
cable station in Nedonna Beach, Oregon, and the System Interface at a new cable station to be built and owned or
controlled by the Japanese subsidiary of TyCom Networks in Shima, Japan; Western Segment: The whole of the
submarine cable system provided between and including the System Interface at the cable station in Shima, Japan,
and the System Interface at a new cable station to be built and owned or controlled by TyCom Guam in Piti, Guam;
Southern Segment A: The whole of the submarine cable system provided between and including the System
Interface at the Piti, Guam, cable station and the System Interface at a new cable station to be built and owned or
controlled by TyCom US in Honolulu, Hawaii; Southern Segment B: The whole of the submarine cable system
provided between and including the System Interface at the Honolulu, Hawaii, cable station and the System
Interface at a new cable station to be built and owned or controlled by TyCom US. (TyCom US’s ownership of the
Los Angeles, California, cable station was clarified by the Applicants in a letter from Kent D. Bressie, Counsel for
TyCom US, to Magalie Roman Salas, Secretary, Federal Communications Commission (Sept. 21, 2000)); Eastern
Segment: The whole of the submarine cable system provided between and including the System Interface at the
new cable station to be built and owned by TyCom US in Los Angeles, California, and the System Interface at a

2

Federal Communications Commission DA 00-2762

Application, TyCom Pacific will be a digital fiber-optic system with a minimum design capacity of 640
Gbps per fiber pair on all eight fiber pairs in a self-healing ring configuration consisting of the five
10
submarine cable segments. Each segment will contain eight optical fiber pairs, and each of these fiber
pairs will be capable of carrying a minimum of sixty-four wavelengths of traffic, with each wavelength
11
operating at a nominal rate of 10 Gbps. Applicants will also construct, lease, or otherwise obtain
backhaul facilities to serve: Seattle, Washington; Portland, Oregon; Los Angeles, California; and Nagoya,
Japan, to provide alternative interconnection points to the TyCom Global Network for those customers
12
requiring city-to-city transport. The System Interface is a Synchronous Transport Module One (STM-1)
digital input/output port on the digital distribution frame (excluding the digital distribution frame itself).
The capacity of each wavelength is comprised of 64 STM-1 signals (the nominal data rate of STM-1 is 155
13
megabits per second). System interfaces will also be made available at the STM-4, STM-16, and STM-
14
64 levels. Applicants anticipate that the proposed TyCom Pacific system will begin operation in May
15 16
2002. TyCom Pacific will form part of the TyCom™ Global Network.

III. Comments

5. We placed the Application on public notice on July 21, 2000.17 We received no comments.
Pursuant to Section 1.767(b) of the Commission's rules,18 the Cable Landing License Act, and Executive
Order No. 10530, we informed the Department of State of the Application.19 The Department of State,
after coordinating with the National Telecommunications and Information Administration and the
Department of Defense, stated that it has no objection to issuance of the cable landing license.20

new cable station to be built and owned or controlled by TyCom US in Nedonna Beach, Oregon.
10
See id. at 4.
11
See id. at 5.
12
See id.
13
See id. at 6.
14
See id.
15
See id.
16
See id. at 2.
17
See Non Streamlined International Applications Accepted for Filing, Report No. TEL-00262NS, Public
Notice (rel. Jul. 21, 2000).
18
47 C.F.R. § 1.767(b).
19
Letter from George S. Li, Deputy 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 (Jul. 21, 2000).
20
Letter from Richard C. Beaird, Acting U.S. Coordinator, International Communications and Information
Policy, U.S. Department of State, to Donald Abelson, Chief, International Bureau, FCC (Dec. 6, 2000).

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Federal Communications Commission DA 00-2762

IV. Discussion

A. Private Submarine Cable Policy

6. Applicants propose to operate TyCom Pacific as a non–common carrier submarine cable
system. Applicants request a license under the Commission's private submarine cable policy, which is
intended to promote competition in the provision of international transmission facilities.21 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 to the public indifferently and indiscriminately.22

7. 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
interest reason to require facilities to be offered on a common carrier basis.23 This public interest analysis
has generally focused on whether an applicant will be able to exercise market power because of the lack of
alternative facilities.24 Where there are sufficient alternatives, the Commission has found that the public
interest does not require the licensee to offer capacity on the proposed cable on a common carrier basis, but
rather that, in those circumstances, the public interest would be served by allowing a submarine cable to be
offered on a non-common carrier basis.25

21
See e.g., Tel-Optik Limited, Application for a License to Land and Operate in The United States a
Submarine Cable Extending Between the United States and the United Kingdom, File Nos. I-SCL-84-002, I-SCL-
84-003, Submarine Lightwave Cable Company, Application for a License to Land and Operate in the United
States a High Capacity Fiber Optic Digital Submarine Cable Extending between the United States and other
North American Countries, on the one hand, and European Countries, on the Other Hand, Memorandum Opinion
and Order, 100 FCC 2d 1033, 1040-42, paras. 18-20, 1046-48, paras. 27-31 (1985) (Tel-Optik Order); Cable &
Wireless, PLC, Application for a License to Land and Operate in the United States a Private Submarine Fiber
Optic Cable Extending Between the United States and the United Kingdom, File No. SCL-96-005, Cable Landing
License, 12 FCC Rcd 8516, (1997) (Cable and Wireless Order).
22
See Cable & Wireless Order, 12 FCC Rcd at 8520-23, paras. 11-17; see also Optel Communications, Inc.,
Application for a license to land and operate in the United States a submarine cable extending between Canada
and the United States, File No. SCL-92-004, 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).
23
See, e.g., Cable & Wireless Order, 12 FCC Rcd at 8522, paras. 14-15.
24
Id.
25
Id.

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Federal Communications Commission DA 00-2762

8. Applicants assert that they are not affiliated with any foreign carrier.26 In addition,
Applicants assert that there are sufficient existing or planned facilities on the routes to prevent them from
27
exercising market power in offering services to the public, including the following cables extending to
Japan: (1) TPC-3 (authorized on a common carrier basis between the U.S. mainland, Hawaii, Guam,
28
Japan, and the Philippines); (2) TPC-4 (authorized on a common carrier basis between the United States
29
mainland, Canada, and Japan); (3) TPC-5 (authorized on a common carrier basis between the United
30
States mainland, Hawaii, Guam, and Japan); (4) North Pacific (authorized on a non-common carrier basis
31
between the United States and Japan); (5) Japan-US (authorized on a non-common carrier basis between
32
the United States and Japan); (6) China-US (authorized on a non-common carrier basis between the

26
See Application at 2, n2, 12.
27
See id. at 8-9.
28
See American Telephone and Telegraph Company, et al., Application for a License to Land and Operate
in the United States Territory High Capacity Digital Submarine Cable Systems Extending Between and Among the
U.S. Mainland, the State of Hawaii, the Island of Guam, Japan, and the Island of Luzon, the Philippines, Cable
Landing License, File No. S-C-L 85-003, 1985 WL 260360 (CCB rel. Dec. 27, 1985); American Telephone and
Telegraph Company, et al., Application for Authorization Under Section 214 of the Communications Act of 1934,
as Amended, to Construct and Operate High Capacity Digital Submarine Cable Systems Extending Between and
Among the Mainland of the United States, the Island of Oahu in the State of Hawaii, the Island of Guam, Japan,
and the Island of Luzon, the Philippines, Memorandum Opinion, Order and Authorization, File No. I-T-C-85-219,
1986 WL 292522 ( CCB rel. Jan. 7, 1986). The TPC-3 cable is currently in service.
29
See American Telephone and Telegraph Company, et al, Joint Application for a License to Land and
Operate a High Capacity Digital Submarine Cable System Extending from the United States Mainland to Canada
and Japan, File No. S-C-L-89-004, Cable Landing License, 4 FCC Rcd 8040 (1989); American Telephone and
Telegraph Company, et al, Joint Application for Authorization Under Section 214 of the Communications Act of
1934, as Amended, to Construct, Acquire Capacity in and Operate a High Capacity Digital Submarine Cable
System Between and Among the United States, Canada and Japan, File No. I-T-C-89-086, Memorandum Opinion,
Order and Authorization, 4 FCC Rcd 8042 (1989). The TPC-4 cable is currently in service.
30
See American Telephone and Telegraph Company, et. al, Joint Application for a License to Land and
Operate a High Capacity Digital Submarine Cable Network Between and Among the United States Mainland, the
State of Hawaii, the Island of Guam and Japan, File No. S-C-L-92-005, Cable Landing License, 7 FCC Rcd. 7674
(CCB 1992); American Telephone and Telegraph Company, et. al, Joint Application for Authorization Under
Section 214 of the Communications Act of 1934, as Amended, to Construct, Acquire Capacity in and Operate a
High Capacity Digital Submarine Cable Network Between and Among the United States Mainland, the State of
Hawaii, the Island of Guam and Japan, File No. I-T-C-92-179, Memorandum Opinion, Order and Authorization,
7 FCC Rcd 7758 (CCB 1992). The TPC-5 cable is currently in service.
31
See Pacific Telecom Cable, Inc., Application for a License to Land and Operate in the United States a
Submarine Cable between the United States and Japan, File No. I-S-C-L-86-002, Cable Landing License, 2 FCC
Rcd 2686 (CCB 1987) (Conditional Cable Landing License). A final cable landing license was granted by the
Commission in 1989, see Pacific Telecom Cable, Inc., Application for a License to Land and Operate in the
United States a Private Submarine Cable between the United States and Japan, File No. S-C-L-86-002-(M), Cable
Landing License, 4 FCC Rcd 8061 (1989). The North Pacific, or NPC, cable is currently in service.
32
See AT&T Corp. et. al., Joint Application for a License to Land and Operate a Submarine Cable Network
Between the United States and Japan, File No. SCL-LIC-19981117-00025, Cable Landing License, 14 FCC Rcd

5

Federal Communications Commission DA 00-2762

10. No one has advocated that the public interest requires TyCom Pacific to be operated on a
common carrier basis. 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 system if the public
interest so requires.40 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 interest requires that
the facilities be offered to the public indifferently.41

B. Ownership and Landing Points

12. Applicants have provided the ownership information required by Sections 1.767(a)(6) and
63.18 of the Commission's rules.42 TyCom US and TyCom Guam are ultimately controlled by Tyco.
TyCom US will own and operate the California, Oregon, and Hawaii landing stations and the U.S. territory
portions of TyCom Pacific between those landing stations to the points which are one-half mile beyond the
U.S. territorial limit. TyCom Guam will own and operate the Piti, Guam, landing station and the Guam
territory portion of TyCom Pacific between the Guam station to the point which is one-half mile beyond the
U.S. territorial limit. A Japanese subsidiary of TyCom Networks will own or otherwise control the Japan
landing station and own the Japan territory portion of TyCom Pacific from the landing station to the point
which is one-half mile beyond the Japan territorial limit. TyCom Networks will itself own the remaining
portions of TyCom Pacific. Applicants state that they have no affiliations within the meaning of Section
63.18(h)(1)(A) of the Commission's rules.

13. Section 1.767(a) of the Commission's rules permits applicants in an initial application to
provide a general description of the landing points. The Applicant must file a specific description of any
landing point, including a map, no later than 90 days prior to construction at that landing point. We find
the Applicants’ description of the likely landing points to be sufficient to determine that the proposed cable
system will comply with the provisions of the Commission rules. Moreover, the Applicants have stated
that they will comply with Section 1.767(a)(5) of the Commission's rules by providing specific information
on the cable landing locations 90 days prior to commencing construction. The Commission will give public
notice of the filing of the specific description, and grant of the license will be considered final with respect
to that landing point unless the Commission notifies the Applicants to the contrary no later than 60 days
after receipt of the specific description of the landing point.

C. Environmental Impact

14. The Commission has found that the construction of new submarine cable systems,
individually and cumulatively, will not have a significant effect on the environment and therefore should be
43
expressly excluded from our procedures implementing the National Environmental Policy Act of 1969.

40
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").
41
See Rules and Policies on Foreign Participation in the U.S. Telecommunications Market, IB Docket Nos.
97-142 and 95-22, Report and Order and Order on Reconsideration, 12 FCC Rcd 23891, 23934, para. 95 (1997)
(Foreign Participation Order), Order on Reconsideration, FCC 00-339 (rel. September 19, 2000); Cable &
Wireless Order, 12 FCC Rcd at 8530, para. 39; China-US Order,13 FCC Rcd at 16237, para. 15.
42
See Application at 3, 10-12.
43
See 47 C.F.R. § 1.1306 Note 1 (as amended 1999); 1998 Biennial Regulatory Review —

7

Federal Communications Commission DA 00-2762

Therefore, Applicants are not required to submit an environmental assessment, and this application is
categorically excluded from environmental processing.

V. Conclusion

15. We grant the Application of TyCom US and TyCom Guam for authority to land and
operate a non-common carrier fiber optic submarine cable extending between U.S. Mainland, Hawaii,
Guam, and Japan, subject to the conditions listed below.

VI. Ordering Clauses

16. Consistent with the foregoing and pursuant to the Cable Landing License Act and
Executive Order 10530, we hereby GRANT AND ISSUE TyCom US and TyCom Guam a license to land
and operate a non–common carrier digital fiber-optic system with a minimum design capacity of 640 Gbps
per fiber pair on all eight fiber pairs in a self-healing ring configuration consisting of five submarine cable
segments, extending between the U.S. Mainland, Hawaii, Guam, and Japan. 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 Licensees at their expense upon the request of
the Secretary of the Army whenever he or she considers such course necessary in the public
interest, for reasons of national defense, or for the maintenance or improvement of harbors for
navigational purposes;

(2) Licensees 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) Licensees or any persons or companies controlling them, controlled by them, or under direct or
indirect common control with them 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) Licensees or any persons or companies controlling them, controlled by them, or under direct or
indirect common control with them 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,

Review of
International Common Carrier Regulations, IB Docket No. 98-118, Report and Order, 14 FCC
Rcd 4909 at paras. 67-69 (1999).

8

Federal Communications Commission DA 00-2762

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 Licensees or any persons controlling them,
controlled by them, or under direct or indirect common control with them 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 Licensees to any persons, unless the Commission shall give prior consent in writing;

(6) Licensees shall notify the Commission in writing of the precise locations at which the cable
will land in Los Angeles, California; Nedonna Beach, Oregon; Honolulu, Hawaii; Piti, Guam; and
Shima, Japan. Such notification with respect to any given landing location shall occur no later
than 90 days prior to commencing construction at that landing location. The Commission will give
public notice of the filing of each description, and grant of this license will be considered final with
respect to that landing location unless the Commission issues a notice to the contrary no later than
60 days after receipt of the specific description;

(7) The Commission reserves the right to require Licensees 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;

(8) Pursuant to Section 35 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;

(9) Licensees 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;

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

(11) Licensees 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
terminated; and

(12) The terms and conditions upon which this license is given shall be accepted by Licensees 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.

9

Federal Communications Commission DA 00-2762

17. This Order is issued under Section 0.261 of the Commission's rules, 47 C.F.R. § 0.261,
and is effective upon adoption. 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

Jacquelynn Ruff
Associate Chief, Telecommunications Division
International Bureau

10

Document Created: 2019-04-08 19:00:25
Document Modified: 2019-04-08 19:00:25

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