Attachment Ex Parte 04/08/05

This document pretains to SCL-MOD-20050304-00004 for Modification on a Submarine Cable Landing filing.

IBFS_SCLMOD2005030400004_432021

1200 EIGHTEENTH STREET, NW WASHINGTON, DC 20036 TEL 202.730.1300 FAX 202.730.1301 WWW.HARRISWILTSHIRE.COM 8 April 2005 BY ELECTRONIC MAIL AND HAND DELIVERY Marlene H. Dortch Office of the Secretary Federal Communications Commission 445 12th Street, S.W. Washington, D.C. 20054 Re: Application for Assignment of a Cable Landing License for the Tyco Atlantic Submarine Cable System and of a Jointly-Held Cable Landing License for the Tyco Pacific Submarine Cable System; Application for Transfer of Control of a Jointly-Held Cable Landing License for the Tyco Pacific Submarine Cable System; Application to Modify the Cable Landing License for the Tyco Pacific Submarine Cable System, File Nos. SCL-ASG-20050304-00003, SCL-T/C- 20050304-00005, SCL-MOD-20050304-00004 Dear Ms. Dortch: On April 7, 2005, Robert Aamoth of Kelley Drye & Warren LLP (representing VSNL Telecommunications (US) Inc. (“VSNL USA”)) and I (representing Tyco International Ltd., Tyco Telecommunications (US) Inc., and Tyco Networks (Guam) L.L.C. (collectively, “Tyco”)) met with Jim Ball, Kate Collins, David Krech, George Li, Susan O’Connell, and Mark Uretsky of the Commission’s International Bureau to discuss the above-referenced applications. Specifically, the parties discussed the petition to deny filed by Crest Communications Corporation (“Crest”). Tyco’s representative provided the Commission staff with background regarding the continuing efforts of Crest and its predecessors in interest to obtain commercial leverage over Tyco in unconsummated business transactions relating to Crest’s proposed Northern Lights undersea cable system (“Northern Lights”). Tyco’s representative described Crest’s ownership of two branching units on Tyco Pacific and Tyco-Crest negotiations over

Marlene H. Dortch Federal Communications Commission 8 April 2005 Page 2 various iterations of a system supply contract and indefeasible right-of-use (“IRU”) agreements. He noted that Crest’s petition was misleading, as Crest—since 2003—has not discussed with Tyco any system supply or IRU agreement options that could possibly be used to serve U.S. military operations at Shemya Island. Tyco and Crest have never executed any variations of such agreements, and Northern Lights, in any configuration, remains unbuilt. Tyco’s representative also noted that Crest’s Executive Vice President, Brian Roussell, is a former Tyco employee who played a key role in negotiations with Crest during his tenure at Tyco. Tyco terminated Roussell’s employment in 2002, and Roussell joined Crest’s corporate predecessor in interest directly from Tyco. Tyco’s representative also described how Crest had explicitly threatened Tyco executives with lobbying the U.S. Government to block Tyco’s sale of the Tyco Global Network unless Tyco would agree to construct Northern Lights and enter into related capacity agreements at “fire sale” prices. Tyco refused to accede to Crest’s pricing demands, and Crest subsequently began lobbying various U.S. Government agencies to block Tyco’s sale of TGN. Otherwise, the Tyco and VSNL USA representatives noted that Crest had raised in the Commission’s application review process the same national security and competition-related arguments that had been previously raised with—and were rejected or dismissed by—the other federal agencies reviewing the proposed transactions. Specifically, Tyco and VSNL USA representatives noted that the Department of Justice terminated early its review of the proposed transactions under the Hart-Scott-Rodino Antitrust Improvements Act of 1975. They described the highly competitive nature of the trans-Atlantic and trans-Pacific undersea cable capacity markets served by Tyco Atlantic and Tyco Pacific. Tyco and VSNL USA representatives also noted that the Departments of Defense, Justice (including the Federal Bureau of Investigation), and Homeland Security have signed a network security agreement with VSNL USA and its affiliates adopting conditions to be observed by the purchaser in order to safeguard U.S. national security and law enforcement interests. Finally, the meeting participants discussed procedural aspects of the Commission’s streamlining process. If you have any questions, please do not hesitate to contact me by telephone at +1 202 730 1337 or by email at kbressie@harriswiltshire.com. Respectfully submitted, Kent D. Bressie Counsel for Tyco International Ltd., Tyco Telecommunications (US) Inc., and Tyco Networks (Guam) L.L.C.

Marlene H. Dortch Federal Communications Commission 8 April 2005 Page 3 Attachment cc: Jim Ball Kate Collins David Krech George Li Susan O’Connell Mark Uretsky


Document Created: 2005-04-28 15:43:21
Document Modified: 2005-04-28 15:43:21
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