Attachment Fishman_Ltr and STA

This document pretains to SCL-STA-20091201-00035 for Special Temporal Authority on a Submarine Cable Landing filing.

IBFS_SCLSTA2009120100035_784371

Holland & Knight 195 Broadway | New York, NY 10007 | T 212.513.3200 | F 212.385.9010 Holland & Knight LLP | www.hklaw.com December 1, 2009 BY ELECTRONIC FILING Ms. Marlene H. Dortch Secretary Federal Communications Commission 445 12th Street, S.W. Washington, D.C. 20554 Re: FCC File Nos. SCL—LIC—20081008—00017 and ITC—214—20081008—00453 Dear Ms. Dortch: Through its counsel, ‘Office des Postes et Télécommunications de Polynésie frangaise ("OPT") urges the Commission to expedite its consideration of the applications for a cable landing license, Section 214 authority, and a related waiver for the Honotua undersea cable system, which will provide critical connectivity between the United States and French Polynesia. These applications were filed with the Commission on September 29, 2008, and amended on May 18, 2009, to address concerns previously discussed with International Bureau staff. The amended applications were placed on public notice on July 2, 2009, and no objections or other comments were filed in response. Time is of the essence, as shore—end construction has already started on the French Polynesia end (at Bora Bora). Marine installation on the French Polynesia started on November 24, 2009. OPT also believes the time is ripe for action, as the Commission now has a complete record, including fulsome responses and proposed accommodations to address concerns expressed by International Bureau staff. By seeking a waiver of Section 63.10(c)(1) premised on international comity, OPT does not seek to evade Commission regulations. To the contrary, OPT has proposed to comply with a variety of alternative safeguards which would impose significant burdens and costs on OPT. OPT has nevertheless offered to abide by these safeguards as it believes they address the substantive core of International Bureau staff concerns and would serve OPT‘s overriding objective of timely Commission licensing for the project. Given the conflict between French Polynesia‘s public—integrity law for government—owned enterprises and Section 63.10(c)(1), OPT believes that it has proposed a workable, good—faith compromise and asks that the Commission act on that proposal. Moreover, OPT does not believe that this waiver request will trigger a wave of "me—too" waiver requests with respect to Section 63.10(c)(1). The circumstances in this particular case are

Ms. Marlene H. Dortch Federal Communications Commission December 1, 2009 Page 2 highly unusual—where longstanding foreign law has been interpreted to preclude compliance with a Commission rule, and where the longstanding foreign law was adopted for legitimate reasons wholly unrelated to the Commission rule. Concurrent with this letter, OPT has filed a request for Special Temporary Authority ("STA") under the Cable Landing License Act and Section 214 of the Communications Act of 1934, as amended. OPT has sought the STA request to address an immediate concern about the costs of suspending installation of the Tahiti—Hawaii segment after construction of that segment commences. Notwithstanding any grant of the STA request, OPT respectfully requests that the Commission proceed to act expeditiously on the underlying applications and waiver request. Installation of the Tahiti—Hawaii segment is scheduled to commence on the Tahiti end on December 16, 2009, and cannot easily be suspended without incurring significant costs. Honotua is still scheduled to enter into commercial service between May and July 2009. Should you have any questions or require further information, please contact the undersigned. Respectfully submitted, UAE ‘ Kent D. Bressie Eric Fishman WILTSHIRE & GRANNIS LLP HoLLAND & KNIGHT LLP 1200 18th Street, N.W., Suite 1200 195 Broadway Washington, D.C. 20036—2516 New York, New York 10007—3189 +1 202 730 1337 tel +1 212 513 3268 tel Counselfor Office des Postes et Counselfor Office des Postes et Télécommunications de Polynésie francaise Télécommunications de Polynésie francaise ce: Priya Aiyar Jim Ball David Krech Susan O‘Connell Steve Lett (U.S. Department of State/CIP) Hillary Morgan (DISA) Josephine Arnold (U.S. Department of Commerce/NTIA¥) # 9001789_vi

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matters of OFFICE DES POSTES ET TELECOMMUNICATIONS DE POLYNESIE FRANCAISE, Application for License to Land and Operate a File No. SCL—LIC—20081008—00017 Fiber—Optic Submarine Cable System between the United States and French Polynesia Application for Section 214 Authority to File No. ITC—214—20081008—00453 Construct and Operate a Fiber—Optic Submarine Cable System on a Common Carrier Basis Linking the United States and French Polynesia THE HoNOTUA SYSTEM REQUEST FOR SPECIAL TEMPORARY AUTHORITY Office des Postes et Télécommunications de Polynésie frangaise ("OPT"), by its attorneys, and pursuant to 47 U.S.C. §§ 34—39 and 214 and 47 C.F.R. § 63.25, hereby requests special temporary authority to begin constructing and testing the Honotua submarine fiber optic system prior to the Commission‘s grant of OPT‘s pending applications for a cable landing license and international Section 214 authorization to construct, land and operate the Honotua network. Specifically, OPT seeks special temporary authority beginning no later than December 16, 2009, and ending 180 days from grant, or until such date as the Commission grants OPT‘s underlying applications, whichever event occurs first. Construction must commence on or about this date in order to avoid potential costly delays as set forth below.

1. BACKGROUND On October 8. 2008 OPT filed applications for authority to construct, land and operate Honotua, a high—capacity fiber optic submarine cable that will link the United States and French Polynesia. The Commission placed the applications, as amended, on Public Notice on July.2, 2009.‘ No party has opposed the grant of the applications. As indicated in the attached certificate of service, OPT has served copies of the STA request on the Executive Branch agencies. I. THE GRANT OF AN STA WILL SERVE THE PUBLIC INTEREST OPT respectfully submits that grant of this request would serve the public interest, convenience and necessity. As the Commission is aware, the proposed Honotua system, once constructed, will be the first submarine fiber optic cable network linking the United States and French Polynesia. Designed to provide faster, more reliable, and more affordable international broadband internet connectivity, it will furnish vital services critical to the economic development in French Polynesia, and to planned initiatives in scientific research, distance learning and telemedicine. OPT requires an STA in order to avoid construction delays on the Hawaii end and significant costs associated with such delay. OPT‘s contractor Alcatel—Lucent Submarine Networks ("ASN®‘) commenced marine installation on the French Polynesia end on November 24th, 2009, . Installation of the Tahiti—Hawaii segment is scheduled to commence on the Tahiti end on December 16, 2009. Progressing northward from Tahiti, construction within the U,‘S' territorial sea off the coast of Hawaii is scheduled to commence no later than February 1, 2010. Installation of the Tahiti—Hawaii segment cannot easily be suspended without incurring | Non—Streamlined Submarine Cable Landing License Applications Accepted for Filing, Public Notice Report No. SCL—00089NS, released July 2, 2009; Non—Streamlined International Applications/Petitions Accepted for Filing, Public Notice Report No. TEL—O1371NS, released July 2, 2009. 12.

significant costs To suspend installation activities outside the U.S. territorial sea, ASN would need to cut the cable, tether it to a buoy, offload cable and equipment at a depot (most likely in Fiji) and undertake significant additional transit. Remobilization would require similar undertakings. Under the terms of its supply contract with ASN, OPT would bear the cost of these delay—related activities, which is estimated at an additional US$3,374,867, as reflected in the attached spreadsheet. Consequently, OPT seeks grant of this STA request before ASN‘s cable ship, Te de Ré, departs Tahiti on December 16, 2009. III. THE FCC HAS AUTHORITY TO GRANT AN STA The Commission has ample authority to issue an STA authorizing construction and testing of a submarine cable prior to the grant of a cable landing license and associated Section 214 authority. It has exercised that authority on numerous occasions and should also do so in this case. Neither the Cable Landing License Act nor Executive Order 10,520 (delegating submarine cable licensing authority from the President to the Commission, subject to Executive Branch review) nor Section 214 of the Communications Act of 1934, és amended, limits the Commission‘s ability to issue an STA to permit construction or testing prior to grant of a cable landing license and associated Section 214 authority." The Commission has previously granted STAs in analogous situations." OPT seeks the same authority here: to construct, land and test the Honotua system. It will not connect the cable on the U.S. end or use Honotua to transport traffic on the Honotua 2 See 47 U.S.C. §§ 34—39; Executive Order 10,520; 47 U.S.C. § 214. 3 See, e.g., Application for Special Temporary Authority, Bharti Airtel Limited et al., File No. SCL—STA— 20090401—00007) (STA granted to test and operate the Unity System); Application for Special Temporary Authority, Cedar Cable Ltd., File No. SCL—LIC—20081209—00020 (granted December 18, 2008) (STA granted to test and operate the CB—1 Cable System); Application for Special Temporary Authority, Asia America Gateway Consortium, File No. SCL—STA—20080509—00213 (granted May 16, 2008); Application for Special Temporary Authority, Trans—Pacific Express Cable Network Consortium, File No. SCL—STA—20070906—00016); In re Williams Communications, Inc. et al., 15 FCC Red 19610 (IB 2000) (a new license was authorized to operate two cable systems pursuant to an STA prior to formal approval being given by the Executive Branch). 13 _

system absent the Commission‘s grant of a cable landing license and associated Section 214 authority. OPT acknowledges that grant of this request will not prejudice action by the Commission on OPT‘s underlying applications and that any authority granted pursuant to this request is subject to cancellation or modification upon notice.

IV. CONCLUSION As demonstrated above, Commission grant of an STA is consistent with the Cable Landing License Act and the Communications Act and will serve the public interest, convenience and necessity. OPT respectfully urges the Commission to grant this request as soon as possible and no later than December 16, 2009 Respectfully submitted, OFFICE DES POSTES ET TELECOMMUNICATIONS DE POLYNESIE FRANGCAISE SuuAka— Eric Fishman Jean—Paul Barral, Chairman HoLLAND & KNIGHT LLP 195 Broadway P.O. Box 605 New York, New York 10007—3189 Papeete, 98713 Tel: 212—513—3268 Tahiti, French Polynesia Counselfor Office des Postes et Télécommunications de Polynésie frangaise Kent D. Bressie WILTSHIRE & GRANNIS LLP 1200 18th Street, N.W. Suite 1200 Washington, D.C. 20036—2516 +1 202 730 1337 tel Counselfor Office des Postes et Télécommunications de Polynésie frangaise December 1, 2009

Case study of marine operation if no right to install Honotua cable in February 2010 Cut and stream 2 | f Transit to Suva (11 10 2783 / Clear 1 l § Offload ESLq Transit to 7B Transitto —ILIJEAIES Clear in Suva Beach Load Transit to wa Clear wl & m|—}— Transit to Recover and Total before 10% weather Number of extra 4 lte de Ré contract daily rate (€) 54,648 Total marine extra cost (€) 2,227,777 Total marine extra cost (USD) 3,319,388 ——— Loading costs (USD) 20,000 Port call fees (USD) 10,000 Jointing box (USD) 25479 Total operation extra cost (USD) 3,374,867 Limit of US territorial waters (bathymetric profile not suitable for cable cut) *k ies .. +. Suitable for cable cut {65Km i—

CERTIFICATION OF OFFICE DES POSTES ET TELECOMMUNICATIONS The undersigned respectfully certifies under penalty of perjury that he has read the foregoing Application for Special Temporary Authority and that— therein,. andin this certification, are true and correct. By: Jean—Paul Barral Chairman — Office des postes et télécommunications de Polynésie frangaise PO BOX 605 Papeete 98713 Tahiti. French Polynesia November 30. 2009 }S(f’

CERTIFICATE OF SERVICE I, Eric Fishman, hereby certify that I have served copies of the foregoing Request for Special Temporary Authority, by hand— or overnight delivery on this 1° of December 2009, to the following: Ambassador Philip Verveer _ U.S. Coordinator Int‘l Communications & Information Policy Bureau of Economic, Energy & Business Affairs U.S. DEPARTMENT OF STATE EB/CIP : Room 4826 2201 C Street, N.W. Washington, D.C. 20520—5818 Kathy Smith Chief Counsel U.S. DEPARTMENT OF COMMERCE/NTIA 14th Street and Constitution Avenue, N.W. Room 4713 Washington, D.C. 20230 Hillary Morgan Deputy General Counsel, Regulatory & International Law Code RGC DEFENSE INFORMATION SYSTEMS AGENCY 701 South Courthouse Road Arlington, Virginia 22204 ClzAa— Eric Fishman #9001728_vi


Document Created: 2009-12-01 12:49:37
Document Modified: 2009-12-01 12:49:37
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