Attachment AS-HI_Petition_and_A

AS-HI_Petition_and_A

PETITION

Petition

2010-08-23

This document pretains to SCL-T/C-20100322-00006 for Transfer of Control on a Submarine Cable Landing filing.

IBFS_SCLTC2010032200006_836413

                                         Before the
                           FEDERAL COMMUNICATIONS COMMISSION
                                    Washington, D.C. 20554

In the Matter of                                          )
                                                          )
American Samoa Hawaii Cable, LLC,                         )
                                                          ) File No. SCL-LIC-20090814-00016
Pac-Rim Redeployment, LLC,                                )
                                                          )
and                                                       )
                                                          )
AST Telecom, LLC,                                         )
d/b/a Blue Sky Communications                             )
                                                          )
Application for a License to Land and                     )
Operate a Private Fiber-Optic Cable System                )
Connecting Hawaii, American Samoa and                     )
Samoa                                                     )

                                PETITION TO ADOPT CONDITIONS TO
                                 AUTHORIZATIONS AND LICENSES

           The Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”)

(collectively, the “Agencies”), submit this Petition to Adopt Conditions to Authorizations and

Licenses (“Petition”), pursuant to Section 1.41 of the Federal Communications Commission

(“Commission”) rules.1 Through this Petition, the Agencies advise the Commission that they

have no objection to the Commission approving the authority sought in the above-referenced

proceeding, provided that the Commission conditions its approval on the agreement of American

Samoa Hawaii Cable, LLC and AST Telecom, LLC (collectively, the “Applicants”) to abide by

the commitments and undertakings set forth in the January 9, 2009 agreement (the

“Agreement”), which is attached hereto.

           In the above-referenced proceeding, the Applicants petitioned the Commission for

authority under the Cable Landing License Act of 19212 and Executive Order 105303 to


1
    47 C.F.R. § 1.41.
2
    Pub. Law No. 8, 67th Congress, 42 Stat. 8 (1921); 47 U.S.C. §§ 34-39.


construct, land and operate a private fiber-optic submarine cable system linking Samoa and the

United States.

           The Commission has long recognized that law enforcement, national security, and public

safety concerns are part of its public interest analysis, and has accorded deference to the views of

other U.S. government agencies with expertise in those areas. See In the Matter of Comsat

Corporation d/b/a Comsat Mobile Communications, etc., 16 FCC Rcd. 21,661, 21707 ¶ 94

(2001).

           After discussions with representatives of the Applicants in connection with the above-

referenced proceeding, the Agencies have concluded that the additional commitments set forth in

the Agreement will help ensure that the Agencies and other entities with responsibility for

enforcing the law, protecting the national security, and preserving public safety can proceed

appropriately to satisfy those responsibilities. Accordingly, the Agencies advise the Commission

that they have no objection to the Commission granting the application in the above-referenced

proceeding, provided that the Commission conditions its consent on compliance by the

Applicants with the commitments set forth in the Agreement.

           The Agencies are authorized to state that the Applicants do not object to the grant of this

Petition.

                                                           Respectfully submitted,


/s/ Charles M. Steele                                      /s/ Stewart A. Baker
Charles M. Steele                                          Stewart A. Baker
Chief of Staff                                             Assistant Secretary for Policy
National Security Division                                 U.S. Department of Homeland Security
United States Department of Justice                        3801 Nebraska Avenue, N.W.
950 Pennsylvania Avenue, N.W.                              Washington, DC 20528
Washington, DC 20530

January 9, 2009

3
    Exec. Ord. No. 10530 § 5(a) (May 10, 1954), reprinted as amended in 3 U.S.C. § 301.


                                                          2


                                          AGREEMENT

        THIS AGREEMENT (the “Agreement”) is made as of the date of the last signature
affixed hereto, by and between American Samoa Hawaii Cable, LLC and AST Telecom, LLC
(referred to collectively as the “Applicants”) on the one hand, and the U.S. Department of
Homeland Security (“DHS”), on the other (each referred to individually as a “Party” and
collectively as the “Parties”).

                                            RECITALS

       WHEREAS, U.S. communication systems are essential to the ability of the U.S.
Government to fulfill its responsibilities to the public to preserve the national security of the
United States, to enforce the laws, and to maintain the safety of the public;

       WHEREAS, the U.S. Government has an obligation to the public to ensure that U.S.
communications and related information are secure in order to protect the privacy of U.S.
persons and to enforce the laws of the United States;

        WHEREAS, it is critical to the well being of the Nation and its citizens to maintain the
viability, integrity, and security of the communications systems of the United States (see e.g.,
Executive Order 13231, Critical Infrastructure Protection in the Information Age, and Homeland
Security Presidential Directive / HSPD-7, Critical Infrastructure Identification, Prioritization, and
Protection);

       WHEREAS, protection of Classified and Sensitive Information is also critical to U.S.
national security;

        WHEREAS, American Samoa Hawaii Cable, LLC, Pac-Rim Redeployment, LLC and
AST Telecom, LLC, all companies organized under the laws of Delaware, have jointly applied1
to the Federal Communications Commission (“FCC”) for a license to land and operate a private
fiber-optic submarine cable network (the “American Samoa-Hawaii Cable System” or “ASHC
System”) between United States and the Independent State of Samoa, with landing stations at
Keawaula in Hawaii, Iliili in American Samoa, and Apia, Samoa;

      WHEREAS, American Samoa Hawaii Cable, LLC will acquire all ownership rights in
the ASHC System held by Pac-Rim Redeployment, LLC upon the commissioning of the ASHC
System, including the wet-link and shore-end segments of the ASHC System;

       WHEREAS, the Applicants will own and operate a landing station and Network
Operations Center in Iliili, and will lease space at an existing landing station in Keawaula from
AT&T, Inc., but will not own or control the foreign landing station in Apia;

       WHEREAS, the ASHC System will provide telecommunications services to and from
the United States which are subject to U.S. privacy and electronic surveillance laws;

       WHEREAS, the Applicants will have direct physical and electronic access to a variety of

1
       Federal Communications Commission File No. SCL-LIC-20080814-00016, filed on August 13, 2008.
                                                   1


customer and end-user information that is subject to U.S. privacy and electronic surveillance
laws;

       WHEREAS, the Applicants have an obligation to protect from unauthorized disclosure
the contents of wire and electronic communications to and from the United States under U.S.
law;

        WHEREAS, DHS will request that the FCC’s grant of the Applicants’ pending
submarine cable landing license application be made subject to resolution of issues relating to
national security, law enforcement, and public safety, and whereas the Applicants have agreed to
enter into this Agreement with DHS to address issues raised by DHS and to jointly petition that
the FCC condition the requested authorization on compliance with this Agreement;

        NOW THEREFORE, the Parties are entering into this Agreement to address national
security, law enforcement and public safety concerns.

                           ARTICLE 1: DEFINITION OF TERMS

As used in this Agreement:

1.1     “Applicants” means American Samoa Hawaii Cable, LLC and AST Telecom, LLC, and
all Affiliates and all subsidiaries.

1.2      “Access” or “Accessible” means the ability to physically or logically undertake any of
the following actions: (a) read, divert, or otherwise obtain non-public information or technology
from or about software, hardware, a system or a network; (b) add, edit or alter information or
technology stored on or by software, hardware, a system or a network; and (c) alter the physical
or logical state of software, hardware, a system or a network (e.g., turning it on or off, changing
configuration, removing or adding components or connections).

1.3  “Affiliate” means any entity that American Samoa Hawaii Cable, LLC or AST Telecom,
LLC owns or Controls.

1.4    “Cable System” means all equipment, facilities and services pertaining to the ASHC
System, and any other cable system owned or Controlled by the Applicants that lands in the
United States; and all network operations centers ("NOCs").

1.5     “Classified Information” shall have the meaning indicated in Executive Order 12958,
as amended by Executive Order 13292, or any successor executive order, or the Atomic Energy
Act of 1954, or any statute that succeeds or amends the Atomic Energy Act of 1954.

1.6     “Control” and “Controls” means the power, direct or indirect, whether or not exercised,
and whether or not exercised or exercisable through the ownership of a majority or a dominant
minority of the total outstanding voting securities of an entity, or by proxy voting, contractual
arrangements, or other means, to determine, direct, or decide matters affecting an entity; in
particular, but without limitation, to determine, direct, take, reach, or cause decisions regarding:


                                                 2


       (a)    the sale, lease, mortgage, pledge, or other transfer of any or all of the principal
              assets of the entity, whether or not in the ordinary course of business;

       (b)    the dissolution of the entity;

       (c)    the closing and/or relocation of the production or research and development
              facilities of the entity;

       (d)    the termination or nonfulfillment of contracts of the entity;

       (e)    the amendment of the articles of incorporation or constituent agreement of the
              entity with respect to the matters described in Section 1.6(a) through (d); or

       (f)    either of the Applicants’ obligations under this Agreement.

1.7    “CPNI” means Consumer Proprietary Network Information.

1.8     “De facto” and “de jure” control have the meanings provided in 47 C.F.R. § 1.2110.

1.9     “Domestic Communications” means:            (a) Wire Communications or Electronic
Communications (whether stored or not) from one U.S. location to another U.S. location; and (b)
the U.S. portion of a Wire Communication or Electronic Communication (whether stored or not)
that originates or terminates in the United States.

1.10 “Domestic Communications Infrastructure” means any portion of the Cable System
used by or on behalf of the Applicants that is: (a) transmission, switching, bridging and routing
equipment (including software and upgrades) to provide, process, direct, control, supervise or
manage Domestic Communications; (b) facilities and equipment physically located in the United
States; and (c) facilities to control the equipment described in (a) and (b) above, but does not
include facilities controlled by entities with which the Applicants have contracted for peering,
interconnection, roaming, long distance, or other similar arrangements on which the Parties may
agree, nor equipment or facilities used by service providers other than the Applicants that are:

       (1)    interconnecting communications providers; or

       (2)    providers of services or content that are:

              (A)     accessible using the communications services of the Applicants; and

              (B)     available in substantially similar form and on commercially reasonable
                      terms through communications services of companies other than the
                      Applicants.

1.11 “Effective Date” means the date this Agreement becomes effective, which is the date this
Agreement is signed by the last Party to sign it (as indicated by the date stated opposite that
Party’s signature).

1.12   “Electronic Communication” has the meaning given it in 18 U.S.C. § 2510(12).
                                                3


1.13 “Electronic Surveillance,” for the purposes of this Agreement, includes: (a) the
interception of wire, oral, or electronic communications as defined in 18 U.S.C. §§ 2510(1), (2),
(4) and (12), respectively, and electronic surveillance as defined in 50 U.S.C. § 1801(f); (b)
Access to stored wire or electronic communications, as referred to in 18 U.S.C. § 2701 et seq.;
(c) acquisition of dialing, routing, addressing, or signaling information through pen register or
trap and trace devices or other devices or features capable of acquiring such information pursuant
to law as defined in 18 U.S.C. § 3121 et seq. and 50 U.S.C. § 1841 et seq.; (d) acquisition of
location-related information concerning a service subscriber or facility; (e) preservation of any of
the above information pursuant to 18 U.S.C. § 2703(f); and (f) Access to, or acquisition,
interception, or preservation of, wire, oral, or electronic communications or information as
described in (a) through (e) above and comparable state laws.

1.14   “Foreign” where used in this Agreement, whether capitalized or lower case, means non-
U.S.

1.15 “Government,” “Government Authority,” or “Government Authorities” means any
government, or any governmental, administrative, or regulatory entity, authority, commission,
board, agency, instrumentality, bureau or political subdivision and any court, tribunal, judicial or
arbitral body.

1.16   “Intercept” or “Intercepted” has the meaning defined in 18 U.S.C. § 2510(4).

1.17 “Lawful U.S. Process” means lawful U.S. federal, state, or local Electronic Surveillance
or other court orders, processes, or authorizations issued under U.S. federal, state, or local law
for physical search or seizure, production of tangible things, or Access to or disclosure of
Domestic Communications, Transactional Data, or Subscriber Information.

1.18 “Management of the Applicants” means the companies’ officers and members of their
Board of Directors.

1.19 “Network Management Information” means network management operations plans,
processes and procedures; descriptions of the placement of NOC(s) and linkages (for service
offload or administrative activities) to other domestic and international carriers, ISPs and other
critical infrastructures; descriptions of networks and operations processes and procedures for
management control and relation to the backbone infrastructure(s) including other service
providers; description of any unique or proprietary control mechanisms as well as operating and
administrative software; network performance information; and network access ability and
procedures..

1.20      “Principal Equipment” means the primary electronic components of a submarine cable
system, to include the hardware used at the NOC(s), landing station(s) and the cable itself, such
as servers, repeaters, submarine line terminal equipment (SLTE), system supervisory equipment
(SSE), power feed equipment (PFE), tilt and shape equalizer units (TEQ/SEQ), optical
distribution frames (ODF), and synchronous optical network (SONET), synchronous digital
hierarchy (SDH), wave division multiplexing (WDM), dense wave division multiplexing
(DWDM), coarse wave division multiplexing (CWDM) or optical carrier network (OCx)
equipment, as applicable.
                                                 4


1.21    “Pro forma assignments” or “pro forma transfers of control” are transfers that do not
involve a substantial change in ownership or control as provided by Section 63.24 of the FCC's
Rules (47 C.F.R. § 63.24).

1.22 “Sensitive Information” means information that is not Classified Information regarding:
(a) the persons or facilities that are the subjects of Lawful U.S. Process; (b) the identity of the
Government Authority or Government Authorities serving such Lawful U.S. Process; (c) the
location or identity of the line, circuit, transmission path, or other facilities or equipment used to
conduct Electronic Surveillance; (d) the means of carrying out Electronic Surveillance; or (e) the
type(s) of service, telephone number(s), records, communications, or facilities subjected to
Lawful U.S. Process; as well as all other information that is not Classified Information but is
designated in writing by an authorized official of a federal, state, or local law enforcement
agency or a U.S. intelligence agency as “Sensitive Information” of some type recognized by the
agency involved. The designation “Sensitive” as used in this Section includes but is not limited
to information marked or labeled “Official Use Only,” “Limited Official Use Only,” “Law
Enforcement Sensitive,” “Sensitive Security Information,” “Sensitive but Unclassified,”
“Controlled Unclassified Information,” “Protected Critical Infrastructure Information,” or other
similar designations.

1.23 “Subscriber Information” means all records or other information relating to customers
or subscribers of the Applicants of the type referred to and Accessible subject to procedures
specified in 18 U.S.C. § 2703(c) or (d) or 18 U.S.C. § 2709. Such information shall also be
considered Subscriber Information when it is sought pursuant to the provisions of other Lawful
U.S. Process.

1.24 “Transactional Data” includes the following when associated with a Domestic
Communication but does not include the content of any communication:

       (a)     “call identifying information,” as defined in 47 U.S.C. § 1001(2), including
               without limitation the telephone number or similar identifying designator;

       (b)     any information related to the sender or recipient of that Domestic
               Communication, including, without limitation subscriber identification, called
               party number, calling party number, start time, end time, call duration, feature
               invocation and deactivation, feature interaction, registration information, user
               location, diverted to number, conference party numbers, post-cut-through dialed
               digit extraction, in-band and out-of-band signaling, and party add, drop and hold;

       (c)     any information relating specifically to the identity and physical address of a
               customer or subscriber, or account payer, or the end-user of such customer or
               subscriber, or account payer, or associated with such person relating to all
               telephone numbers, domain names, Internet Protocol (“IP”) addresses, Uniform
               Resource Locators (“URLs”), other identifying designators, types of services,
               length of service, fees, usage including billing records and connection logs, and
               the physical location of equipment, if known and if different from the location
               information provided under (e) below;

                                                  5


       (d)    the time, date, size, or volume of data transfers, duration, domain names, Media
              Access Control (“MAC”) or IP addresses (including source and destination),
              URL’s, port numbers, packet sizes, protocols or services, special purpose flags, or
              other header information or identifying designators or characteristics, including
              electronic mail headers showing From: and To: addresses; and

       (e)    as to any mode of transmission (including mobile transmissions), and to the extent
              permitted by U.S. laws, any information indicating as closely as possible the
              physical location to or from which a Domestic Communication is transmitted.

1.25     “United States,” “US,” or “U.S.” means the United States of America, including all of
its States, districts, territories, possessions, commonwealths, and the special maritime and
territorial jurisdiction of the United States.

1.26    “Wire Communication” has the meaning given it in 18 U.S.C. § 2510(1).

1.27 Other Definitional Provisions. Other capitalized terms used in this Agreement and not
defined in this Article shall have the meanings assigned them elsewhere in this Agreement. The
definitions in this Agreement are applicable to the singular as well as the plural forms of such
terms and to the masculine as well as to the feminine and neuter genders of such term.
Whenever the words “include,” “includes,” or “including” are used in this Agreement, they shall
be deemed to be followed by the words “without limitation.”

ARTICLE 2: OPERATIONS, FACILITIES, INFORMATION STORAGE AND ACCESS

2.1    Operational Requirements. With respect to the operation of the Cable System, the
Applicants agree as follows:

       (a)    the Applicants shall have the ability to promptly and effectively interrupt in whole
              or in part traffic to and from the United States on the Cable System by disabling
              or disconnecting circuits at the U.S. cable landing;

       (b)    the Applicants shall have the ability to isolate the U.S. landing stations and the
              connecting cable segment from the rest of the Cable System and to restore and
              continue service on this segment, separate from the rest of the Cable System; and

       (c)    the Cable System shall be configured so that the NOC will be able to view the
              status of the Cable System and individual cable segments.

2.2    Compliance with Lawful U.S. Process. The Applicants shall configure the Domestic
Communications Infrastructure to be capable of complying, and the employees of the Applicants
in the United States will have unconstrained authority to comply, in an effective, efficient, and
unimpeded fashion, with:

       (a)    lawful U.S. Process;

       (b)    the orders of the President of the United States in the exercise of his/her authority
              under the Cable Landing License Act of 1921, as amended (47 U.S.C. §§ 34-39)
                                                6


              and Executive Order 10530 § 5(a), reprinted as amended in 3 U.S.C. § 301, and §
              706 of the Communications Act of 1934, as amended, (47 U.S.C. § 606); and

       (c)    National Security and Emergency Preparedness rules, regulations and orders
              issued pursuant to the Communications Act of 1934, as amended (47 U.S.C.
              § 151 et seq.).

2.3    Cable System Infrastructure. Within ten (10) business days after the Effective Date
the Applicants shall provide to DHS a finalized list of:

       (a)    the Principal Equipment used in all the Cable System, to include information on
              the Principal Equipment’s manufacturer and model; and

       (b)    all contracts held by the Applicants for the maintenance and security of the Cable
              System.

The Applicants shall provide at least fifteen (15) business days’ advance written notice to DHS
prior to performing any maintenance, repair, or replacement that would result in any
modification to the Principal Equipment list for the Cable System. The Applicants need not
comply with the advance notice requirement for any maintenance, repair or replacement that is
undertaken pursuant to a bona fide emergency and is necessary to ensure the continued
operability of the Cable System; however, in such circumstances the Applicants shall provide
advance notice of the modification to DHS if practicable, and if impracticable, within fifteen
(15) business days after the modification of the Principal Equipment located at Keawaula and
(30) business days after the modification for all other Principal Equipment. The Applicants
shall provide at least thirty (30) business days’ advance written notice to DHS prior to making
any modifications to its list of contracts for Cable System maintenance and security. The
Applicants agree to make the Network Management Information available to DHS upon request.
The Applicants shall negotiate in good faith to resolve any national security, law enforcement or
public safety concerns DHS may raise with respect to the Cable System’s Principal Equipment,
contracts, and Network Management Information.

2.4    Information Storage and Access. Unless otherwise agreed to by the Parties, the
Applicants shall make the following available in the United States:

       (a)    stored Domestic Communications, if such communications are stored by or on
              behalf of either of the Applicants for any reason;

       (b)    any Wire Communications or Electronic Communications received by, intended
              to be received by, or stored in the account of a domestic customer or subscriber of
              either of the Applicants, if such communications are stored by or on behalf of
              either of the Applicants for any reason;

       (c)    Transactional Data, if such data are stored by or on behalf of either of the
              Applicants for any reason;

       (d)    Subscriber Information, if such information is stored by or on behalf of either of
              the Applicants for any reason; and
                                                7


       (e)     billing records of customers or subscribers, if such information is stored by or on
               behalf of either of the Applicants for any reason.

Nothing in this Section is meant to exclude the use of Transactional Data for business or network
management purposes in the normal course of business if said data is subject to security and
Access controls. The phrase “on behalf of” as used in this Section does not include entities with
which either of the Applicants have contracted for peering, interconnection, roaming, long
distance, or other similar arrangements on which the Parties may agree.

2.5      Storage Pursuant to 18 U.S.C. § 2703(f). Upon a request made pursuant to 18 U.S.C.
§ 2703(f) by a Government Authority within the United States to preserve any information in the
possession, custody, or control of either of the Applicants, including any information that is
listed in Section 2.4 above, the Applicants shall ensure such preserved records or other evidence
are stored in the United States.

2.6     Compliance with U.S. Law. Nothing in this Agreement shall excuse the Applicants
from any obligation they may have to comply with U.S. legal requirements for the retention,
preservation, or production of information, records or data as well as all applicable requirements
of the Communications Assistance for Law Enforcement Act, 47 U.S.C. § 1001, et seq.

2.7    Storage of Protected Information. The Applicants shall store all Classified Information
and Sensitive Information exclusively in the United States.

                                   ARTICLE 3: SECURITY

3.1     Measures to Prevent Improper Use or Access.               The Applicants shall take all
reasonable measures to prevent the use of or Access to the Domestic Communications
Infrastructure to conduct Electronic Surveillance, or to Access, obtain or disclose Domestic
Communications, Transactional Data, Subscriber Information, Classified Information or
Sensitive Information, in violation of any U.S. federal, state, or local laws or the terms of this
Agreement. The Applicants shall submit the policies and procedures regarding these measures to
DHS for review upon request. The Applicants agree to meet and confer with DHS and
reasonably address any concerns DHS may raise about the policies or the procedures described
therein.

3.2     Access by Foreign Government Authorities. The Applicants shall not, directly or
indirectly, disclose or permit disclosure of, or provide Access to Domestic Communications,
Transactional Data, or Subscriber Information, stored by or on behalf of either of the Applicants
to any person if the purpose of such Access is to respond to the legal process or the request of or
on behalf of a Foreign Government, identified representative, component or subdivision thereof,
without the express written consent of DHS or the authorization of a court of competent
jurisdiction in the United States. Any such requests or submission of legal process shall be
reported to DHS as soon as possible and in no event later than ten (10) business days after such
request or legal process is received by or known to either of the Applicants. The Applicants shall
take reasonable measures to ensure that they each will promptly learn of all such requests or
submission of legal process. Provided, however, that nothing in this Section 3.2 shall require the
express written consent of DHS or the authorization of a court of competent jurisdiction in the
                                                 8


United States with respect to any response to the legal process, or the request of or on behalf of
the Independent State of Samoa, identified representative, component or subdivision thereof with
respect to the non-U.S. portion of a Wire Communication or Electronic Communication (whether
stored or not) that may originate or terminate outside the United States.”

3.3     Disclosure to Foreign Government Authorities. The Applicants shall not, directly or
indirectly, disclose or permit disclosure of, or provide Access to:

       (a)     Classified or Sensitive Information;

       (b)     Transactional Data, Subscriber Information, or a copy of any Wire or Electronic
               Communications, intercepted or acquired pursuant to Lawful U.S. Process; or

       (c)     the existence of Lawful U.S. Process that is not already a matter of public record;

to any Foreign Government, identified representative, component or subdivision thereof, without
satisfying all applicable U.S. federal, state and local legal requirements, and without obtaining
either the express written consent of DHS or the authorization of a court of competent
jurisdiction in the United States. Any requests or any legal process submitted by a Foreign
Government, an identified representative, a component or subdivision thereof to either of the
Applicants for the communications, data or information identified that is maintained by either of
the Applicants shall be referred to DHS as soon as possible and in no event later than ten (10)
business days after such request or legal process is received by or known to either of the
Applicants, unless the disclosure of the request or legal process would violate applicable law.
The Applicants shall take reasonable measures to ensure that they will promptly learn of all such
requests or submission of legal process.

3.4    Notification of Access or Disclosure Requests from Foreign Non-Governmental
Entities. Within ten (10) business days after receiving legal process or requests from Foreign
non-governmental entities for Access to or disclosure of Domestic Communications, the
Applicants shall notify DHS in writing of such legal process or requests, unless such disclosure
would be in violation of an order of a court of competent jurisdiction within the United States.

3.5     Security of Lawful U.S. Process. The Applicants shall protect the confidentiality and
security of all Lawful U.S. Process served upon them and the confidentiality and security of
Classified and Sensitive Information in accordance with U.S. federal and state law or regulation
and this Agreement.

3.6     Point of Contact. The Applicants have heretofore designated a Point of Contact with the
authority and responsibility for accepting and overseeing the carrying out of Lawful U.S. Process
relating to Domestic Communications carried by or through, in whole or in part, the Domestic
Communications Infrastructure, or relating to its customers or subscribers. The Applicants agree
that the designated Point of Contact, or an alternate Point or Points of Contact, shall be
responsible for receiving and addressing any national security, law enforcement or public safety
concerns raised by DHS regarding the Cable System, and shall have the authority to negotiate
measures to mitigate such concerns. The Applicants shall ensure that at least one such
Representative shall be in the United States, shall be available twenty-four (24) hours per day,
                                                9


seven (7) days per week, and shall be responsible for responding to inquiries from DHS
concerning the Applicants’ compliance with the terms of this Agreement, accepting service, and
maintaining the security of Classified Information, Sensitive Information and any Lawful U.S.
Process relating to Domestic Communications carried by or through, in whole or in part, the
Domestic Communications Infrastructure, or relating to the customers or subscribers of the
Applicants. If the designee cannot satisfy these requirements, the Applicants shall in ten (10)
business days or less notify DHS in writing of a new Point or Points of Contact. The Applicants
shall notify DHS of all other future changes in such designation, or the designation of alternate
Points of Contact, also in ten (10) business days or fewer. The Point(s) of Contact shall be a
resident U.S. national or nationals who, based on the information in the Applicants’ possession,
are eligible for appropriate U.S. security clearances. The Applicants shall cooperate with any
request by a Government Authority within the United States that a background check, security
clearance process or both be completed for a Point of Contact.

3.7    Information Security Plan. Within ninety (90) calendar days of the Effective Date the
Applicants shall:

       (a) take appropriate measures to prevent unauthorized Access to data or facilities that
       might contain Classified or Sensitive Information;

       (b) assign U.S. nationals, who meet high standards of trustworthiness for maintaining the
       confidentiality of Sensitive Information, to positions that handle or that regularly deal
       with information identifiable to such person as Sensitive Information;

       (c) upon request from DHS provide the name, date of birth, and other relevant requested
       identifier information of each person who regularly handles or deals with Sensitive
       Information;

       (d) require that personnel handling Classified Information shall have been granted
       appropriate security clearances pursuant to Executive Order 12968;

       (e) provide that the Point(s) of Contact described in Section 3.6 of this Agreement shall
       have sufficient authority over any employees or contractors of the Applicants who may
       handle Classified or Sensitive Information to maintain the confidentiality and security of
       such information in accordance with applicable U.S. legal authority and the terms of this
       Agreement; and

       (f) maintain appropriately secure facilities (e.g., offices) for the handling and storage of
           any Classified or Sensitive Information.

The Applicants shall make the policies and procedures regarding their respective Information
Security Plans available to DHS upon request.

3.8    Nondisclosure of Protected Data. The Applicants shall not directly or indirectly
disclose information concerning Lawful U.S. Process, Classified Information, or Sensitive
Information to any third party, or to any officer, director, shareholder, employee, agent, or
contractor of the Applicants, including those who serve in a supervisory, managerial or executive
                                                 10


role with respect to the employees working with the information, unless disclosure has been
approved by prior written consent obtained from DHS or there is an official need for disclosure
of the information in order to fulfill an obligation consistent with the purpose for which the
information is collected or maintained.

3.9     Notice of Obligations. The Applicants shall instruct appropriate officials, employees,
contractors, and agents as to their obligations under this Agreement, including the individuals’
duty to report any violation of this Agreement and the reporting requirements in Article 4 of this
Agreement, and shall issue periodic reminders to them of such obligations.

3.10 Access to Classified or Sensitive Information. Nothing contained in this Agreement
shall limit or affect the authority of a U.S. Government Authority to deny, limit or revoke
whatever access either of the Applicants might have to Classified or Sensitive Information under
that Government Authority’s jurisdiction.

                         ARTICLE 4: REPORTING AND NOTICE

4.1     Filings Concerning de jure or de facto Control of the Applicants. If either of the
Applicants makes any filing with the FCC or any other Government Authority relating to the de
facto or de jure control of that Applicant, or to the Cable System, except for filings with the FCC
for assignments or transfers of control that are pro forma, the Applicants shall promptly provide
to DHS written notice and copies of such filing.

4.2     Change in Control. If any member of the managements of the Applicants (including
officers and members of the Boards of Directors) acquires any information that reasonably
indicates that any single foreign entity or individual, other than those already identified in
connection with the pending FCC Application filed by the Applicants, has or will likely obtain
an ownership interest (direct or indirect) in either of the Applicants, or in the Cable System,
above ten (10) percent, as determined in accordance with 47 C.F.R. § 63.09, or if any foreign
entity or individual, singly or in combination with other foreign entities or individuals, has or
will likely otherwise gain either: (i) Control; or (ii) de facto or de jure control of either of the
Applicants then such officer or director shall promptly cause that Applicant to notify DHS in
writing within ten (10) business days. Notice under this Section shall, at a minimum:

       (a)     identify the entity or individual(s) (specifying the name, addresses, and telephone
               numbers of the entity);

       (b)     identify the beneficial owners of the increased or prospective increased interest in
               the Applicant or the Cable System by the entity or individual(s) (specifying the
               name, addresses, and telephone numbers of each beneficial owner); and

       (c)     quantify the amount of ownership interest that the entity or individual(s) has or
               will likely obtain in the Applicant or the Cable System and, if applicable, the basis
               for their prospective Control of the Applicant or the Cable System.

4.3     Procedure and Process on Reporting. Within forty-five (45) calendar days of the
Effective Date, the Applicants shall adopt and distribute to all officers and directors, a written

                                                 11


procedure or process for the reporting by officers and directors of noncompliance with this
Agreement. This written procedure or process shall also provide for the reporting by employees,
agents and contractors to management of information that must be reported to DHS under this
Article. Any violation by either of the Applicants of any material term of such corporate policy
shall constitute a breach of this Agreement. By a written statement, the Applicants shall notify
all employees, contractors and agents that the general categories of information identified in this
Article should be disclosed to senior management and shall set forth in a clear and prominent
manner the contact information for a senior manager to whom such information may be reported.
The written statement informing employees, contractors, and agents of the need to report this
information shall also state that the Applicants will not discriminate against, or otherwise take
adverse action against, anyone who reports such information to management or the United States
government. The Applicants shall make such process or procedure documents available to DHS
upon request.

4.4      Non-retaliation. Within forty-five (45) calendar days after the Effective Date, the
Applicants shall adopt and distribute to all officers and directors an official corporate policy that
strictly prohibits discrimination or any adverse action against any officer, director, employee,
contractor, or agent because he or she has in good faith initiated or attempted to initiate a notice
or report under this Article, or has notified or attempted to notify the management to report
information that he or she believes in good faith is required to be reported to DHS under either
this Article or under the Applicants’ written notices to employees on the reporting of any such
information. Any violation by either of the Applicants or any of their Affiliates of any material
term of such corporate policy shall constitute a breach of this Agreement. The Applicants shall
make such process or procedure documents available to DHS upon request.

4.5    Reporting of Incidents. The Applicants shall report to DHS any information acquired
by any of their officers, directors, employees, contractors or agents that reasonably indicates:

       (a)     a breach of this Agreement;

       (b)     access to or disclosure of Domestic Communications, or the conduct of Electronic
               Surveillance, in violation of federal, state or local law or regulation;

       (c)     access to or disclosure of CPNI or Subscriber Information in violation of federal,
               state or local law or regulation (except for violations of FCC regulations relating
               to improper commercial use of CPNI); or

       (d)     improper access to or disclosure of Classified or Sensitive Information.

This report shall be made in writing by the appropriate officer to DHS no later than ten (10)
calendar days after either of the Applicants acquires information indicating a matter described
in this Section. The Applicants shall lawfully cooperate in investigating the matters described in
this Section. The Applicants need not report information where disclosure of such information
would be in violation of an order of a court of competent jurisdiction in the United States.

4.6    Access to Information and Facilities. DHS, or other agencies or personnel assigned to
assist DHS, may visit at any time any part of the Applicants’ Domestic Communications
                                                 12


Infrastructure and security offices to conduct on-site reviews concerning the implementation of
the terms of this Agreement and may at any time require unimpeded access to information
concerning technical, physical, management, or other security measures needed by DHS to
verify compliance with the terms of this Agreement.

4.7    Access to Personnel. Upon reasonable notice from DHS, or other agencies or personnel
assigned to assist DHS, the Applicants shall make available for interview any of their officers or
employees and any contractor located in the United States, who is in a position to provide
information to verify compliance with the terms of this Agreement.

4.8    Annual Report. On or before the last day of January of each year, designated senior
corporate officers representing each of the Applicants shall submit to DHS a report assessing
each of the Applicants’ compliance with the terms of this Agreement for the preceding calendar
year. The report shall include:

       (a) a copy of the then current policies and procedures adopted to comply with this
       Agreement;

       (b) a summary of the changes, if any, to the policies or procedures, and the reasons for
       those changes;

       (c) a summary of any known acts of noncompliance with the terms of this Agreement,
       whether inadvertent or intentional, with a discussion of what steps have been or will be
       taken to prevent such acts from occurring in the future; and

       (d) identification of any other issues that, to either of the Applicants’ knowledge, will or
       reasonably could affect the effectiveness of or its compliance with this Agreement.

4.9    Notices. Effective upon execution of this Agreement by the Parties, all notices and other
communications relating to this Agreement, such as a proposed modification, shall be in writing
and shall be deemed given as of the date of receipt and shall be sent by electronic mail, or if no
e-mail is specified, by one of the following methods: (a) delivered personally, (b) sent by
facsimile, (c) sent by documented overnight courier service, or (d) sent by registered or certified
mail, postage prepaid, addressed to the Parties’ designated representatives at the addresses shown
below, or to such other representatives at such addresses as the Parties may designate in
accordance with this Section:

Department of Homeland Security
Assistant Secretary for Policy
Washington, DC 20528
ip-fcc@dhs.gov

American Samoa Hawaii Cable, LLC
P.O. Box 7870
Pago Pago, AS 96799
(684) 699−2100

                                                13


AST Telecom, LLC
d/b/a Blue Sky Communications
Lafou Plaza
P.O. Box 478
Pago Pago, AS 96799
(684) 699-2759

With a copy to:

Kent Bressie
Harris, Wiltshire & Grannis LLP
1200 18th Street, N.W. Suite 1200
Washington, DC 20036-2516
202−730-1337 tel
202−730-1301 fax
kbressie@harriswiltshire.com

                               ARTICLE 5: FCC CONDITION

5.1     FCC Approval. Upon the execution of this Agreement by the Parties DHS shall on its
own motion at an appropriate time or at the request of either of the Applicants notify the FCC
that, provided the FCC adopts a condition substantially the same as set forth in Exhibit A
attached hereto (the “Condition to FCC Authorization”), DHS has no objection to the FCC’s
grant of the pending Application described in the Recitals of this Agreement. This Section is
effective upon the Effective Date, provided however that in the case of a material modification or
withdrawal of the Application after the execution of this Agreement the effectiveness of this
Section may be suspended by DHS, and any such FCC filing is subject to the right to object
reserved in Section 5.2.

5.2     Right to Object to Future FCC Filings. The Applicants agree that in any application or
petition by either of the Applicants to the FCC for licensing or other authority related to any
Cable System filed with or granted by the FCC after the execution of this Agreement, except
with respect to pro forma assignments or pro forma transfers of control, the Applicant shall
request that the FCC condition the grant of such licensing or other authority on compliance with
the terms of this Agreement. Notwithstanding Section 7.9, DHS reserves the right to object,
formally or informally, to the grant of any other FCC application or petition of either of the
Applicants for a license or other authorization under Titles II and III of the Communications Act
of 1934, as amended, and to seek additional or different terms that would, consistent with the
public interest, address any threat to the ability of the United States to enforce the laws, preserve
the national security and protect the public safety raised by the services and transactions
underlying any such application or petition.

                                    ARTICLE 6:DISPUTES

6.1      Informal Resolution. The Parties shall use their best efforts to resolve any
disagreements that may arise under this Agreement. Disagreements shall be addressed, in the
first instance, at the staff level by the Parties’ designated representatives. Any disagreement that
                                                 14


has not been resolved at that level shall be submitted promptly to the legal counsel for the
Applicants and the Assistant Secretary for Policy of DHS, or their respective designees, unless
DHS believes that important national interests can be protected, or the Applicants believe that
paramount commercial interests can be resolved, only by resorting to the measures set forth in
Section 6.2. If, after meeting with higher authorized officials, a Party determines that further
negotiation would be fruitless, then that Party may resort to the remedies set forth in Section 6.2.
If resolution of a disagreement requires access to Classified Information, the Parties shall
designate a person or persons possessing the appropriate security clearances for the purpose of
resolving that disagreement.

6.2     Enforcement of Agreement. Subject to Section 6.1 of this Agreement, if any Party
believes that another party has breached or is about to breach this Agreement, that Party may
bring an action against the other Party for appropriate judicial relief. Nothing in this Agreement
shall limit or affect the right of a U.S. Government Agency to:

       (a)     require that the Party believed to have breached, or about to breach, this
               Agreement cure such breach within thirty (30) calendar days, or whatever
               shorter time period is appropriate under the circumstances, upon receiving written
               notice of such breach;

       (b)     request that the FCC modify, condition, revoke, cancel, or render null and void
               any license, permit, or other authorization granted or given by the FCC to the
               Applicants, request that the FCC take other action, or request that the FCC impose
               any other appropriate sanction, including but not limited to a forfeiture or other
               monetary penalty, against the Applicants;

       (c)     seek civil sanctions for any violation by either of the Applicants of any U.S. law
               or regulation or term of this Agreement;

       (d)     pursue criminal sanctions against the Applicants, or any director, officer,
               employee, representative, or agent thereof, or against any other person or entity,
               for violations of the criminal laws of the United States; or

       (e)     seek suspension or debarment of the Applicants from eligibility for contracting
               with the U.S. Government, in accordance with applicable law and regulation.

6.3     Irreparable Injury. The Applicants agrees that the United States would suffer
irreparable injury if for any reason they failed to perform any of their obligations under this
Agreement, and that monetary relief would not be an adequate remedy. Accordingly, the
Applicants agree that, in seeking to enforce this Agreement, DHS shall be entitled, in addition to
any other remedy available at law or equity, to specific performance and injunctive or other
equitable relief.

6.4     Waiver. The availability of any civil remedy under this Agreement shall not prejudice
the exercise of any other civil remedy under this Agreement or under any provision of law, nor
shall any action taken by a Party in the exercise of any remedy be considered a waiver by that
Party of any other rights or remedies. The failure of any Party to insist on strict performance of
                                                 15


any of the provisions of this Agreement, or to exercise any right they grant, shall not be
construed as a relinquishment or future waiver; rather, the provision or right shall continue in full
force. No waiver by any Party of any provision or right shall be valid unless it is in writing and
signed by the Party.

6.5     Waiver of Immunity. The Applicants agree, to the extent that they or any of their
property (including FCC licenses and authorizations and intangible property) is or becomes
entitled at any time to any immunity on the ground of sovereignty or otherwise based upon a
status as an agency or instrumentality of Government from any legal action, suit or proceeding or
from setoff or counterclaim relating to this Agreement, from the jurisdiction of any competent
court or the FCC, from service of process, from attachment prior to judgment, from attachment
in aid of execution of a judgment, from execution pursuant to a judgment or arbitral award, or
from any other legal process in any jurisdiction, they, for themselves and their respective
property expressly, irrevocably and unconditionally waives, and agrees not to plead or claim, any
such immunity with respect to matters arising with respect to this Agreement or the obligations
herein (including any obligation for the payment of money) in any proceeding brought by a U.S.
federal, state, or local Government Authority. The Applicants agrees that the waiver in this
provision is irrevocable and is not subject to withdrawal in any jurisdiction or under any statute,
including the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq. The foregoing waiver
shall constitute a present waiver of immunity at any time any action is initiated by a U.S. federal,
state, or local Government Authority against either of the Applicants with respect to compliance
with this Agreement.

6.6     Forum Selection. It is agreed by and between the Parties that a civil action among the
Parties for judicial relief with respect to any dispute or matter whatsoever arising under, in
connection with, or incident to, this Agreement shall be brought, if at all, in the United States
District Court for the District of Columbia.



                                     ARTICLE 7: OTHER

7.1     Right to Make and Perform Agreement. Each Party represents that it has and shall
continue to have throughout the term of this Agreement the full right to enter into this Agreement
and perform its obligations hereunder and that this Agreement is a legal, valid, and binding
obligation of each Party enforceable in accordance with its terms.

7.2     Headings. The Article and Section headings and numbering in this Agreement are
inserted for convenience only and shall not affect the meaning or interpretation of the terms of
this Agreement.

7.3      Other Laws. Nothing in this Agreement is intended to limit or constitute a waiver of:
(a) any obligation imposed by any U.S. federal, state, or local laws on the Applicants, (b) any
enforcement authority available under any U.S. or state laws; (c) the sovereign immunity of the
United States; or (d) any authority the U.S. Government may possess over the activities or
facilities of the Applicants located within or outside the United States (including authority

                                                 16


pursuant to the International Emergency Economic Powers Act). Nothing in this Agreement is
intended to or is to be interpreted to require the Parties to violate any applicable U.S. law.

7.4    Statutory References. All references in this Agreement to statutory provisions shall
include any future amendments to such statutory provisions.

7.5    Non-Parties. Nothing in this Agreement is intended to confer or does confer any rights
on any person other than the Parties and any Government Authorities that utilize Lawful U.S.
Process.

7.6     Entire Agreement; Modifications. This Agreement constitutes the entire agreement
between the Parties pertaining to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations, and discussions, whether oral or written, of the Parties with respect
to the subject matter. This Agreement may only be modified by written agreement signed by all
Parties. DHS agrees to consider promptly and in good faith possible modifications to this
Agreement if either of the Applicants believes that the obligations imposed on it under this
Agreement are substantially more restrictive than those imposed on other U.S. and foreign
licensed service providers in like circumstances in order to protect U.S. national security, law
enforcement, and public safety concerns. Any substantial modification to this Agreement shall
be reported to the FCC within thirty (30) calendar days after approval in writing by the Parties.

7.7     Severability. The provisions of this Agreement shall be severable and if any provision
thereof or the application of such provision under any circumstances is held invalid by a court of
competent jurisdiction, it shall not affect any other provision of this Agreement or the application
of any provision thereof.

7.8    Changes in Circumstances for the Applicants. DHS agrees to negotiate in good faith
and promptly with respect to any request by the Applicants for relief from application of specific
provisions of this Agreement if there is a change in circumstances such that those provisions
become unduly burdensome or have a demonstrably adverse effect on the Applicants’
competitive position.

7.9      Changes in Circumstances for DHS. If after the date that the Parties have executed this
Agreement, DHS finds that the terms of this Agreement are inadequate to address national
security, law enforcement, or public safety concerns, then the Applicants will negotiate in good
faith to modify this Agreement to address those concerns.

7.10 Counterparts. This Agreement may be executed in one or more counterparts, including
by facsimile, each of which shall together constitute one and the same instrument.

7.11 Successors and Assigns. This Agreement shall inure to the benefit of, and shall be
binding upon, the Parties, and their respective successors and assigns. This Agreement shall also
be binding on all subsidiaries, divisions, departments, branches, and other components or agents
of the Applicants.




                                                 17


7.12 Effectiveness of Agreement. Except as otherwise specifically provided in the provisions
of this Agreement, the obligations imposed and rights conferred by this Agreement shall take
effect upon the Effective Date.

7.13 Notice of Additional Services. The Applicants shall provide a minimum of thirty (30)
calendar days advanced notice to DHS in the event that they change or intend to change the
technical or operational plans set forth in the Recitals to this Agreement such that the material
representations made therein are no longer fully accurate, true and complete.

                                       [Signature Pages Follow]




                                               18


This Agreement is executed on behalfof the Parties:


                                           American Samoa Hawaii Cable, LLC


Date:__/ /3 /09
                                           Prifited Name: James R.‘Wilson
                                           Title: Manager
                                  sar




Date:                                      By:
                                           Printed Name: Harley "Mike" Rollins
                                           Title: Manager




                                           AST Telecom, LLC



Date:                                      By:
                                           Printed Name: Adolfo Montenegro
                                           Title: President and CEO




                                           Department of Homeland Security


Date:                                      By:
                                           Printed Name: Stewart A. Baker
                                           Title: Assistant Secretary for Policy




                                              19


     This Agreement is executed on behalf of the Parties:


                                                 American Samoa Hawaii Cable, LLC
um




     Date:                                       By:
                                                 Printed Name: James R. Wilson
                                                 Title: Manager




     Date:                                       m Mtg 4. uP
                                                 Printed Name: Farley "Mike" Rollins
                                                 Title: Manager




                                                 AST Telecom, LLC



     Date:                                       By:
                                                 Printed Name: Adolfo Montenegro
                                                 Title: President and CEO




                                                 Department of Homeland Security


     Date:                                       By:
                                                 Printed Name: Stewart A. Baker
                                                 Title: Assistant Secretary for Policy


This Agreement is executed on behalf of the Parties:


                                            American Samoa Hawaii Cable, LLC


Date:                                       By:
                                            Printed Name: James R. Wilson
                                            Title: Manager




Date:                                       By:
                                            Printed Name: Harley "Mike" Rollins
                                            Title: Manager




                                            AST Telecom, LLC



Date:   (Z'[ 3§2 ‘}&&Y                      By:        //fim
                                            Printed Narhé: Adgifo Montenegro
                                            Title: President afd CEO




                                            Department of Homeland Security


Date:                                       By:
                                            Printed Name: Stewart A. Baker
                                            Title: Assistant Secretary for Policy




                                               19


JANUARY 9, 2009


                                   EXHIBIT A
                        CONDITION TO FCC AUTHORIZATION

       IT IS FURTHER ORDERED, that this authorization and any licenses granted
thereunder are subject to compliance with the provisions of the agreement (the “Agreement”)
between American Samoa Hawaii Cable, LLC and AST Telecom, LLC, on the one hand, and
the Department of Homeland Security (“DHS”), on the other, dated January 9, 2009, which
Agreement is designed to address national security, law enforcement, and public safety concerns
of DHS regarding the authority granted herein. Nothing in the Agreement is intended to limit
any obligation imposed by federal law or regulation including, but not limited to, 47 U.S.C.
§ 222(a) and (c)(1) and the FCC’s implementing regulations.




                                              20



Document Created: 2010-08-25 11:13:29
Document Modified: 2010-08-25 11:13:29

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