ASHC Petition 201006

PETITION submitted by Team Telecom

Team Telecom Petition

2010-06-02

This document pretains to SCL-T/C-20100322-00008 for Transfer of Control on a Submarine Cable Landing filing.

IBFS_SCLTC2010032200008_820304

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


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Document Modified: 2019-04-07 22:40:26
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