Attachment Petition_to_adopt_LO

Petition_to_adopt_LO

PETITION submitted by DOJ

Petition

2011-02-15

This document pretains to SCL-T/C-20101022-00025 for Transfer of Control on a Submarine Cable Landing filing.

IBFS_SCLTC2010102200025_868889

PUBLIC NOTICE FEDERAL COMMUNICATIONS COMMISSION 445 TWELFTH STREET, S.W. WASHINGTON, D.C. 20554 DA 10-2172 News media information 202/418-0500 Fax-On-Demand 202/418-2830 Internet: http://www.fcc.gov ftp.fcc.gov Released: November 10, 2010 eLANDIA INTERNATIONAL INC., PETE R. PIZZARO, AND AMPER, S.A. SEEK FCC CONSENT TO TRANSFER OF CONTROL APPLICATIONS AND REQUEST A DECLARATORY RULING ON FOREIGN OWNERSHIP IB Docket No. 10-229 PLEADING CYCLE ESTABLISHED Petitions Due: December 10, 2010 Oppositions Due: December 20, 2010 Replies Due: December 27, 2010 INTRODUCTION eLandia International Inc. (“eLandia”), Pete R. Pizzaro (“Mr. Pizzaro”), and Amper, S.A. (“Amper,” together with eLandia and Mr. Pizzaro, the “Applicants”) have filed applications for transfer of control pursuant to Sections 214 and 310(d) of the Communications Act of 1934, as amended (Communications Act), and the Submarine Cable Landing Licensing Act.1 In these applications, Applicants seek Commission approval to transfer control of subsidiaries of eLandia that hold FCC authorizations and licenses – AST Telecom, LLC d/b/a Blue Sky Communications (“Blue Sky”), American Samoa License, Inc. (“ASLI”), American Samoa Hawaii Cable, LLC (“ASHC”), and Samoa American Samoa Cable LLC (“SASC) – from the current shareholders of eLandia, including Mr. Pizzaro, who acts as a trustee of a Voting Trust for a substantial portion of eLandia’s voting stock, to Amper. These applications pertain to wireless licenses in the Advanced Wireless Service (AWS), 700 MHz Lower Band, Cellular Radiotelephone Service, and Broadband Personal Communications Service, earth station licenses, a submarine cable landing license, and international Section 214 authorizations. Applicants also seek a declaratory ruling allowing the indirect foreign ownership of Blue Sky and ASLI in excess of the 25 percent benchmark of Section 310(b)(4).2 PARTIES eLandia is a holding company organized in Delaware. Mr. Pizarro, a U.S. citizen, is the Chief Executive Officer of eLandia, and the trustee of a Voting Trust3 which currently holds 44.75% of the 1 47 U.S.C. §§ 34-39, 214, 310(d). 2 47 U.S.C. § 310(b)(4). 3 In February 2009, eLandia executed a capital structure reorganization, to establish a Voting Trust and effectuate the replacement of Stanford International Bank Limited (SIBL) as the majority owner of eLandia. SIBL was issued Voting Trust Certificates (VTC) in exchange for SIBL’s shares of eLandia. SIBL is currently subject to a receivership imposed by the U.S. District Court for the Northern District of Texas, see Amended Order Appointing 1

common stock of eLandia, and also holds non-voting preferred stock of eLandia. Mr. Pizzaro also has approximately 2.75% ownership in eLandia as an individual shareholder. Foreign shareholders and shareholders of unknown nationality currently hold a combined 16.2% of the common stock of eLandia. eLandia does not directly hold any FCC licenses or authorizations. Blue Sky, a Delaware limited liability company, is a wholly-owned direct subsidiary of eLandia and holds wireless licenses and earth station licenses, and owns and operates the cable landing station for the American Samoa-Hawaii Cable System located in American Samoa. ASLI, an American Samoa corporation, is an indirect wholly-owned subsidiary eLandia; Blue Sky is the direct parent of ASLI. ASLI holds wireless licenses, earth station licenses, and international section 214 authorizations. eLandia has an indirect controlling interest in ASHC and its wholly-owned subsidiary SASC. ASHC owns the Hawaii-American Samoa wet-link portion and the Hawaii and American Samoa shore-en portions of the American Samoa-Hawaii Cable System. SASC owns the Samoa-American Samoa wet-link and Samoa shore-end portions of the American Samoa-Hawaii Cable System. Amper is a widely-held Spanish corporation that is publicly traded on the Madrid Stock Exchange. Tvikap AB (Tvikap), a Swedish corporation, with a 22.01% interest, is the only shareholder with a greater than 10 percent interest in Amper. PROPOSED TRANSACTION On July 29, 2010, eLandia and Amper entered into a Contribution Agreement, whereby Amper will acquire approximately 84.88% of eLandia’s issued and outstanding shares of common stock and thus will gain control over eLandia and its subsidiaries. Pursuant to the Contribution Agreement, Amper will acquire 165,705,913 shares of eLandia’s newly-issued common stock.4 The Contribution Agreement also provides an option, whereby, if exercised, Amper’s ownership of eLandia would increase significantly.5 The existing ownership interests of current shareholders will not be terminated. Instead, such ownership interests will be diluted by eLandia’s newly issued common stock. eLandia’s non-voting preferred stock currently held by the Voting Trust will convert to common shares of eLandia. Following the proposed acquisition, the Voting Trust will terminate, and the shares will revert to the SIBL Receiver, who will hold “complete and exclusive control, possession, and custody” of those shares.6 Mr. Pizarro will individually own and control less than one percent of the voting stock of eLandia. Receiver, Securities and Exchange Commission v. Stanford Int’l Bank Ltd., Case No. 3-09-cv-0298-N (N.D. Tex Mar. 12, 2009), and the VTC are part of the Receivership Estate. The assets and business operations of eLandia and its subsidiaries are not part of the Receivership Estate. See Letter from Ralph S. Janvey, Receiver, to Mr. Pizarro, CEO, eLandia International, Inc. (June 2, 2009), filed as attachment to SEC Form 8-K filed by eLandia International, Inc. (June 3, 2009) 4 In exchange, Amper will contribute to eLandia a 89.60% ownership in Hemisferio Norte, S.A. (Hemisferio) a wholly-owned subsidiary of Amper. Hemisferio owns 100% of Hemisferio Sul Participacoes Ltda., which owns 88.96% of Medidata Informatica, S.A., which in turn owns 100% of XC Comercial e Exportadora Ltda. (the Contributed Entities). 5 This would occur through the purchase by eLandia of Amper’s remaining interest in Hemisferio, in exchange for additional shares in eLandia. 6 Voting Trust Agreement §§ 7, 8; see Amended Order Appointing Receiver, Securities and Exchange Commission v. Stanford Int’l Bank, Ltd., Case No. 3-09-cv-0298-N (N.D. Tex Mar. 12, 2009), at ¶ 4. 2

WIRELESS LICENSES File No. Authorization Holder Lead Call Sign 0004430192 AST Telecom, LLC WQGD479 0004430196 American Samoa License, Inc. KNLF302 EARTH STATION LICENSES File No. Authorization Holder Call Sign SES-T/C-20101025-01349 American Samoa License, Inc. E990019 SES-T/C-20101025-01350 AST Telecom, LLC E090201 PETITION FOR DECLARATORY RULING eLandia has filed a petition pursuant to Section 310(b)(4) for a declaratory ruling that it is in the public interest to allow up to 100% indirect foreign ownership of Blue Sky and ASLI. eLandia requests that Amper be allowed to hold up to an 84.88% indirect interest in Blue Sky and ASLI, and requests the ruling permit additional foreign ownership, up to 100%, to allow eLandia to exercise an option in the future that would result in a significant increase in Amper’s ownership of eLandia and to accommodate incremental shifts in ownership that may occur as a result of minor changes in shareholdings of companies or individuals in the ownership chain. eLandia notes that it currently has a declaratory ruling allowing indirect ownership of Blue Sky and ASLI in excess of the 25 percent benchmark in Section 7 310(b)(4). eLandia states that upon completion of the transaction with Amper, eLandia will be owned by the following entities: Amper (84.88%); SIBL, an Antigua and Barbuda limited company that is controlled by a receiver who is a United States citizen (6.76%); Jorge Enrique Alverado Amado, an Italian citizen (1.37%); Michael Ah Koy, a Fijian citizen (0.37%); other shareholders of Fijian nationality (0.41%); other shareholders of unknown nationality (0.31%); W & R South Pacific, L.P., a Washington partnership (0.71%) and other U.S. shareholders, most of whom are officers, directors and employees of eLandia (4.77%). eLandia states that W & R South Pacific, L.P. is owned by Barry and Fay Alailima Rose, citizens of the United States (directly in limited partnership interests of 98%) and W & R Inc., an American Samoa corporation (directly as a general partner with a 2% interest), which in turn is 100% owned by Barry and Fay Alailima. eLandia states that Amper’s shares are widely held and that it has only one 10 percent-or-greater shareholder: Tvikap AB, a entity organized in Sweden (22.011%), and eight one-percent-or-greater direct or indirect shareholders: Banco Castilla La Mancha, a bank organized in Spain (9.946%); Telefonica S.A., an entity organized in Spain (5.78%); Monte de Piedad y Caja de Ahorros San Fernando de Huelva, Jerez y Sevilla, a bank organized in Spain (5.1%); Naropa Capital S.L., an entity organized in Spain (5.06%); Liquidambar Inversiones Financieras, S.L., an entity organized in Spain (5.0%); Compania de Seguros y Reaseguros, an entity organized in Spain (2.97%); Goldman Sachs Securities (Nominees) Limited, an entity organized in the United Kingdom (1.82%) and State Street Bank and Trust Co., a Massachusetts organized entity (1.21%). 7 AST Telecom, LLC, File No. ISP-PDR-20080401-00006, DA 08-2577, 23 FCC Rcd 17114 (Int’l Bur. 2008). 3


Document Created: 2011-02-11 15:07:28
Document Modified: 2011-02-11 15:07:28
© 2024 FCC.report
This site is not affiliated with or endorsed by the FCC