Attachment SCL Application.pdf

This document pretains to SCL-T/C-20151125-00032 for Transfer of Control on a Submarine Cable Landing filing.

IBFS_SCLTC2015112500032_1116326

                                       Before the
                            Federal Communications Commission
                                  Washington, D.C. 20554

In the Matter of                                   )
                                                   )
Allstream Fiber US, Inc.                           )
        Licensees,                                 )       File No. SCL-T/C-2015______
                                                   )
MTS Inc.                                           )
      Transferor,                                  )
                                                   )
       and                                         )
                                                   )
Zayo Group, LLC                                    )
      Transferee                                   )
                                                   )
Application for Transfer of Control of             )
Submarine Cable Landing License                    )

               JOINT APPLICATION FOR TRANSFER OF CONTROL OF
                           CABLE LANDING LICENSE

       MTS Inc. (“MTS” or “Transferor”) and Zayo Group, LLC (“Zayo” or “Transferee”) (to-

gether, “Applicants”), pursuant to the Act Relating to the Landing and Operation of Submarine

Cables in the United States, 47 U.S.C. §§34-39 (1994), Executive Order No. 10530, Exec. Ord.

No. 10530 reprinted as amended in 3 U.S.C. §301, and Section 1.767 of the Rules of the Federal

Communications Commission (“Commission”), 47 C.F.R. §1.767, request approval for the

transfer of control of Allstream Fiber US, Inc. (“Allstream-US” or “Licensee”), the holder of a

submarine cable landing license, from MTS to Zayo.

I.     THE APPLICANTS

       A.      Allstream Fiber US, Inc. (Licensee) and MTS Inc. (Transferor)

       Allstream-US provides telecommunications to customers on a private carriage basis, be-

tween the United State and Canada. Allstream-US is a wholly owned direct subsidiary of Trans-

feror. Transferor is a wholly owned direct subsidiary of MTS Allstream Holdings Inc. (“MTS


Holdings”), a corporation organized under the laws of Canada. MTS Holdings is a wholly owned

direct subsidiary of Manitoba Telecom Services Inc., a corporation organized under the laws of

Manitoba, Canada.

       Licensee holds a submarine cable landing license as described below.1 Licensee does not

provide intrastate or interstate telecommunications services in the United States.

       B.      Zayo Group, LLC (Transferee)

       Zayo is a provider of bandwidth infrastructure and network neutral colocation and inter-

connection services over regional and metropolitan fiber networks. These services enable cus-

tomers to manage, operate, and scale their telecommunications and data networks. Such

customers consist primarily of wireless service providers, national and regional telecommunica-

tions carriers and other communications service providers, media and content companies,

schools, hospitals, governments, banks and other bandwidth-intensive enterprises.

       Zayo does not currently hold any submarine cable landing licenses from the Commission.

Zayo holds international Section 214 authority to provide global or limited global facilities-based

and resale services granted in IB File No. ITC-214-20091106-00475.2 Zayo also holds blanket

domestic Section 214 authority to provide interstate telecommunications services.

II.    DESCRIPTION OF THE PROPOSED TRANSACTION

       Pursuant to an agreement entered into on November 21, 2015, Zayo will acquire 100 per-

cent of equity of Licensee (the “Transaction”). Following Commission approval of this Applica-

tion ownership and control of Licensee will be transferred to Zayo.
1
        Licensee also holds international Section 214 authority, but only provides telecommuni-
cations on a private carriage basis. Therefore, Licensee is, by separate letter, contemporaneously
surrendering its international Section 214 authority. See IB File No. ITC-214-19981207-00852.
2
       Zayo’s indirect subsidiary, Zayo Group EU Limited (f/k/a AboveNet Communications
Europe Limited), provides international telecommunications services, pursuant to Section
63.21(h), under the international Section 214 authorization of Zayo.

                                                 2


       The Transaction is one part of a larger transaction whereby Zayo will acquire Allstream,

Inc. (“Allstream”), which is also a subsidiary of MTS Holdings. Allstream is a Canadian provid-

er of IP communications that works exclusively with business customers. Allstream does not

provide common carrier telecommunications services in the United States or between Canada

and the United States. The operations of Licensee form a very small part of the overall Allstream

business and the only portion of the Allstream business involving an authorization issued by the

Commission.

III.   PUBLIC INTEREST CONSIDERATIONS

       Applicants respectfully submit that the Transaction will serve the public interest, conven-

ience and necessity. The Transaction will be seamless to consumers and will not adversely affect

Licensee’s carrier customer(s) in the United States or Canada. Applicants anticipate that, imme-

diately following completion of the Transaction, Licensee will continue to provide high-quality

private carrier services while gaining access to the additional resources and operational expertise

of Zayo. The network of Licensee (and Allstream) complements Zayo’s network and the acquisi-

tion will increase Zayo’s existing fiber footprint in the United States and Canada. As a result, the

combined company will be able to better compete against larger carriers in both the United

States and Canada.

       The Commission’s public interest analysis of proposed transactions requires the Commis-

sion to balance the potential harms posed by a transaction with the potential benefits. Under the

Commission’s “sliding scale approach” to evaluating benefit claims, “where potential harms

appear both substantial and likely … the demonstration of claimed benefits must reveal a higher




                                                 3


degree of magnitude and likelihood....”3 However, where potential harms appear unlikely or less

likely and less substantial, the Commission will accept a lesser showing.4 In contrast to the

expected benefits to the Licensee and its current and prospective customers in the United States

and Canada, the Transaction poses no competitive harm. Further, Zayo and its subsidiaries do

not hold a submarine cable landing license. The Transaction therefore serves the public interest.

IV.      INFORMATION REQUIRED BY SECTION 1.767 OF COMMISSION’S RULES

         Applicants provide the following information in support of this Application as required

by 47 C.F.R. §1.767:

      (1) Name, address and telephone number of Applicants:

Licensee                Allstream Fiber US, Inc.                     FRN: 0007477755
                        21st Floor, 333 Main Street
                        Winnipeg, Manitoba, Canada R3C 3V6
                        Tel: 204-941-4754
Transferor:             MTS Inc.                                     FRN: 0008310682
                        21st Floor, 333 Main Street
                        Winnipeg, Manitoba, Canada R3C 3V6
                        Tel: 204-941-4754
Transferee:             Zayo Group, LLC                              FRN: 0016555849
                        1805 29th Street, Suite 2050
                        Boulder, CO 80301
                        Tel: 303-381-4683

      (2) Place of Formation:

         Licensee:      Allstream-US is organized under the laws of the State of Delaware.

         Transferor:    MTS is organized under the laws of Canada.

         Transferee:    Zayo is organized under the laws of the State of Delaware.
3
        See e.g., Applications of Softbank Corp., Starburst II, Inc., Sprint Nextel Corporation,
and Clearwire Corporation for Consent to Transfer Control of Licenses and Authorizations;
Petitions for Reconsideration of Applications of Clearwire Corporation for Pro Forma Transfer
of Control, IB Docket No. 12-343, Memorandum Opinion and Order, Declaratory Ruling, and
Order on Reconsideration, 28 FCC Rcd 9642 at 9677-78, para. 91 (2013).
4
         See e.g., id. at 9678-79, para. 93.

                                                 4


   (3) Correspondence concerning this Application should be sent to :

For Transferee:                                 For Transferor and Licensee:
       Russell M. Blau                              Lawrence J. Movshin
       Brett P. Ferenchak                           Jennifer L. Kostyu
       Morgan, Lewis & Bockius LLP                  Wilkinson Barker Knauer LLP
       2020 K Street, N.W., Suite 1100              1800 M Street, N.W., Suite 800N
       Washington, DC 20006-1806                    Washington, DC 20036
       202-373-6000 (tel)                           202-783-4141 (tel)
       202-373-6001 (fax)                           202-783-5851 (fax)
       russell.blau@morganlewis.com                 lmovshin@wbklaw.com
       brett.ferenchak@morganlewis.com              jkostyu@wbklaw.com

 with a copy to:                                with a copy to:
       Christopher P. Yost, General Counsel          Paul Beauregard
       Zayo Group, LLC                               Chief Corporate and Strategy Officer &
       1805 29th Street                              Corporate Secretary
       Boulder, CO 80301                             MTS Inc.
       303-381-4677 (tel)                            21st Floor, 333 Main Street
       christopher.yost@zayo.com                     Winnipeg, Manitoba, Canada R3C 3V6
                                                     204.941.4754 (tel)
                                                     paul.beauregard@mtsallstream.com


   (4) Description of the Cable System:

       Licensee is a co-licensee in the Submarine Cable Landing License that is authorized to

land and operate in the United States a private submarine fiber optic cable extending between the

United States and Canada (the AmeriCan-1 submarine cable) pursuant to Section 1.767 of the

Commission’s Rules, 47 C.F.R. § 1.767. See IB File No. SCL-LIC-19980123-00002 & SCL-

MOD-19990901-00016.

   (5) Landing Points:

       The landing points are near Seattle, Washington and Victoria, Canada. Additional details

of the Landing points are available in File No. SCL-LIC-19980123-00002.




                                               5


    (6) A Statement as to Whether the Cable Will be Operated on a Common Carrier or
        Non-Common Carrier Basis

       The AmeriCan-1 Cable is operated and, to Applicants’ knowledge, will continue to be

operated on a non-common carrier basis.

    (7) Ownership Interest in the AmeriCan-1 Cable

       Allstream-US currently holds a one-quarter interest in the capacity and the related sup-

port facilities and structures of the AmeriCan-1 submarine cable. Upon completion of the Trans-

action, Allstream-US will be a wholly owned subsidiary of Zayo.

    (8) Certification and Ownership Information Required by Section 1.767(a)(8) of the
        Commission’s Rules, 47 C.F.R. §1.767(a)(8) Incorporating by Reference the Re-
        quirements of Section 63.18(h) and (o) of the Commission’s Rules, 47 C.F.R.
        §§63.18(h) and (o):

       Section 63.18(h) – Ten Percent or Great Shareholders:

       Upon completion of the Transaction, the following entities will hold, directly or indirect-

ly, a 10% or greater interest5 in Licensee:

       The following entity will holds a ten percent (10%) or greater direct interest in Allstream
       Fiber U.S., Inc.:

               Name:                  Zayo Group, LLC (“Transferee” or “Zayo”)
               Address:               1805 29th Street
                                      Boulder, CO 80301
               Citizenship:           U.S. (Delaware)
               Principal Business:    Telecommunications
               % Interest:            100% (directly in Zayo)




5
       Unless otherwise indicated, the ownership interests provided herein represent both equity
and voting interests.

                                                6


       The following entity currently holds a ten percent (10%) or greater direct interest in Zayo
       Group, LLC:

              Name:                  Zayo Group Holdings, Inc. (“Holdings”)
              Address:               1805 29th Street
                                     Boulder, CO 80301
              Citizenship:           U.S. (Delaware)
              Principal Business:    Holding Company
              % Interest:            100% (directly in Zayo)

       The following entities and individuals currently hold a ten percent (10%) or greater, di-
       rect or indirect, interest in Zayo Group Holdings, Inc.6

              Name:                  GTCR Partners X/A&C LP
              Address:               300 N. LaSalle Street, Suite 5600
                                     Chicago, IL 60654
              Citizenship:           U.S.
              Principal Business:    Investments
              % Interest:            18.70% (indirectly in Holdings as the general partner of (i)
                                     GTCR Fund X/A LP (9.31% direct interest in Holdings),
                                     (ii) GTCR Fund X/C LP (2.67% direct interest in Holdings)
                                     and (iii) GTCR Investors (CII) LP (6.73% direct interest in
                                     Holdings))

                      Name:                  GTCR Investment X LLC
                      Address:               300 N. LaSalle Street, Suite 5600
                                             Chicago, IL 60654
                      Citizenship:           U.S.
                      Principal Business:    Investments
                      % Interest:            18.79% (indirectly in Holdings as the general part-
                                             ner of (i) GTCR Partners X/A&C LP and (ii) GTCR
                                             Co-Invest X/C LP (0.08% direct interest in Hold-
                                             ings))




6
       Less than 5.0% of Holdings outstanding shares are held in escrow in Communications
Investment Infrastructure LLC’s (“CII”) name; these shares are to be distributed to certain CII
common unit holders and potentially Investors following resolution of contingent distributions
among the preferred and common unit members of CII and upon the vesting of unvested CII
common units. At that time, CII will be completely removed from the ownership chain of
Holdings.

                                                7


                      The following individuals are members of the board of managers of
                      GTCR Investment X LLC, are all U.S. citizens, and can be reached
                      through GTCR Investment X LLC:

                                      Mark M. Anderson
                                      Craig A. Bondy
                                      Philip A. Canfield
                                      David A. Donnini
                                      Constantine S. Mihas
                                      Collin E. Roche
                                      Sean L. Cunningham
                                      Aaron D. Cohen

                      To Zayo’s knowledge, no other person or entity, directly or indirectly,
                      owns or controls a 10% or greater interest in Holdings through GTCR
                      Partners X/A&C LP or GTCR Investment X LLC.

       Holdings is a publicly traded company (NYSE: ZAYO) whose stock ownership varies on

a daily basis. Based on information filed with the SEC with respect to Holdings and other

information provided to Holdings, to the knowledge of Zayo’s management, no other person or

entity currently holds a 10% or greater direct or indirect interest in Zayo. Additional information

regarding Holdings’ ownership is available in Holdings’ most recent proxy statement available

at:    http://www.sec.gov/Archives/edgar/data/1608249/000162612915000213/0001626129-15-

000213-index.htm.

       Section 63.18(h) – Interlocking Directorates:

       Except for the foreign carrier subsidiaries listed below, which share certain directors as

Zayo, Zayo does not have any interlocking directorates with a foreign carrier.




                                                8


       Section 1.767(a)(8)(ii) – Certification Regarding Foreign
       Carrier Status and Foreign Affiliation:

       Zayo holds a Reseller Registration and Basic International Telecommunication Services

License in Canada and thus is itself a non-dominant foreign carrier in Canada. As described in

prior filings by Zayo,7 Zayo also is affiliated with its following foreign carrier subsidiaries:

Country             Affiliate Name              Description of the Company

Canada              360networks Vancou-         360networks is a wholly owned direct subsidiary of
(WTO Member)        ver Ltd.                    Zayo.
                    (“360networks”)
                                                360networks holds a Reseller Registration and Basic
                    A Canadian entity           International Telecommunication Services in Canada.
                                                360networks has less than a 50% market share in the
                                                international transport and local access markets in
                                                Canada.

Canada              AboveNet Canada Inc.        ABN-Canada is a wholly owned direct subsidiary of
(WTO Member)        (“ABN-Canada”)              Zayo.

                    A Canadian entity           ABN-Canada was formed in connection with a
                                                planned entry into Canadian telecom market and
                                                holds a Reseller Registration, but did not undertake
                                                any significant service activity, and is in the process
                                                of being dissolved. ABN-Canada has less than a 50%
                                                market share in the international transport and local
                                                access markets in Canada. Canada.

France,        Zayo Group EU                    Zayo-EU is a wholly owned indirect subsidiary of
Germany,       Limited (“Zayo-EU”)              Zayo.
Netherlands
United Kingdom A UK entity                      Zayo-EU provides primarily lit services between the
(WTO Members)                                   United Kingdom and France, Germany and Nether-
                                                lands. Zayo-EU has less than a 50% market share in
                                                the international transport and local access markets in
                                                the countries where it operates.




7
     See IB File Nos. FCN-NEW-20141126-00019, ITC-ASG-20130628-00178 and ITC-
ASG-20130506-00131.

                                                  9


Country          Affiliate Name        Description of the Company

Germany and    Zayo Group UK           Zayo-UK is a wholly owned indirect subsidiary of
United Kingdom Limited                 Zayo.
(WTO Members) (“Zayo-UK”)
                                       Zayo-UK provides dedicated fiber networks primari-
                 A UK entity           ly used for data services, lit services, and access to
                                       network facilities. Zayo-UK has less than a 50%
                                       market share in the international transport and local
                                       access markets in the United Kingdom and Germany.

Japan            MFN Japan KK          ABN-Japan is a wholly owned direct subsidiary of
(WTO Member)     (“ABN-Japan”)         Zayo.\

                 A Japanese entity.    ABN-Japan formerly provided peering services but is
                                       essentially dormant at this time. ABN-Japan has less
                                       than a 50% market share in the international transport
                                       and local access markets in Japan.

United Kingdom Geo Networks Limited.   Geo Networks is a wholly owned indirect subsidiary
and Ireland    (“Geo Networks”)        of Zayo.
(WTO Members)
               A U.K. entity.          Geo Networks provides dedicated fiber networks
                                       primarily used for data services and access to net-
                                       work facilities. Geo Networks has less than a 50%
                                       market share in the international transport and local
                                       access markets in the United Kingdom and Ireland.

United Kingdom   Geo Metro Limited     Geo Metro is a wholly owned direct subsidiary of
(WTO Member)     (“Geo Metro”)         Geo Networks.

                 A U.K. entity.        Geo Metro provides dedicated fiber networks primar-
                                       ily used for data services and access to network
                                       facilities. Geo Metro has less than a 50% market
                                       share in the international transport and local access
                                       markets in the United Kingdom




                                        10


Country             Affiliate Name           Description of the Company

United Kingdom      FibreSpeed Limited       FibreSpeed is a wholly owned direct subsidiary of
(WTO Member)        (“FibreSpeed”)           GEO.

                    A U.K. entity.           FibreSpeed provides dedicated fiber networks
                                             primarily used for data services and access to net-
                                             work facilities. FibreSpeed has less than a 50%
                                             market share in the international transport and local
                                             access markets in the United Kingdom

     France,        Zayo France SAS          Zayo-France is a wholly owned indirect subsidiary of
United Kingdom,     (formerly known as       Zayo.
     Spain,         Neo Telecoms SAS)
    Germany,        (“Zayo-France”)          Zayo-France provides fiber networks primarily used
Austria, Switzer-                            for data services, IP transit, lit services, and cloud
  land, Nether-     A French entity.         services. Zayo-France has less than a 50% market
      lands,                                 share in the international transport and local access
  Luxembourg,                                markets in each of the countries where it operates.
    Belgium
(WTO Members)
     France         Neocenter Est SARL       Zayo-France directly owns approximately 32.86% of
 (WTO Member)       (“Neo-Est”)              Neo-Est. Neo telecom Group SAS, the direct parent
                                             company of Zayo-France, directly owns approxi-
                    A French entity.         mately 17.14% of Neo-Est. As the indirect parent of
                                             Zayo-France and Neo telecom Group SAS, Zayo
                                             indirectly owns approximately 50% of Neo-Est.

                                             Neo-Est provides lit services, colocation and related
                                             services. Neo-Est has less than a 50% market share in
                                             the international transport and local access markets in
                                             France.

   France           Neocenter Ouest SAS      Zayo-France directly owns approximately 36.58% of
(WTO Member)        (“Neo-Ouest”)            Neo-Ouest.

                    A French entity.         Neo-Ouest provides lit services, colocation and
                                             related services. Neo-Ouest has less than a 50%
                                             market share in the international transport and local
                                             access markets in France.


       Zayo and each of its subsidiaries listed above are non-dominant in the countries where

they are foreign carriers since they each hold less than a 50% market share in the international



                                              11


transport and local access markets in the countries where they operate. Further, none of the

entities are on the Commission’s list of foreign carriers presumed to possess market power.8

       Section 1.767(a)(8)(iii) – Certification Regarding Destination Markets:

       By its signature to this application, Zayo certifies that following consummation of the

Transaction, Zayo and one or more if its affiliates will provide international telecommunications

services in the destination market of the AmeriCan-1 Cable: Canada. As stated above, Zayo,

360networks and ABN-Canada are all non-dominant foreign carriers in Canada.

       Section 1.767(a)(8)(iv) – Demonstration Regarding WTO Status and Market Power:

       Canada is a member of the WTO. Further, Zayo, 360networks and ABN-Canada all lack

market power in Canada as discussed above.

       Section 63.18(o) – Certification Regarding Anti-Drug Abuse Act of 1988:

       Each Applicant certifies, pursuant to Sections 1.2001 through 1.2003 of the Commis-

sion’s Rules, 47 C.F.R. §1.2001-1.2003 (implementing the Anti-Drug Abuse Act of 1988, 21

U.S.C. §3301), that it is not subject to a denial of Federal benefits pursuant to the Anti-Drug

Abuse Act of 1988.

    (9) Certification of Compliance:

       Zayo certifies that it accepts and will abide by the routine conditions set forth in Section

1.767(g) of the Commission’s Rules, 47 C.F.R. §1.767(g).




8
        See Public Notice, The International Bureau Revises and Reissues the Commission’s List
of Foreign Telecommunications Carriers that Are Presumed to Possess Market Power in Foreign
Telecommunications Markets, DA 07-233 (rel. Jan. 26, 2007). Following completion of the
Transaction, Allstream-US will no longer be affiliated with Manitoba Telecom Services, which
is included in that list with respect to Canada.

                                               12


V.     REQUEST FOR STREAMLINING

       Applicants request streamlined processing of this Application. This Application qualifies

for streamlining because Zayo and its foreign carrier affiliates all lack market power for the

reasons described above.

VI.    CONCLUSION

       For the foregoing reasons, MTS and Zayo respectfully submit that grant of this Applica-

tion will serve the public interest, convenience and necessity.

                                              Respectfully submitted,



/s/ Lawrence J. Movshin                       /s/ Brett P. Ferenchak
Lawrence J. Movshin                           Russell M. Blau
Jennifer L. Kostyu                            Brett P. Ferenchak
Wilkinson Barker Knauer, LLP                  MORGAN, LEWIS & BOCKIUS LLP
1800 M Street, N.W., Suite 800N               2020 K Street, N.W.
Washington, DC 20036                          Washington, DC 20006
202-783-4141 (tel)                            202-373-6000 (tel)
202-783-5851 (fax)                            202-373-6001 (fax)
lmovshin@wbklaw.com                           russell.blau@morganlewis.com
jkostyu@wbklaw.com                            brett.ferenchak@morganlewis.com

Counsel for MTS Inc. and                      Counsel for Zayo Group, LLC
   Allstream Fiber US, Inc.


Dated: November 25, 2015




                                                13


                                        VERIFICATION

       I, Paul Beauregard, state that I am Chief Corporate and Strategy Officer & Corporate

Secretary of MTS Inc. (“MTS”); that I am authorized to make this verification on behalf of MTS

and its licensee subsidiary Allstream Fiber US, Inc. (“Licensee”); that the statements regarding

the Transaction, MTS and the Licensees in the foregoing application are true and correct to the

best of my knowledge and belief.

       I declare under the penalty of perjury that the foregoing is true and correct.




                                                     __________________________
                                                     Paul Beauregard
                                                     Chief Corporate and Strategy Officer &
                                                        Corporate Secretary
                                                     MTS Inc.
                       25 2015
Executed on November _____,


                                        VERIFICATION

       I, Christopher P. Yost, state that I am acting General Counsel of Zayo Group, LLC (the

"Company"), that I am authorized to make this verification on behalf of the Company; that the

statements regarding the Transaction and the Company and the certifications contained in the

foregoing application are true and correct to the best of my knowledge and belief.

       I declare under the penalty of perjury that the foregoing is true and correct.




                                                     General Counsel
                                                     Zayo Group, LLC


Executed on November 25, 2015


                               CERTIFICATE OF SERVICE

       I, Brett P. Ferenchak, certify that on November 25, 2015, a copy of the foregoing Appli-

cation for Transfer of Control of Submarine Cable Landing License was served by U.S. mail on

the following:

       U.S. Coordinator, EB/CIP
       U.S. Department of State
       2201 C Street, N.W.
       Washington, DC 20520-5818

       Office of Chief Counsel/NTIA
       U.S. Department of Commerce
       14th St. and Constitution Ave., N.W.
       Washington, DC 20230

       Defense Information Systems Agency
       ATTN: GC/DO1
       6910 Cooper Avenue
       Fort Meade, MD 20755-7088



                                              /s/ Brett P. Ferenchak
                                              Brett P. Ferenchak



Document Created: 2015-11-25 15:49:23
Document Modified: 2015-11-25 15:49:23

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