Attachment Attachment D - MAREA

Attachment D - MAREA

PETITION submitted by US Department of Justice

LOA

2017-10-05

This document pretains to SCL-T/C-20170417-00011 for Transfer of Control on a Submarine Cable Landing filing.

IBFS_SCLTC2017041700011_1286328

April 28, 2017


Assistant Secretary for Policy
U.S. Department of Homeland Security
Office of Policy
Foreign Investment Risk Management
3801 Nebraska Avenue NW
Washington, D.C. 20528
IP-FCC@hq.dhs.gov

Department of Defense Chief Information Officer
c/o Mitchell Komaroff, Director Implementation & Acquisition Integration
6000 Defense Pentagon, Room 3D1048
Washington, DC 20301-6000
mitchell.komaroff.civ@mail.mil
osd.pentagon.dod-cio.list.team-telecom@mail.mil

General Counsel
c/o James DeBose, Associate General Counsel
Defense Information Systems Agency
6910 Cooper Avenue
Fort Meade, MD 20755
james.w.debose.civ@mail.mil

Ladies and Gentlemen:

This Letter of Assurances (“LOA”) outlines the commitments made by Telxius Cable USA
(“Telxius”, f/k/a Telefónica International Wholesale Services USA, Inc.) to the U.S. Department
of Homeland Security (“DHS”), and the U.S. Department of Defense (“DOD”), together “the
USG Parties,” in order to address national security, law enforcement, and public safety concerns
raised with regard to an application filed by Edge Cable Holdings USA, LLC, Microsoft
Infrastructure Group, LLC, Telefónica International Wholesale Services América, S.A., and
Telefónica International Wholesale Services USA, Inc. (“MAREA Applicants”) with the Federal
Communications Commission (“FCC”) requesting authority to land and operate a fiber optic
submarine cable system linking the United States and Spain (“MAREA Cable System”).1 The
MAREA Cable System will be a private, non-common carrier fiber optic cable.



1
    SCL-LIC-20160525-00012, Application of Edge Cable Holdings USA, LLC, Microsoft Infrastructure Group,
    LLC, Telefónica International Wholesale Services América, S.A., and Telefónica International Wholesale
    Services USA, Inc., for a License to Land and Operate a Private Fiber-Optic Submarine Cable System
    Connecting the United States and Spain.


Telxius has agreed to provide this LOA to the USG Parties to address issues raised by the USG
Parties, and Telxius understands that the USG Parties will petition the FCC to condition the
requested authorization on compliance with this LOA.

For purposes of this LOA:

A.     “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.

B.     “Domestic Communications Infrastructure” or “DCI” means: (a) any portion of the
       MAREA Cable System that physically is located in the United States, up to the
       submarine line terminating equipment, including (if any) transmission, switching,
       bridging, and routing equipment, and any associated software (with the exception of
       commercial-off-the-shelf (“COTS”) software used for common business functions, e.g.,
       MS Office) used by or on behalf of the MAREA Applicants to provide, process, direct,
       control, supervise, or manage Domestic Communications; (b) Network Operations
       Center (“NOC”) facilities, as defined in Section D below.

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

D.     “Network Operations Center” or “NOC” means the locations and facilities designated as
       such by Telxius for purposes of performing network management, monitoring,
       maintenance, or other operational functions for the MAREA Cable System.

E.     “Principal Equipment” means the primary electronic components of the MAREA Cable
       System, which includes the Domestic Communications Infrastructure and Wet
       Infrastructure. Principal Equipment includes: network element servers; routers;
       switches; repeaters; submarine line terminal equipment (“SLTE”); system supervisory
       equipment (“SSE”); signal modulators and amplifiers; power feed equipment (“PFE”);
       tilt and shape equalizer units (“TEQ/SEQ”); optical distribution frames (“ODF”);
       branching units (“BU”); 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; and any non-embedded software
       necessary for the proper monitoring, administration, and provisioning of the MAREA
       Cable System (with the exception of COTS software used for common business
       functions, e.g., MS Office).

F.     “Screened Personnel” has the meaning set forth in Paragraph 9 below.

G.     “Wet Infrastructure” means hardware components installed and residing on the undersea
       portion of the MAREA Cable System, including fiber optic cables, repeaters, branching
       units, and routers (if any). Wet Infrastructure includes all the components used in order to
       define the topology of the undersea portion of the MAREA Cable System.

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

Upon grant of the requested FCC authority, Telxius undertakes to comply with the following
commitments:

1. Security Points of Contact

       Within sixty (60) business days of the execution of this LOA, Telxius shall nominate a
       Security Point of Contact (“POC”) for purposes of this LOA, as well as at least one
       alternate POC in the event the primary POC cannot be reached. The nominated POCs
       shall be U.S. citizens and shall reside in the United States. The nominated POCs shall be
       subject to the USG Parties’ review and non-objection, and they may be subject to a
       background check at the sole discretion of the USG Parties. The POC, or an alternate,
       shall be available twenty-four (24) hours per day, seven (7) days per week, regarding any
       national security, law enforcement, or public safety concerns that the USG Parties may
       raise with respect to the MAREA Cable System. The POCs shall be responsible for
       receiving and promptly effectuating any lawful inquiries or requests for information and
       for otherwise ensuring compliance with obligations set forth in this LOA. Telxius shall
       notify the USG Parties of any proposed change to a POC at least ten (10) business days in
       advance of such change. Any subsequently proposed POC shall be subject to the USG
       Parties’ review and non-objection and may be subject to a background check at the sole
       discretion of the USG Parties.

2. Cable System Information

       Within sixty (60) business days of the execution of this LOA, and within fifteen (15)
       business days upon request by the USG Parties, Telxius agrees to make available the
       following MAREA Cable System Information:

       (a)    Network management information, including: (1) a network map that includes
              physical and logical topology; (2) network and telecommunications architecture
              descriptions and associated descriptions of interconnection points and controlled
              gateways to the DCI and Wet Infrastructure; (3) network operational plans,
              processes, and procedures; (4) locations and functions of any NOCs, data centers,
              and main distribution facilities; and (5) descriptions of interfaces and connections
              to the MAREA Cable System for service offload, disaster recovery, or
              administrative functions;

       (b)    Complete and current list of all contracts held by Telxius or its designee(s) for the
              maintenance and security of the MAREA Cable System; and

       (c)    A restoration plan for the Principal Equipment and the Wet Infrastructure for the
              MAREA Cable System.




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3. Operational Requirements

      With respect to the operation of the MAREA Cable System, Telxius agrees as follows:

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

      (b)    Telxius shall configure all necessary systems so the NOC will be able to initiate a
             suspension or interruption of the optical carrier signal or all of the MAREA Cable
             System within the DCI.

      If Telxius is required to interrupt traffic to or from the United States as a result of lawful
      U.S. process, Telxius shall be permitted to disclose publicly that it was required to
      interrupt service in response to lawful U.S. process, without disclosing any of the content
      of such request.


4. Initial Principal Equipment List

      Within sixty (60) business days of the execution of this LOA, Telxius shall provide the
      USG Parties with a list to include:

      (a)    A complete and current list of all Principal Equipment, including: (1) a
             description of each item and the functions supported, (2) each item’s
             manufacturer, and (3) the model and/or version number of any hardware or
             software; and

      (b)    Any vendors, contractors, or subcontractors involved in providing, installing,
             operating, managing, or maintaining the Principal Equipment.

5. Material Modifications to Existing Principal Equipment

      Telxius shall provide the USG Parties at least ten (10) business days’ advance notice
      prior to performing any maintenance, repair, or replacement that would result in any
      material modification to existing Principal Equipment for the MAREA Cable System.
      Telxius need not comply with the advance notice requirement for any maintenance,
      repair, or replacement that is undertaken in response to an unforeseen or uncontrollable
      event and that is necessary to ensure the continued operability of the MAREA Cable
      System; however, in such circumstances, Telxius shall provide advance notice to the
      USG Parties of the material modification, if practicable, and, if impracticable, Telxius
      shall provide notice within ten (10) business days after the material modification of the
      Principal Equipment. Telxius agrees to meet and confer with the USG Parties and to
      consider any concerns the USG Parties may raise about materials submitted pursuant to
      this provision.

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6. Change in Vendors, Contracts, or Subcontracts for Principal Equipment

      Telxius shall provide at least thirty (30) business days’ advance notice prior to making
      any modifications to the list of vendors, contractors, or subcontractors involved in
      providing, installing, operating, managing, or maintaining the Principal Equipment. In
      addition, Telxius shall provide at least thirty (30) business days’ advance notice prior to
      changing the service offerings or support from a previously-listed vendor, contractor,
      subcontractor (i.e., where a previously-listed provider will be offering support in a
      previously unidentified way). Telxius agrees to negotiate in good faith to resolve any
      national security, law enforcement, or public safety concerns the USG Partiesmay raise
      with respect to materials submitted pursuant to this provision.

7. Measures to Prevent Improper Use and Unauthorized Access

      Telxius agrees to take all reasonable measures to prevent unauthorized access to the
      MAREA Cable System and to prevent any unlawful use or disclosure of information
      carried on the same. Such measures shall include contractual safeguards and screening
      procedures for personnel with logical access to the DCI. In addition, Telxius will take
      appropriate measures to protect and promote resiliency of the MAREA Cable System,
      including measures to ensure that security patches for systems and applications are kept
      up to date. Telxius will submit a policy regarding logical security measures to the USG
      Parties within sixty (60) business days of the date of execution of this LOA. Telxius
      agrees to meet and confer with the USG Parties and to consider any concerns the USG
      Parties may raise about such policy.

8. Physical Security Measures

      Telxius agrees to take all reasonable measures to physically secure the MAREA Cable
      System, including the DCI. Telxius will screen appropriate personnel, and Telxius will
      require that all visitors who physically access the DCI are escorted at all times by
      Screened Personnel, as defined herein. Telxius will submit a policy regarding physical
      security measures to the USG Parties within sixty (60) business days of the date of
      execution of this LOA. Telxius agrees to meet and confer with the USG Parties and to
      consider any concerns the USG Parties may raise about such policy.

9. Screening of Personnel

      Telxius shall implement, either directly or through a vendor or service provider, a process
      to screen any existing or newly hired Telxius personnel (or any personnel performing
      under an agreement with Telxius) in at least the following circumstances:

      (a)    Any person whose position could involve logical access to the DCI; and

      (b)    All personnel charged with securing the DCI.



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       Telxius’s personnel screening process shall be reflected in a written policy and will
       include background investigations, public criminal records checks, or other analogous
       means to ascertain a person’s trustworthiness. Upon satisfactory completion of the
       requirements set forth in the screening policy, such persons shall be considered
       “Screened Personnel.”

       Telxius will submit the screening policy to the USG Parties within sixty (60) business
       days of the date of execution of this LOA. Telxius agrees to meet and confer with the
       USG Parties and to consider any concerns the USG Parties may raise about such policy.
       In addition, Telxius will cooperate with any reasonable request by the USG Parties to
       provide additional identifying information regarding Screened Personnel.

10. Reporting Incidents and Breaches

       Telxius agrees to report to the USG Parties promptly if it learns of information that
       reasonably indicates:

       (a)    Unauthorized third-party access to, or disruption or corruption of, the MAREA
              Cable System or any information being carried on the MAREA Cable System;

       (b)    Any other unauthorized access to or disclosure of Domestic Communications in
              violation of federal, state, or local law; or

       (c)    Any material breach of the commitments made in this LOA.

       Any reports required by this provision should be made in writing to the USG Parties
       within ten (10) business days of discovery of the relevant conduct. Telxius further agrees
       to cooperate with the USG Parties’ recommendations with respect to the remediation of
       such events and, to the extent such recommendations are not adopted by Telxius, to
       provide an explanation as to why such measures are not adopted. Telxius will provide
       this explanation, as well as a description of any other actions taken in response to a
       remediation recommendation from the USG Parties, within ten (10) business days of
       receipt of such recommendation.

11.   Instruction of Obligations

       Telxius shall instruct appropriate officials, employees, contractors, and agents as to
       Telxius’ obligations under this LOA, including the individuals’ duty to report any
       violation, and shall issue periodic reminders of such obligations. Telxius shall issue these
       instructions in writing within sixty (60) business days of the date of execution of this
       LOA. Telxius will submit a copy to the USG Parties at the same time.

12.   Change in Services or Cable Operations

       Telxius agrees that it will notify the USG Parties in writing at least thirty (30) business
       days prior to implementing any significant changes to the communications services or

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       operations of the MAREA Cable System such that the material representations made in
       the pending FCC Application(s) and associated materials are no longer fully accurate,
       true, and complete.

13.   Change in Control

       If Telxius learns of any information that reasonably indicates that any single foreign
       entity or individual, other than those already identified in connection with the pending
       FCC application(s), has or likely will obtain an ownership interest, whether direct or
       indirect, in Telxius or the MAREA Cable System above ten (10) percent, or if any
       foreign entity or individual, singly or in combination with other foreign entities or
       individuals, has or likely otherwise will gain either: (i) control, as determined in
       accordance with 47 C.F.R. § 63.09(b); or (ii) de facto or de jure control of Telxius,
       Telxius will provide notice in writing to the USG Parties within ten (10) business days.
       Notice under this Section shall, at a minimum:

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

       (b)    Identify the beneficial owners of any such increased or prospective increased
              ownership interest in Telxius or the MAREA 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
              likely will obtain in Telxius or the MAREA Cable System and, if applicable, the
              basis for their prospective control of Telxius or the MAREA Cable System.

14.   Annual Report

       On or before each anniversary of the date of execution of this LOA, Telxius will submit
       to the USG Parties a report assessing Telxius’ compliance with the terms of this LOA for
       the preceding year. The report shall include:

       (a)    The names and contact information of the then-current POCs;

       (b)    Cable System Information, as described in Paragraph 2 above, noting any changes
              during the reporting period;

       (c)    An updated Principal Equipment list containing all information described in
              Paragraph 4 above, identifying any material modifications during the reporting
              period;

       (d)    A copy of the then-current policies adopted in accordance with this LOA,
              including policies for logical security (Paragraph 7), physical security (Paragraph
              8), personnel screening (Paragraph 9), incident reporting (Paragraph 10), and

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              employee training (Paragraph 11), and a summary of any changes during the
              reporting period and the reasons therefore;

       (e)    A summary of any events that occurred during the reporting period that will or
              reasonably could impact the effectiveness of or compliance with this LOA; and

       (f)    A summary of any known acts of noncompliance with the terms of this LOA that
              occurred during the reporting period, 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.

15. Right to Third-Party Audits

       The USG Parties may require Telxius to obtain a third-party audit of its compliance with
       the terms of this LOA and to provide the USG Parties with the resultant audit report.
       Telxius understands the following requirements for such audits:

        (a)   If the right to third-party audits is availed by the USG Parties, Telxius will, within
              fifteen (15) business days of receiving such request, propose the third-party
              auditor, as well as the terms and scope of the audit.

       (b)    Once Telxius has submitted the proposed auditor and the terms and scope of the
              audit, the USG Parties will have thirty (30) business days to provide a response to
              the proposed auditor and the terms and scope of the audit. If the USG Parties do
              not respond to the proposed auditor, terms, and scope within thirty (30) business
              days, the proposed auditor and terms and scope will be deemed to have been
              accepted.

       (c)    Telxius shall reasonably address any concerns raised by the USG Parties and shall
              commence the audit within ninety (90) business days of reaching agreement on its
              scope and terms.

       (d)    The audit required by this section shall be undertaken solely at Telxius’ expense,
              and the USG Parties shall not be required to make any showing of cause to invoke
              this right to third-party audit. However, if the USG Parties invoke the right to a
              third-party audit, Telxius shall not be required to conduct another third-party audit
              until eighteen (18) months have passed from the conclusion of the previous audit.

16.   USG Parties Consultation and Visitation

       Telxius agrees to meet and confer with the USG Parties and to address any concerns the
       USG Parties may raise about materials submitted pursuant to this LOA.

       Telxius agrees to negotiate in good faith to resolve any national security, law
       enforcement, or public safety concerns the USG Parties may raise with respect to any
       matters set forth in this LOA.

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       Telxius agrees that, upon reasonable advance notice, the USG Parties may visit any part
       of the DCI to conduct on-site reviews concerning the implementation of the terms of this
       LOA and Telxius’ compliance with its terms. Subject to applicable law, during such
       visits, Telxius shall cooperate with the requests of the USG Parties to make available
       information, facilities, and personnel to verify compliance with the terms of this LOA.


This LOA shall inure to the benefit of, and shall be binding upon, Telxius and its successors,
assigns, subsidiaries, and affiliates.

Telxius agrees that, in the event the commitments set forth in this letter are breached, in addition
to any other remedy available at law or equity, the USG Parties may request that the FCC
modify, condition, revoke, cancel, terminate, or render null and void any relevant license, permit,
or other authorization granted by the FCC to Telxius or any successors-in-interest.

Telxius understands that, promptly upon execution of this letter by an authorized representative
or attorney for Telxius, the USG Parties shall notify the FCC that it has no objection to the
FCC’s grant of the pending application.


For and on behalf of Telxius Cable USA, Inc.




Guillermo Cañete
President
Telxius Cable USA, Inc.
1111 Brickell Avenue, Suite 1800
Miami, Florida 33131-3122
Tel: +1 305 925 5433
Email: guillermo.canete@telxius.com




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Document Created: 2017-10-05 12:39:01
Document Modified: 2017-10-05 12:39:01

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