Attachment Petition

Petition

PETITION submitted by AmericaSky Corporation

Petition

2005-01-26

This document pretains to SES-MOD-19950804-00603 for Modification on a Satellite Earth Station filing.

IBFS_SESMOD1995080400603_415641

OR1GINAL Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 1 RECEIVED - FCC In the Matter of ) 1 JAN 2 6 2005 AmericaSky Corporation kk~~ communicationCommasior. Petition for Determination of the Public Bureau / Office Interest under Section 3 10@)(4) of the 1 Communications Act of 1934, as 1 Amended, to permit certain Indirect Foreign ) Ownership in Satellite Earth Station Licenses 1 To: Chief, International Bureau PETITION FOR DECLARATORY RULING UNDER SECTION 310(B)(4) OF THE COMMUNICATIONS ACT OF 1934, AS AMENDED AmericaSky Corporation (“AmericaSky” or “Petitioner”), a corporation organized under the laws of the State of Florida, pursuant to and for the specific purposes of Section 310@)(4) of the Communications Act of 1934, as amended, (the “Act”), 47 U.S.C. §310@)(4), hereby petitions the Commission to issue a declaratory ruling that it is in the public interest to permit Almendral, S .A. (“Almendral”) to hold an indirect, controlling ownership interest, in AmericaSky Corporation, a satellite earth station licensee, through ENTEL-Chile and its subsidiaries ENTEL International BVI Corporation and ENTEL USA Holdings, Inc.’ 1 Concurrent with this petition, applications are being filed with respect to the Commission licenses of AmericaSky and of AmericaSky’s affiliate, Americatel Corporation, in connection with this potential change in control. They include applications for potential transfers of control of Americatel Corporation’s international Section 214 authorization and domestic Section 214 authorization and AmericaSky Corporation’s international Section 2 14 authorization and earth station licenses.

AmericaSky, a U.S. corporation, maintains and operates two earth station facilities licensed by the Commission for domestic and international satellite service? AmericaSky uses its earth stations to provide satellite earth station capacity for international traffic of other Commission-authorized carriers. This waiver request is filed in connection with the transfer of control of AmericaSky from its ultimate parent company, Telecom Italia International, N.V. (“TII”) to Almendral. As described in greater detail below, the transaction and the resulting indirect foreign ownership in AmericaSky would serve the public intere~t.~ I. PUBLIC INTEREST STANDARD Section 310(b)(4) of the Act requires the Commission to deny or revoke a common carrier license if: (1) more than 25 percent of any entity that controls the licensee is owned of record or voted by aliens, foreign governments or their representatives, or foreign corporations; and (2) the Commission finds that denial or revocation would serve the public interest. In the Foreign Participation Order: the Commission stated that, because additional foreign investment can promote competition in the U.S. market, the public interest would be served by permitting more open investment by foreign entities whose home market is a Member of the World Trade Organization (“WTO”). In such a case, the Commission has concluded that there is a strong presumption that no competitive concerns are raised by indirect foreign investment by such 2 File No. SES-MOD-19950804-00604 (Callsign KA407); and File No. SES-MOD- 19950804-00603 (Callsign KA4 12). Under separate cover, Applicant is relinquishing its authority under earth station license File No. SES-LIC-19940829-00744 (Callsign E940470). 3 Attached as Exhibit A is a chart that illustrates the corporate structure of the parties immediately following consummation of the proposed transaction. 4 Rules and Policies on Foreign Participation in the US. Telecommunications Market, Report and Order and Order on Reconsideration, 12 FCC Rcd 23891 (1997) (“Foreign Participation Order”). -2-

entities. The Commission expressed its reluctance to rebut this presumption except in exceptional circumstances where it is shown that entry into the U.S. market by a foreign telecommunications carrier from a WTO Member country poses a very high risk to competition in the U.S market. 11. THE TRANSACTION AmericaSky is 80% owned by Entel USA Holdings, Inc., a U.S. corporation (“ENTEL- USA”); and 20% owned by Entel International B.V.I. Corporation, a company organized under the laws of the British Virgin Islands (“ENTEL-BVI”). ENTEL-USA and ENTEL-BVI, in turn, are wholly-owned subsidiaries of ENTEL-Chile, a domestic and international long distance carrier in Chile organized under the laws of Chile. Through a stock purchase agreement dated January 24, 2005 (the “Stock Purchase Agreement”) Almendral will acquire a 54.76 percent voting interest in ENTEL-Chile from TII. As a result of the transaction, Almendral will hold a direct or indirect controlling interest of 54.76 percent in ENTEL-Chile.’ Therefore, as shown graphically on Exhibit A, Almendral will acquire an indirect controlling interest in AmericaSky once the Transaction is consummated. 111. THE “PRINCIPAL PLACES OF BUSINESS” ARE WTO SIGNATORIES In applying the analytical framework established by the Foreign Participation Order, the Commission uses a “principal place of business” test to determine whether a foreign entity’s 5 Under the terms of the Stock Purchase Agreement, it is possible that all or part of the ENTEL-Chile shares to be acquired by Almendral, will be held by a yet-to-be-formed wholly-owned Chilean subsidiary of Almendral (the “Subsidiary”). The insertion of a wholly-owned subsidiary as the holder of all or part of the stock of ENTEL- Chile will not affect the ultimate control of AmericaSky as described in this Petition. To the extent any ownership interests of ENTEL-Chile will be ultimately held by such a Subsidiary, Petitioner will promptly notify the Commission prior to the Closing. -3-

home market is a Member of the WT0.6 The five factors balanced under that test, as they apply to Almendral are as follows: 1. Place of incorporation: Almendral is incorporated under the laws of Chile. 2. Nationality of investment princbals, officers and directors: All of Almendral’s principal investors, executive officers and directors are Chilean. Almendral is directly and indirectly owned and controlled by a group of Chilean investors as described in detail in Exhibit B. There are no other 10% or greater stockholders of Almendral. 3. Country in which its world headquarters is located: Almendral’s headquarters is located in Chile. 4. Countrv in which the majority of its tangible PropertY is located: The majority of Almendral’s tangible property is located in Chile. 5. Country from which it derives the greatest sales and revenues from its operations: Almendral derives its greatest sales and revenues from its operations in Chile. Based on the foregoing, Almendral’s principal place of business on balance should be considered Chile, which is a member of the WTO. Therefore, although Almendral’s proposed indirect ownership of AmericaSky, exceeds the 25 percent benchmark under the Commission’s Foreign Participation Order, there is a strong presumption that no competitive concerns arise from this indirect foreign ownership interest because Almendral’s home market is Chile, a WTO Member country. Further, there is no countervailing risk to competition in the U.S. market to rebut this presumption. Therefore, the proposed indirect ownership is in the public interest. IV. CONCLUSION Foreign Participation Order 7 1 16; Market Entry and Regulation of Foreign-Affiliated -4-

For the foregoing reasons, indirect transfer of control of AmericaSky will advance the public interest by furthering competition among U.S. carriers. Accordingly, the Petitioner respectfully requests that the Commission grant its Section 3 1O(b)(4) waiver request and find that it is in the public interest for Almendral to hold indirectly a controlling interest in AmericaSky. Respectfully submitted, AMERICASKY CORPORATION By: Troy F. Tanner, Esq. Ulises R. Pin, Esq. SWIDLER BERLIN LLP 3000 K Street, N.W., Suite 300 Washington, D.C. 20007 Tel: (202) 424-7500 Fax: (202) 424-7645 Counsel to AmericaSky Corporation Dated: January 26,2005 Entities, IB Docket 95-22, 11 FCC Rcd 3873 (1995) (“Foreign Carrier Entry Order”)7 207. -5-

EXHIBIT A Illustrative Chart of Transfer of Control

AmericaSky Corporation Ownership Pre-Transaction Telecom ltalia S.p.A. I 100% Telecom ltalia International N.V. Ernpresa Nacional de Telecommunicaciones S.A. (ENTEL-Chile) B.V.I. Corporation 20% Holdings, Inc. 80% L AmericaSky Corporation (Licensee)

ArnericaSky Corporation Ownership Post-Transaction Alrnendral, S.A. ~~ Ernpresa Nacional de Telecornrnunicaciones S.A. (ENTEL-Chile) B.V.I. Corporation I 100%1 20% 80% L ArnericaSky Corporation (Licensee) 2

EXHIBIT B ALMENDRAL OWNERSHIP INFORMATION Almendral, S.A., is controlled by a group of its shareholders through a shareholders agreement dated as of January 24, 2005. The groups of shareholders that are parties to the shareholders agreement hold the following percentage of ownership interest in Almendral. Shareholders Group Percentage of Ownership Fernandez Leon Group 15.036% Hurtado Vicufia Group 1 1.227% Matte Group 21.032% Izquierdo Group 12.759% Gianolli Group 6.309% Consorcio Group 8.208% TOTAL MAJOR SHAREHOLDERS 74.571% The remaining shares representing 24.429% of Almendral are distributed among numerous minority shareholders, none of which has a greater than ten percent (10%) ownership interest in Almendral. Each of the shareholder groups are owned and controlled by the following persons: Name/Address % Held Citizenship Principal Business FERNANDEZ LEON GROUP Fernandez Leon Family7 15.036% Chile Investment Isidora Goyenechea 3642, Piso 7 Las Condes Santiago, Chile HURTADO VICURA GROUP Hurtado Vicufia Family' 11.227% Chile Investment Avenida El Bosque Norte No. 130, Piso 14 Las Condes Santiago, Chile 7 The Fernandez Leon family is formed by Mr. Eduardo Femandez Leon, his wife Valeria Mac Auliffe Granello, and their children Eduardo Fernandez Mac Auliffe and Tomas Fernandez Mac Auliffe. 8 The Hurtado Vicuiia family is formed by Mesrs. Jose Ignacio Hurtado Vicuiia, Maria Mercedes Hurtado Vicuiia, Maria Victoria Hurtado Vicuiia, Juan Jose Hurtado Vicuiia, Jose Nicolas Hurtado Vicuiia, and Pedro Jose Hurtado Vicuiia.

MATTE GROUP Matte Family' 21.032% Chile Investment Teatinos No. 220, Piso 9 Santiago, Chile IZQUIERDO GROUP Izquierdo Family" 12.759% Chile Investment Mar del Plata No. 21 1 1 Providencia, Chile GIANOLLI GROUP Gianolli Family' 6.309% Chile Investment Isidora Goyenechea 3642, Piso 7 Las Condes Santiago, Chile CONSORCIO GROUP'* Avenida El Bosque No. 180 8.208% Chile Investment Las Condes Santiago, Chile 9 The Matte Family is formed by Messrs. Patricia Matte Larrain, Eliodoro Matte Larrain and Berdardo Matte Larrain. 10 The Izquierdo Family is formed by Messrs. Vicente Izquierdo Taboada, Fracisco Rodrigo Izquierdo Valdes, Jose Manuel Izquierdo Valdes, Luis Eduardo Izquierdo Valdes, Maria Josefina Izquierdo Valdes, Maria Teresa Izquierdo Valdes and Roberto Izquierdo Valdes. I1 The Gianolli Family is formed by Messrs. Elina Patricia Gianolli Gainza and Sergio Pedro Gianolli Gainza. 12 The Consorcio Group is formed by two principal shareholders: (i) Consorcio Corredores de Bolsa, S.A. and (ii) Compaiiia de Seguros de Vida Consorcio Nacional de Seguros, S.A. Each of these companies is owned in equal parts by (a) the Hurtado Vicuiia Family, on the one part; and (b) Messrs. Eduardo Fernandez Leon and Jose Antonio Garces Silva. 91 9 5 7 4 8 ~ 2


Document Created: 2005-02-01 10:35:47
Document Modified: 2005-02-01 10:35:47
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