Attachment Petition

Petition

PETITION submitted by DOJ, FBI, DHS

Petition

2006-08-03

This document pretains to SES-T/C-20060407-00592 for Transfer of Control on a Satellite Earth Station filing.

IBFS_SESTC2006040700592_525379

ORIGINAL Before the communicarions commssion Washington, DC 20554 RECEIVED In the Mater of ) AUG ~ 3 2006 ) CenturyTel, Inc., ) 1B File Nos Fadeal Communicaton Comnission Traniferor, ) Otter t Secntay ) rrc—tc—200s0407.00244 and ) sEs—7C—20060407—00501 ) SEs—7C—20060407—00802 Balaton Group Inc., ) Transferee, ) ) Application for Consent to Tranifer Control of ) SkyPortIntermational, Inc. ) re To aborr conprtions To AUTHORIZATIONSAND LICENSES epartment of Justice (‘DO"),including the Federal Bureau of Investigation (FBI", togeth@f with the United States Department of Homeland Security (‘DHS")(callectively, the % ies"), respectfully submit this Petition to Adopt Conditions to Authorizations and Licenses (‘Pition"), pursuantto Section 1.41 ofthe Federal Communications Commission‘s[FCC" o "Commission‘) rules.\ Through this Peition, the Agencies advise the Commisiod thattheyhave no objection to the Commission granting its consent in the above—refereniced froceeding, provided that the Commission conditions the grant on SkyPort International, Inc. (‘Bhy Port"), SkyComm Technologies Corporation (‘SkyComm®) and the Balaton Group Inc.("Balfton") (together, the "Applicants") abiding by the commitments and undertakings contained in th#ir July 31, 2006 ette to Sigal P. Mandelker, Stewart A. Baker, and Elaine N. Lammert (the "Leffer®) attached hereto as Exhibt 5 4TCBR §141

In the abovercaptibned proceeding, CenturyTel, Inc., which currently controls SkyPortthrough the ownership debtsecurites in SkyPort‘s parent company, SkyComm, proposes to transfer control of SByComm to Balaton. CenturyTel and Balaton have filed applications with the FCC seckid consentto the indirecttransferof control o Balaton of SkyPort, which holds two fixed station authorizations, one VSAT authorization and one Intermational Section 214 athorigation (the "Applications")." As the Commnissifn is aware, the Agencies have taken the position thattheir abiliy to satisty their obligationglto protectthe national security, enforce the laws, and preserve the safetyof the public could belmpaired by transactions in which foreign entities will own or operate a partof the U.S. telecorfimunications system, oin which foreign—Located facilitieswill be used to provide domestictelegmmunications services to U.S. customers. Afterdiscussions with h Applicants® representatifes in connection with the proposed acquisition of SkyComm by Balaton and the related tranifer control over Sky Port, the Agencies have concluded that the commitments se forth in the Leler are sufficient to ensure that the Agencies and other entites with responsiblity for enfortinglive law, protecting the national security, and preserving public safety can proceed in a legal, seaire, and confidential manner to satisfy these responsibiites Accordingly, the Agencies herefp advise the Commission that they have no objection to the Commission granting the above—feferenced Applications, provided that the Commission conditions ts consent on commplighceby the Applicants with the commitments set forth in the Lete 2 See Public Notice, Sptellfe Radio Applications Accepredfor Filing, Report No. SES— 00812 (rel. Apr. 19, 2006) (ncluling 1B File Nos, SES—T/C—20060407—00591 and SES—TIC— 20060407—00502); Public Notied) Sreamlined International Applications Acceptedfor Fling, Report No. TEL—010218 (rel Aff. 28, 2006) (including IB File No. ITC—T/C—20060407—00244)

The Agencidsardbuthorized to statethat the Applicants do not object to the grant ofthis Peition Respectfully submitd, is/ SIGAL P. MANDEL is BLATNE N. LAMMERT Sigal P. Mandelker Elaine N. Lammert Deputy Assistant Aftomey Gen Deputy General Counsel Office of the Assistant Attomey meral Federal Bureau of Investigation Criminal Division — Room 2113 923 Pennsylvania Avene, NW, United States Department of Jusfice Washington, DC 20532 950 Pennsylvania Avent, NV (202) 324—1530 Washington, DC 20530 (202) 30s—s310 is! STEWARTA BAKER Stewart A. Baker Assistant Secretay of Policy U.S. Department of Homeland 3801 Nebraska Avenue, N.W. Washington, DC 20528 (202) 282—s080 August 3, 2006

Exmemt

July31, 2006 Ms. Sigal P. Mandclker | Deputy Assistant Attomey Genefal U.S. Department ofJustice 950 Pennsylvania Avenue, N.W Washington, D.C. 20530 Mr. Stewart A. Baker —| Assistant Secretary for Poli U.. Department ofHomel urity 3801 Nebraska Avere, N: Washington, D.C. 20528 Ms. Elaine N. Lammert Deputy General Counsel Federal Bureau ofInvest 935 Pennsylvania Avenue, Washington, D.C. 20530 Re: ased Ac Dear Ms. Mandelker, Mr. B SkyPort In , Inc. (‘SkyPort‘), ts parent company SkyComm Technologies Corporation 3’;: omm") and the Balaton Group Inc.(‘Balaton) (callectively, the "Signatories") provide thi tr in response to the request ofthe Department ofHomeland Security (‘DHS7)the ofJustice (‘DOT") and the Federal Bureau ofInvestigation (‘FBIY) (collectively,the "Eo ive Agencies") for certain assurances with respect to Balaton‘s proposed cquisition ofan indi 1, controllinginterest in SkyPort. t Overview of the Partiestind the Transaction A. SkyPort SkyPort provides ied broadband satellite and terrestral communications services, including voice, d leo, and Internet backbone services. A Texas corporation, SkyPortis headquartered in Hot on, Texas, whereits teleport and Global Network Operations Center also are located. St oldsuthorizations granted by the Rederal Communications Commission (‘FCC") purs "itle 1t and Tite IlIofthe Communications Act of 1934, as amended (the "Communicatio et‘). SkyPort is a bhot owned subsidiary of SkyComm,a holding company incorporated in Delaware. mm‘s voting equity currentl is held by a diffuse group of individuals and entites. C el,Inc.(*CenturyTel‘), a mid—sized telecommunications company incorporated in and headquartered in Monroc, Louisiana,holds convertible vommso1

debentures thatgive it contl ofkyComm. These debt sccurities entitle CenturyTel o an approximately 65% voting intergst in SkyComm and provide CenturyTel the right to appointhalf of SkyComm‘s board of dirgeto@g. SkyComm does not hold any FCC authorizations other than through SkyPort B. Balaton Balston, a Cénadf corporation headquartered in Toronto, Ontario,is a private equityfrmspecializing in cupi markets, corporate restructuring, and strategic development. Balaton‘s primary business is infestments, Balaton is wholly owned by the following five individuals, each ofwhomis a Cénadian citizen Robert Kubbernus (30%), Martin Doane (30%), Bill Calsbeck (20%), Pall Heney (15%), and Bryson Rarrill (5%). Neither Balaton nor any ofts subsidiaries holds any PCC authorizations. C. The Proposéd Térnsaction On February 15, 006, Bataton and the current owners ofSkyComm entered into severaltransaction agreements suant to which Balston will obtain an approximately 83% equity nterest in SkComm (th ‘Proposed Transaction‘). Upon completion ofthe Proposed Transaction, the remaining 17% f SkyComm will be owned by certain of SkyComm‘s existing sharcholders, whose individal g ership will be substantiallydiuted and range from approximately 0.002% to 2.7389. All ofthese remining sharcholders are U.S. citizens, with the exception ofonindividbal, French citizen thatthe Signatories have been untble to locate, who will own less than 0.5% of $kyComm. CenturyTel no longer will hold any interest in SkyComm. Consummation ofthe Proposed Transaction is subject to a number of closing conitions, including the redeiptf requiste regulatory approvals. On April 7, 2006, CenturyTel, SkyPort and Balato filed applications with the FCC for consent to the transfer of control of SkyPort from Ceitaryfelto Balaton, Those applications remain pending. The Signatories wish o consumiatefhe Proposed Transaction in the July—August 2006 timeframe. 11. Specific Commitments Assuming consu ation ofthe Proposed Transaction, the Signatories undertake the following commitments to Executive Agencies: 1. Storage offRecords in the United States. The Signatories agree that,for all customer biling records, subscriber information, and any other related information used, processed, or maintained in the dfdinary coursofbusiness relating to communications services offered to U.S. persons ("U 8. Réords), SkyPort will store such U.S. Records n the United States. For these purposes, U.S, Records shall include information subject to disclosureto a U.S Federalo state governmentil eaity under the proceduzes specified in Sections 2703(c) and (d) and Section 2709 of Title 18 of the United States Code. SkyPort agrees to ensure that U.S Records are not made subjectto fnandatory destruction under any foreign laws. SkyPort agrees to take all practicable measures prevent unsuthorized access to, or disclosure ofthe content of communications or U.S. Resordi) in violation of any U.S. Federal, state, or locallaws or of the commitments set forth in this let vovnsoi

2. Coopetatiin with LawEnforeement Requests. The Signatories commit that, in the event that there is a to conduct lawfully authorized surveillance through SkyPort‘s facilities or serviges, SkyPort will take reasonable measures to assist and support the FBI or any other United States fideral, state or local ageney with law enforcement, public safety or national security responsibiliGes in conducting lawfully authorized electronic surveillance. Such assistance shallinclude, bi not be limited to, disclosure, ifnecessary, oftechnical and engineering information relitinglfo the design, maintenance or operation of SkyPort‘s systems. SkyPort and the agency secking Booperation will work together in determining what is reasonable, taking into accouint ie investigative needs of the agency and SkyPort‘s commercial interests. 3. Estbl t of a U.S. Citizen aw Enforeement Point ofContact SkyPort will designate a represe ative who is a United States citizen to serve asits authorized Pointof Contact for U.S. Gaver ent offiials in connection with the conduct of lwlully authorized electronic surveillon Within 14 days ofthe consummation ofthe Proposed Transaction, SkyPort wl info the Executive Agencies by letter addressed to each of you of the name of the designated Sky it Point of Contact. SkyPort will inform the Executive Agencies by letter within 10 da; ofany change in such Point of Contact. Officer, SkyPort will designate a tes citien to serve as its Sccurity Officer. The Security Officer will beresponsible fort implementation of SkyPort‘s Security Policy and its compliance with the commitme contained in this letter. Within 14 days of the consummation ofthe Proposed Transaction, S ort willinform the Executive Agencies by letter addressed to each of you ofthe name orthe d ignated SkyPort Security Officer. SkyPort will inform the Exceutive Agencies by letter wit 10 days of any change in such Security Officer 5. Establishient ofa Security Policy. Within 90 days of the consummation ofthe Proposed Transaction} SkfPort will establish, and submit to the Executive Agencies for review, a Security Policy governifig the policies, practices and procedures related to or materilly affecting SkyPort‘s actions dono@rming: (a) requests fom a Foreign government or other Foreign entity for U.S. Records, to cbndit electronic surveillance using the domestic communications network, ort obtain informatiog relsting to domestic communications or clectronic survcillance conducted using the domestic cofmunications network;(b) equests odirectives from a Foreign government oother Foreign ently to alter, affect or obtain information about the operations, security, personnel orinfrastrustle ofthe domestic communications network; (c)any decision by SkyPortinvolving docuntent freservation requests fom any government agency in the United States related to the domestit coflmunications network, where those decisions relate to Foreign lavs or requests from a Fordign §vernment or other Foreign entity; (d) anyrequests or directives from a Foreign govertinent or other Foreign entity relating to the preservation, storuge,retention or destruction documents related to the domestic communications network; (€) any attempt by a Foreign govinment or other Foreign entity to induce an employec of SkyPort to violate United Stites fim;and (P any decision by SkyPort relating to compliance with lavful U.S. process where Foreigh laws or requests from a Foreign government or other Foreign entity may be factor. (or purripses ofthis etter,the term "Foreign" means non—U.S.; the term "Foreign govemment" mears any government,including an identified representative, agent, component or subdivision therea$, that is not a local, state or Federal government in the United States; and the term "domesti¢ edjmmunications" means (x)wire communications or electronic | 3 bovesor |

communications (whether s not)ffom one U.S. location to another U.S. location and (y) the U.S. portion ofa wite ication or elestronic communication (whether stored or not) that originates or terminates in th United States) The Security Policy also will provide for SkyPort to conduct additional bi ground screening ofspecified key U.S. employees upon the Exceutive Agencies‘ request fie event ofany subsequent materil changes to the Security Policy, SkyPort shall promptly bmit such changes to the Executive Agencies for review. 1f, within thity (30) calendar days Mlowing submission to the Exceutive Agencies of the Security Policy or material changes theret , the Executive Agencies provide comments o SkyPort on the Security Policy or the changes, $ yPort agrees to reasonably address such comments. | 6. ion—Disclisure ofU.S. Records. SkyPort agrees that it will not, directly or indirectly, disclose or permit disclosure ofor access to U.S. Records, or to any information ieations) pertaining to a wiretap order, pentrap order, y a U.S. law enforeement agency for U.S. Records,to any obtaining the express writted coflient ofthe DOJ and DHS or the authorization ofa court of competentjurisdiction in the States, Any such requests or legal process submitted by a Foreign governmentto Skyl I be referred to the DOJ and DHS as soon as possible, and in no event later than five () s days after such request or legal process is received by or known to SkyPort, unless disilosure of the request or legal process would be in violation of U.S. law or an order ofa coirt irfthe United States. 1f, upon the later of: (a) seven (7) business days following the Executive Afncies‘ receipt of SkyPort‘s refermal, or (b)five (5) business days prior t the Answer Da Executive Agencies have not acted, then SkyPort may respond to such request olégal frocess as it deems appropriate and in a manner consistent with its Security Policy, and SkyRart thereatter shall promptly advise the Excutive Agenciesin writing ofts actions, 1f,in djent ofexigent circumstances, the Answer Date i less than ight (8) business days from the flate SkyPort receives the requestor legal process, these time petiods do not apply, but SkPorf shall use its best efforts under the circumstances to consult with the Exceutive Agencied beffre responding, and will in any event notify the Exceutive Agencies: 1) relative to SkyPortl receiptof the request or legal process, not late than one (1) business day following suchreedipt; and 2) relative to SkyPort‘s response to such request or Tegal process,notlater than One (1) business day from the date SkyPort submits ts response. 7. Notfi . SkyPort agrees that it will notify the FBI, DOJ, and DHS prompily if there are materiact wes in any ofthe ficts as represented in thisleter or in the event that SkyPort aequires gontlbl (asdefined in 47 C.F.R. § 63.09(b)) of another telecommunications carrier. All Botices t be provided to the FBI, DOJ, or DHS shall be directed to the named addredseedbothisleter. 8. Re SkyPort agrees that, in the event the commitments se forth in this letter are breached,in to any other remedy availsble atlaw or equity, the DOJ, FBI, or DHS may request thatthd FC@ modify, condition, revoke, cancel, or render null and void any relevant license, permit, or dtherButhorization granted by the FCC to SkyPort or any successor— incinteres to SkyPort. | pomesor

Nothing in this lett is intended to excuse the Signatories from any obligation they may have to comply with U; Jegal requirements for the retention, preservation, or production ofinformation, record r data, or from any applicable requirements ofthe Communications Assistance Enforcement Act, 47 U.S.C. § 1001, et. sea., nor shall this Jetter constitute a waiver of: (@) obligation imposed by any U.S. Rederal, state or local laws on the Signatories,(b)any enfore ent authority available under any U.S. or state laws, (¢) the sovereign immunity ofthe United 1ates, or (3) any authority the U.S. government may possess (including, without imitation} aut rity pursuant to the International Emergency Economic Powers Act, 50 U.8.C. § 1701, et .) over the activities of the Signatories. Nothing in this letter is intended to, nor shall it to interpreted to require the partiesto violate any applicable US. law. Likewise, nothing letter limits the right ofthe United States Government to pursue criminal sanctions or s agninst the Signatories, and nothing in this etter provides the Signatories with any relie civil Habiliy. We understand upon execution ofthis etter by the authorized representatives for the Signatories, the Execuli gencies shall notify the FCC thatthe Executive Agencies have no objection to the FCC)s g t ofthe applications fled for the FCC‘s consent to the Proposed Transaction. The commitments t forthin this leter shall not be binding on the Signatories if the Proposed Transaction dos Hose. Sincerely, BALATON GB p oy .y. CAd efident sicycomm TEcrnoLootEs corroration By: RogerKlow Title: ChiefExeeutive Officer and President SKYPORT INTERNATIONAL, INC. By: RogerKlow "Title: Chief Executive Officer and President pcoesse1

seees Nothing in thi is intended to excuse the Signatories fom any obligation they may have to comply with U;§. legal requirements for the retention, preservation, or production of information, or data,or from any applicable requirements ofthe Communications Assistance for Uibw Enforcement Act, 47 U.S.C. § 1001, seg., nor shall this letter constitute a waiver of: (a) obligation imposed by any U.S. Federal, state or local laws ent authority available under any U.S. or state laws, (¢) the soverign immunity ofthe UpitedStates,or (d) any authority the U.S. government may possess (including, without limitatio rity pursuant to the International Emergency Economic Powers Act, 50 U.S.C. § 17 over the activities of the Signatories. Nothing in this letter is intended to, nor shall it tdbe interpreted to, require the parties to violate any applicable U.S. law. Likewise, nothinghn ts leter limits the right ofthe United States Government to pursue criminal sanctions or Eharifes against the Signatorics, and nothing in thisleter provides the Signatories with any reli civil Habiliy. We und upon execution ofthis etter by the authorized representatives for the Signatories, the Ex gencies shall notify the FCC that the Excentive Agencies have no objection to the FC t ofthe applications filed forthe FCC‘s consent to the Proposed Transaction. The commit et forth in thisletter shall not be binding on the Signatoriesif the Proposed Transaction dobs close. Sincerely, BALATON GROUP INC. By: Robert Kubbernus Title: President SICYCOMM TECHNOLOGIES CORPORATION By: "RogerKiot Title: ChiefExecutive Officer and President SKYPORT INTERNATIONAL, C. m ;oger Kiot % Title: Chief Executive Officer and President vomsm


Document Created: 2006-09-01 11:55:48
Document Modified: 2006-09-01 11:55:48
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