# Before the {#before-the .unnumbered}

# Federal Communications Commission {#federal-communications-commission .unnumbered}

# Washington, D.C. 20554 {#washington-d.c.-20554 .unnumbered}

In the Matter of )

)

TYCOM ATLANTIC (US) INC. )

)

Application for a License to Land and ) File No. SCL-LIC-20000308-00007

Operate a Private Fiber-Optic Cable )

System Between the United States )

Mainland and the United Kingdom )

)

)

# CABLE LANDING LICENSE {#cable-landing-license .unnumbered}

**Adopted: August 8, 2000 Released: August 8, 2000**

**By the Chief, Telecommunications Division, International Bureau:**

# Introduction

1\. In this Order, we grant the Application of TyCom Atlantic (US) Inc.
(TyCom) under the Cable Landing License Act[^1] and Executive Order No.
10530[^2] for authority to land and operate a private fiber optic
submarine cable system extending between the United States and the
United Kingdom (TyCom Atlantic). This system will be operated on a
non--common carrier basis. We find that TyCom has provided sufficient
information under our rules to comply with the Cable Landing License Act
and that it would serve the public interest to grant the cable landing
license subject to the conditions listed below.

# Application

2\. According to the Application, TyCom, a Nevada corporation, is a
wholly-owned subsidiary of TyCom Networks Limited (TyCom Networks) a
Bermuda company, itself a subsidiary of Tyco International Ltd. (Tyco)
also a Bermuda company.[^3] TyCom has certified that it is not itself a
carrier nor is it affiliated with any foreign carrier.[^4]

3\. According to the Application, the proposed cable system will be a
digital fiber-optic system consisting of four fiber pairs (with a
possible upgrade to eight fiber pairs) with a minimum design capacity of
640 Gbps per fiber pair. The system will have a self-healing ring
configuration consisting of a northern segment and a southern segment
each of which will contain four optical fiber pairs and each of which
will be capable of carrying a minimum of 64 wavelengths of traffic with
each wavelength operating at a nominal rate of 10 Gbps. The cable will
connect Wall Township, New Jersey, and Brean, United Kingdom.[^5]

**III. Comments**

4 We placed the Application on public notice on March 17, 2000.[^6] We
did not receive any comments. Pursuant to Section 1.767(b) of the
Commission\'s rules,[^7] the Cable Landing License Act, and Executive
Order No. 10530, we informed the Department of State of the
Application.[^8] The Department of State, after coordinating with the
National Telecommunications and Information Administration and the
Department of Defense, stated that it has no objection to issuance of
the cable landing license.[^9]

# Discussion

**A. Private Submarine Cable Policy**

5\. TyCom proposes to operate the cable as a non--common carrier
submarine cable system under which capacity will not be offered
indifferently to the user public.[^10] TyCom requests a license under
the Commission\'s private submarine cable policy, which is intended to
promote competition in the provision of international transmission
facilities.[^11] Pursuant to this policy, the Commission has authorized
non--common carrier cables where: (1) there is no legal compulsion to
serve the public indifferently; and (2) there are no reasons implicit in
the nature of the operations to expect the applicant would make capacity
available to the public indifferently and indiscriminately.[^12]

6.  In applying the first prong of the test to submarine cable
    authorizations, the Commission has stated that there will be no
    legal compulsion to serve the public indifferently where there is no
    public interest reason to require facilities to be offered on a
    common carrier basis.[^13] This public interest analysis has
    generally focused on whether an applicant will be able to exercise
    market power because of the lack of alternative facilities.[^14]
    Where there are sufficient alternatives, the Commission has found
    that the licensee will lack market power and will not be able to
    charge monopoly rates for cable capacity.[^15] The Commission has
    found that, in those circumstances, the public interest would be
    served by allowing a submarine cable to be offered on a non-common
    carrier basis.[^16]

7.  TyCom asserts that there are sufficient existing and planned
    facilities on the route to prevent TyCom from exercising market
    power in offering services to the public including numerous existing
    common carrier cables and existing and planned non-common carrier
    cables.[^17] The cable systems cited by TyCom include the following
    cables extending between the United States and the United
    Kingdom: (1) PTAT,[^18] (2) Gemini,[^19] (3) TAT-8,[^20] (4)
    TAT-9;[^21] (5) TAT 11,[^22] (6) TAT-12/13,[^23] (7) Atlantic
    Crossing-1 (AC-1),[^24] (8) FLAG Atlantic-1,[^25] (9)
    Hibernia,[^26] (10) Level 3's transatlantic cable,[^27] (11)
    TAT-14,[^28] and (12) PTAT. PTAT, Gemini, TAT-8, TAT-9, TAT-11,
    TAT-12/13, and AC-1 are all operational cables that extend between
    the United States and the United Kingdom. The FLAG Atlantic-1,
    TAT-14, Hibernia, and Level 3 cable systems have been authorized by
    the Commission, but we are not yet aware of whether or not these
    cables are operational. In addition, TyCom has stated that it is not
    affiliated with any foreign carriers and, accordingly, does not
    control any bottleneck facilities in the market the proposed cable
    system will serve.[^29]

8.  No one has advocated that the public interest requires TyCom to
    operate its cable on a common carrier basis. Given the unopposed
    evidence of the availability of alternative cables and TyCom's
    representation it does not have any affiliate carriers with market
    power in the cable landing country, we find that it would not serve
    the public interest to impose common carrier regulation on the
    operations of TyCom's proposed system at this time. We note,
    however, that we maintain the ability to impose common carrier or
    common-carrier-like obligations on the operations of this or any
    other submarine cable system if the public interest so
    requires.[^30] Furthermore, we have always maintained the authority
    to classify facilities as common carrier facilities subject to Title
    II of the Communications Act if the public interest requires that
    the facilities be offered to the public indifferently.[^31]

9.  Regarding the second prong of the test, we conclude that there is no
    reason to expect that capacity in the proposed cable system would be
    held out to the public indifferently. TyCom states that capacity
    will not be sold indifferently to the user public. Instead, capacity
    will be assigned pursuant to \"individualized decisions.\"[^32] We
    therefore conclude that TyCom intends to operate the cable system on
    a non-common carrier basis.

10. We conclude that TyCom will not offer capacity in the TyCom Atlantic
    system to the public on a common carrier basis and that the public
    interest does not require that they do so. Accordingly, we conclude
    that it is appropriate to license the TyCom Atlantic system on a
    non-common carrier basis. We also find that TyCom will not provide a
    telecommunications service for a fee to such a class of users as to
    be \"effectively available directly to the public\" and thus will
    not be a \"telecommunications carrier\" under the Telecommunications
    Act of 1996.[^33]

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B.  **Ownership and Landing Points**

11\. TyCom has provided the ownership information required by Section
1.767(a)(6) and Section 63.18 of the Commission\'s rules.[^34] The
Applicant will own the United States landing site as well as the wet
portion of the cable within U.S. territorial waters. The wet portion of
the cable in international waters will be owned by TyCom Networks. The
United Kingdom landing site as well as the wet portion of the cable
within the territorial waters of the United Kingdom will be owned or
otherwise controlled by a wholly-owned U.S. subsidiary of TyCom
Networks.

12\. The Application states that the TyCom Atlantic cable landing
station in the United States will be located in Wall Township, New
Jersey at coordinates 47 degrees 08.00' north, 74 degrees 03.00'
west.[^35] In the United Kingdom, the cable landing station will be
located in Brean, U.K. at coordinates 51 degrees 15.500' north, 2
degrees 57.800' west.[^36] Maps of both cable landing sites are included
with the Application.

**C. Environmental Impact**

13\. The Commission has found that the construction of new submarine
cable systems, individually and cumulatively, will not have a
significant effect on the environment and therefore should be expressly
excluded from our procedures implementing the National Environmental
Policy Act of 1969.[^37] Therefore, the Applicant is not required to
submit an environmental assessment, and this Application is
categorically excluded from environmental processing.

**V. Conclusion**

14\. We grant TyCom\'s Application for authority to land and operate a
non‑common carrier fiber optic submarine cable extending between the
United States and the United Kingdom, subject to the conditions listed
below.

# Ordering Clauses

15\. Consistent with the foregoing, we hereby GRANT AND ISSUE TyCom a
license to land and operate a non--common carrier fiber optic submarine
cable system (consisting of four fiber pairs (with a possible upgrade to
eight fiber pairs) extending between landing points at cable stations at
Wall Township, New Jersey and Brean, United Kingdom) under the
provisions of the Cable Landing License Act and Executive Order 10530.
This grant is subject to all rules and regulations of the Commission;
any treaties or conventions relating to communications to which the
United States is or may hereafter become a party; any action by the
Commission or the Congress of the United States rescinding, changing,
modifying, or amending any rights accruing to any person hereunder; and
the following conditions:

\(1\) The location of the cable system within the territorial waters of
the United States, its territories and possessions, and upon its shore
shall be in conformity with plans approved by the Secretary of the Army,
and the cable shall be moved or shifted by the Licensee at its expense
upon the request of the Secretary of the Army whenever he or she
considers such course necessary in the public interest, for reasons of
national defense, or for the maintenance or improvement of harbors for
navigational purposes;

\(2\) The Licensee shall at all times comply with any requirements of
U.S. government authorities regarding the location and concealment of
the cable facilities, buildings, and apparatus for the purpose of
protecting and safeguarding the cable from injury or destruction by
enemies of the United States;

\(3\) The Licensee or any persons or companies controlling it,
controlled by it, or under direct or indirect common control with it do
not enjoy and shall not acquire any right to handle traffic on a common
carrier basis to or from the United States, its territories, or its
possessions unless such service be authorized by the Commission pursuant
to Section 214 of the Communications Act, as amended;

\(4\) The Licensee or any persons or companies controlling it,
controlled by it, or under direct or indirect common control with it
shall not acquire or enjoy any right to land, connect, or operate cables
that is denied to any other United States company by reason of any
concession, contract, understanding, or working arrangement to which the
Licensee or any persons controlling it, controlled by it, or under
direct or indirect common control with it are parties;

\(5\) Neither this license nor the rights granted herein shall be
transferred, assigned, or in any manner either voluntarily or
involuntarily disposed of or disposed of indirectly by transfer of
control of the Licensee to any persons, unless the Commission shall give
prior consent in writing;

\(6\) The Commission reserves the right to require the Licensee to file
an environmental assessment or environmental impact statement should it
determine that the landing of the cable at those locations and
construction of necessary cable landing stations would significantly
affect the environment within the meaning of Section 1.1307 of the
Commission\'s procedures implementing the National Environmental Policy
Act of 1969; this license is subject to modification by the Commission
upon its review of any environmental assessment or environmental impact
statement that it may require pursuant to its rules;

\(7\) Pursuant to Section 2 of the Cable Landing License Act, 47 U.S.C.
§ 35; Executive Order No. 10530, as amended; and Section 214 of the
Communications Act of 1934, as amended, 47 U.S.C. § 214, the Commission
reserves the right to impose additional common carrier or
common-carrier-like regulation on the operations of the cable system if
it finds that the public interest so requires;

\(8\) The Licensee shall maintain *de jure* and *de facto* control of
the U.S. portion of the cable system, including the cable landing
stations in the United States, sufficient to comply with the
requirements of this license;

\(9\) This license is revocable by the Commission after due notice and
opportunity for hearing pursuant to Section 2 of \"An Act relating to
the Landing and Operation of Submarine Cables in the United States\"; 47
U.S.C. § 35, or for failure to comply with the terms of the
authorizations;

\(10\) The Licensee shall notify the Commission in writing of the date
on which the cable is placed in service, and this license shall expire
25 years from such date, unless renewed or extended upon proper
application, and, upon expiration of this license, all rights granted
under it shall be terminated; and

\(11\) The terms and conditions upon which this license is given shall
be accepted by the Licensee by filing a letter with the Secretary,
Federal Communications Commission, Washington, D.C. 20554, within 30
days of the release of the cable landing license.

16\. This Order is issued under Section 0.261 of the Commission\'s
rules, 47 C.F.R. § 0.261, and is effective upon adoption. Petitions for
reconsideration under Section 1.106 or applications for review under
Section 1.115 of the Commission\'s rules, 47 C.F.R. §§ 1.106, 1.115, may
be filed within 30 days of the date of public notice of this order (see
47 C.F.R. § 1.4(b)(2)).

FEDERAL COMMUNICATIONS COMMISSION

Rebecca Arbogast

Chief, Telecommunications Division

International Bureau

[^1]: An Act Relating to the Landing and Operation of Submarine Cables
    in the United States, 47 U.S.C. §§ 34-39 (Cable Landing License
    Act).

[^2]: Exec. Ord. No. 10530 *reprinted* *as* *amended* in 3 U.S.C. § 301.

[^3]: ^ ?^ *See* TyCom Atlantic (USA) Inc. Application for a License to
    Land and Operate a Private Fiber-Optic Submarine Cable System
    between the United States Mainland and the United Kingdom, filed
    March 8, 2000, at 2, 10 (Application). Since filing its initial
    application, TyCom notified the Commission that it has changed its
    name to TyCom Networks (US) Inc. *See* Letter from Kent D. Bressie,
    Counsel for TyCom Networks (US) Inc. to Magalie Roman Salas,
    Secretary, Federal Communications Commission (July 14, 2000).

[^4]: ^ ?^ *Id.* at 10.

[^5]: ^ ?^ *Id.* at 3-4.

[^6]: ^ ?^ *See* *Non Streamlined International Applications Accepted
    for Filing*, Public Notice, Report No. TEL-00203NS (rel. March 17,
    2000).

[^7]: ^ ?^ 47 C.F.R. § 1.767(b).

[^8]: ^ ?^ Letter from Rebecca Arbogast, Chief, Telecommunications
    Division, International Bureau, Federal Communications Commission,
    to Steven W. Lett, Deputy U.S. Coordinator, Office of International
    Communications and Information Policy, U.S. Department of State
    (March 17, 2000).

[^9]: Letter from Malcolm R. Lee, United States Coordinator,
    International Communications and Information Policy, U.S. Department
    of State, to Donald Abelson, Chief, International Bureau, FCC
    (August 3, 2000).

[^10]: Application at 1-2, 6-9.

[^11]: *See Tel-Optik, Ltd*., Memorandum Opinion and Order, 100 F.C.C.
    2d 1033, 1040-42, 1046-48 (1985); *see also Cable & Wireless, plc*,
    Cable Landing License, 12 FCC Rcd 8516 (1997) (*Cable & Wireless)*.

[^12]: ^ ?^ *See Cable & Wireless*, 12 FCC Rcd at 8522; *see also Optel
    Communications, Inc*., Conditional Cable Landing License, 8 FCC Rcd
    2267 (1993); National Association of Regulatory Utility
    Commissioners v. FCC, 525 F.2d 630, 642 (D.C. Cir.) (NARUC I), cert.
    denied, 425 U.S. 992 (1976).

[^13]: ^ ?^ *See, e.g.*, *Cable & Wireless*, 12 FCC Rcd at 8522-23.

[^14]: ^ ?^ *Id.*

[^15]: ^ ?^ *Id.*

[^16]: ^ ?^ *Id*.

[^17]: ^ ?^ Application at 7-8.

[^18]: ^ ?^ *See Tel Optik Limited*, 100 F.C.C. 2d 1033 (1985).

[^19]: ^ ?^ *See MFS Globenet, Inc.,* Application for a license to land
    and operate in the United States a private submarine fiber optic
    cable extending between the United States and the United Kingdom,
    Cable Landing License, 11 FCC Rcd 12,732 (Tel. Div. 1996), modified
    by *MFS Globenet, Inc., & Cable & Wireless, plc*, Modification of
    Cable Landing License, 12 FCC Rcd 8637 (Tel. Div. 1996) (change in
    ownership of the Gemini cable system).

[^20]: ^ ?^ *See American Telephone and Telegraph Co. et al*,
    Application for Authorization under Section 214 of the
    Communications Act of 1934, as amended, to Construct and Acquire a
    High Capacity, Digital, Submarine Cable System, Memorandum Opinion
    and Order, Authorization, 98 F.C.C. 2d 440 (1984).

[^21]: ^ ?^ *See American Telephone and Telegraph Company et al*, Joint
    Application for a License to Land and Operate a High Capacity
    Digital Submarine Cable System, Cable Landing License, 3 FCC Rcd
    7304 (CC Bur. 1988).

[^22]: ^ ?^ *See American Telephone and Telegraph Company et al*,
    Application for a License to Land and Operate a High Capacity
    Digital Submarine Cable System, Cable Landing License, 7 FCC Rcd 134
    (1992).

[^23]: ^ ?^ *See American Telephone and Telegraph Company et al*, Joint
    Application for a License to Land and Operate a High Capacity
    Digital Submarine Cable System, Cable Landing License, 8 FCC Rcd
    4808 (CC Bur. 1993).

[^24]: ^ ?^ *See SSI Atlantic Crossing, LLC*, Application for a License
    to Land and Operate in the United States a Digital Submarine Cable
    System, File No. SCL-97-002, Cable Landing License, 13 FCC Rcd 5961
    (Tel. Div. 1997); Order on Reconsideration, File No. SCL-97-002, 12
    FCC Rcd 17435 (Tel. Div. 1997); Modification of Cable Landing
    License, File No. SCL-97-002(M), 13 FCC Rcd 7171 (Tel. Div. 1998);
    and Order and Authorization, File No. SCL-ASG-19981207-00028, 14 FCC
    Rcd 10492 (Tel. Div. 1999).

[^25]: ^ ?^ *See Flag Atlantic Limited*, Application for a License to
    Land and Operate in the United States a Private Fiber Optic
    Submarine Cable System, Cable Landing License, DA 99-2041, File No.
    SCL-LIC-19990301-00005 (Tel. Div., rel. Oct. 1, 1999).

[^26]: *See Worldwide Telecomm (USA) Inc*., Application for a License to
    Land and Operate in the United States a Private Fiber Optic
    Submarine Cable System extending between the United States, Canada,
    Ireland, and the United Kingdom, Cable Landing License, 15 FCC Rcd
    765 (Tel. Div. 2000).

[^27]: *See Level 3 International, Inc.*, Application For a License to
    Land and Operate in the United States a Private Fiber Optic
    Submarine Cable System Extending Between the United States and the
    United Kingdom, Cable Landing License, 15 FCC Rcd 842 (Tel. Div.
    2000).

[^28]: ^ ?^ *See American Telephone and Telegraph Co. et al*,
    Application for a License to Land and Operate a Submarine Cable
    System Extending between the United States and Denmark, Germany, the
    Netherlands, France and the United Kingdom, Cable Landing License,
    DA 99-2042, File No. SCL-LIC-19990303-00004 (Tel. Div., rel. Oct. 1,
    1999).

[^29]: Application at 10-11.

[^30]: ^ ?^ *See* 47 U.S.C. § 35 (providing that a license may be
    granted \"upon such terms as shall be necessary to assure just and
    reasonable rates and service in the operation and use of cables so
    licensed\").

[^31]: *See Rules and Policies on Foreign Participation in the U.S.
    Telecommunications Market,* IB 97-142, *Market Entry and Regulation
    of Foreign Affiliated Entities*, IB 95-22, Report and Order and
    Order on Reconsideration, 12 FCC Rcd 23891, 23934 ¶ 95 (1997),
    *recon. pending*; *Cable & Wireless*, 12 FCC Rcd at 8530 ¶ 39; *AT&T
    Corp. et al.*, Cable Landing License, 13 FCC Rcd 16232, 16237 ¶15
    (Int'l. Bur. 1998).

[^32]: *See* Application at 6.

[^33]: ^ ?^ *See* 47 U.S.C. § 153(44) (defining \"telecommunications
    carrier\"); *Cable & Wireless*, 12 FCC Rcd at 8523.

[^34]: ^ ?^ *See* Application at 9-12.

[^35]: *Id.* at Attachment B*.*

[^36]: *Id.* at Attachment C.

[^37]: ^ ?^ *See* 47 C.F.R. § 1.1306 Note 1 (as amended 1999*); 1998
    Biennial Regulatory Review \-- Review of International Common
    Carrier Regulations*, IB Docket No. 98-118, Report and Order, 14 FCC
    Rcd 4909, ¶¶ 67-69 (1999).