#########  Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of

)

Worldwide Telecom (USA) Inc. )

)

Application for a License to Land and Operate in ) File No.
SCL-LIC-19990804-00012

the United States a Private Fiber Optic Submarine )

Cable System extending between the )

United States, Canada, Ireland, and )

the United Kingdom )

)

**CABLE LANDING LICENSE**

**Adopted: January 13, 2000 Released: January 14, 2000**

By the Chief, Telecommunications Division:

**I. Introduction**

I.  

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1.  In this Order, we grant the Application of Worldwide Telecom (USA)
    Inc. (Worldwide Telecom), under the Cable Landing License Act[^1]
    and Executive Order No. 10530,[^2] for authority to land and operate
    a fiber optic submarine telecommunications cable system to be called
    the Hibernia cable system (Hibernia) extending between the United
    States, Canada, Ireland, and the United Kingdom. The system will be
    operated on a non-common carrier basis. We find that Worldwide
    Telecom 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.

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II. **Application**

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2.  According to the Application, Worldwide Telecom, a Nevada
    corporation, is a wholly-owned subsidiary of Worldwide Telecom
    (Denmark) ApS, a company organized under the laws of Denmark, which,
    through a series of intermediate holding companies, is an indirect
    wholly-owned subsidiary of Worldwide Fiber Holdings Ltd. (Worldwide
    Fiber) a Canadian company organized under the laws of Alberta.[^3]
    One hundred percent of Worldwide Fiber's common shares are held by
    Ledcor Inc., a privately-held Canadian company incorporated under
    the laws of Alberta. One hundred percent of the preferred shares of
    Worldwide Fiber are held by Ledcor Industries Limited, an Alberta
    company and a wholly-owned subsidiary of Ledcor Inc. The ten percent
    or greater shareholders of Ledcor Inc. are David W. Lede and
    Clifford W. Lede, both Canadian citizens.

3.  As shown in Exhibit A attached to this Order, the proposed Hibernia
    system will connect Boston, Massachusetts; Halifax, Nova Scotia,
    Canada; Dublin, Ireland; and Liverpool, United Kingdom. According to
    the Application, the Hibernia system will be comprised of four fiber
    pairs with a capacity of 160 Gbps, upgradable in 160 Gbps increments
    to 1.2 Tbps.[^4] The system will consist of approximately 12,222
    kilometers of submerged cable in a dedicated pre-provisioned and
    fully protected self-restoring SDH/SONET ring. Hibernia\'s system
    design will permit 32 channels to be sent on each fiber. Each
    optical channel will carry 10 Gbps of information, and each cable
    will contain four fiber pairs, each pair equipped to operate up to 8
    wavelengths of wave division multiplexing (WDM). The total capacity
    of a single cable will be 1,280 Gbps or 1/28 Tbps of protected
    traffic. With two cables required for diversity, a total capacity of
    2.56 Tbps will be installed; however, protected capacity will be
    one-half installed capacity, or 1.28 Tbps.

**III. Comments**

4.  We placed the Application on public notice on August 25, 1999.[^5]
    Tyco Submarine Systems Ltd. (Tyco) filed comments in support of the
    Application. No other comments were received. Pursuant to Section
    1.767(b) of the Commission\'s rules,[^6] the Cable Landing License
    Act, and Executive Order No. 10530, we informed the Department of
    State of the Application.[^7] 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 the issuance of the cable landing license.[^8]

**IV. Discussion**

**A. Private Submarine Cable Policy**

5.  Worldwide Telecom proposes to operate Hibernia as a non-common
    carrier submarine cable system, offering bulk capacity to a specific
    class of eligible users, including common carriers, on an original
    ownership, indefeasible right of use (IRU), or lease of capacity
    basis.[^9] Capacity will not be offered indifferently to the public.
    Worldwide Telecom requests a license under the Commission\'s private
    submarine cable policy, which is intended to promote competition in
    the provision of international transmission facilities.[^10]
    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 that the applicant would make
    capacity available to the public indifferently and
    indiscriminately.[^11]

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.[^12] 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.[^13]
    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.[^14] 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.[^15]

7.  No one has advocated that the public interest requires Hibernia to
    be operated on a common carrier basis. Worldwide Telecom is
    affiliated with foreign carriers in Canada, Ireland, and the United
    Kingdom, all WTO member countries. Worldwide Telecom has stated that
    its foreign carrier affiliates do not possess market power in their
    respective markets or the ability to discriminate against
    unaffiliated U.S. carriers on the foreign end of their routes
    through the control of bottleneck facilities or services in the
    markets Hibernia proposes to serve.

8.  In addition, we note that Worldwide Telecom asserts that there are
    sufficient existing and planned facilties on the routes to prevent
    it from exercising market power in offering services to the
    public.[^16] Worldwide Telecom asserts that there are a number of
    existing and planned common carrier and private cable systems in
    this region,[^17] including the following cables extending between
    the United States and Western Europe: (1) TAT-8,[^18] (2)
    TAT-9;[^19] (3) TAT 11;[^20] (4) TAT-12/13[^21]; (5) Atlantic
    Crossing-1 (AC-1);[^22] (6) FLAG Atlantic-1;[^23] and (7) Project
    Oxygen.[^24] TAT-8, TAT-9, TAT-11, TAT-12/13, and AC-1 are all
    operational cables that extend between the United States and various
    international points including the United Kingdom. The FLAG
    Atlantic-1 and Project Oxygen cable systems have been authorized by
    the Commission, but are not yet operational. The FLAG Atlantic-1
    cable system will also extend between the United States, the United
    Kingdom and other international points, while the Project Oxygen
    cable system will extend between the United States and various
    international points including Ireland and the United Kingdom.
    Ireland is also served by the Private Transatlantic Cable System
    (PTAT-1, a Commission-authorized private cable in service since
    1989).

9.  Given the unopposed evidence of the availability of alternative
    cables and Worldwide Telecom's representation that none of its
    affiliates has market power in any of the cable landing countries,
    we find that it would not serve the public interest to impose common
    carrier regulation on the operations of Hibernia 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.[^25] 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.[^26]

10. 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 and indiscriminately. Worldwide
    Telecom states that capacity will not be sold indifferently to the
    user public. Worldwide Telecom will make \"individualized decisions
    in particular cases, whether and on what terms to deal.\"[^27]

11. We conclude that Worldwide Telecom will not offer capacity in
    Hibernia to the public on a common carrier basis and that the public
    interest does not require that it does so. Accordingly, we conclude
    that it is appropriate to license Hibernia on a non-common carrier
    basis. We also find that the Applicant will not provide a
    telecommunications service for a fee to such 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.[^28]

**B. Ownership and Landing Points**

12. Worldwide Telecom has provided the ownership information required by
    Section 1.767(a)(6) and Section 63.18 of the Commission\'s rules.
    Worldwide Telecom will own and control the cable landing station
    near Boston, Massachusetts, together with the portion of the
    Hibernia cable located in U.S. territorial waters. The foreign cable
    stations and the portions of the submarine cable will be owned and
    controlled as follows:

Canadian landing station at Halifax, Nova Scotia, and the portion of the
cable located in Canadian territorial waters, owned and controlled by
Worldwide Telecom (Canada) Inc.;

Irish landing station at Dublin, Ireland, and the portion of the cable
located in Irish territorial waters, owned and controlled by WTI Telecom
(Ireland) Limited;

United Kingdom landing station at Liverpool, United Kingdom, and the
portion of the cable located in U.K. territorial waters, owned and
controlled by WTO Telecom (U.K.) Limited.

The portion of the cable located within international waters will be
owned and controlled by Worldwide Telecom (Barbados) Inc.

13. The Application states that Hibernia will land at Boston,
    Massachusetts; Halifax, Nova Scotia, Canada; Dublin, Ireland; and
    Liverpool, United Kingdom. The Boston, Massachusetts station will be
    located at 83 Commercial Street, 42º 27\' 34\" N, 70º 57\' 38\" W.
    The Halifax, Nova Scotia station will be located at 44º 33.7593\' N,
    63º 33.69576\' W. The Dublin, Ireland, station will be located at
    53º 23\' 59.1\"N, 6º 13\' 2.5\" W. The Liverpool, U.K. station will
    be located at Southport Business Park, Wight Moss Way, Off Town
    Lane, 53º 37\' 38\" N, 2º 59\' 23\" W.[^29]

**C. Environmental Impact**

14. Based on the information provided by the Applicant and pursuant to
    the Commission\'s procedures implementing the National Environmental
    Policy Act of 1969,[^30] we find that acting on this Application
    would not significantly affect the environment according to Section
    1.1307(a) or (b) of the Commission\'s rules. Therefore, pursuant to
    Section 1.1306 of the Commission\'s rules, we conclude that grant of
    the requested license would not significantly affect the
    environment. Consequently, Worldwide Telecom is not required to
    submit an environmental assessment, and this Application is
    categorically excluded from environmental processing.

**V. Conclusion**

15. We grant Worldwide Telecom\'s Application for authority to land and
    operate a non-common carrier fiber optic submarine cable extending
    between the United States, Canada, Ireland, and the United Kingdom,
    subject to the conditions listed below.

#########  VI. Ordering Clauses

16. Consistent with the foregoing and pursuant to the Cable Landing
    License Act and Executive Order 10530, we hereby GRANT AND ISSUE
    Worldwide Telecom (USA) Inc. a license to land and operate a
    non-common carrier fiber optic cable system (comprised of four fiber
    pairs with a capacity of 160 Gbps, upgradable in 160 Gbps increments
    to 1.2 Tbps, the system to consist of approximately 12,222
    kilometers of submerged cable in a dedicated pre-provisioned and
    fully protected self-restoring SDH/SONET ring) extending between the
    United States, Canada, Ireland, and the United Kingdom. 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 for the purpose of handling or
interchanging traffic to or from the United States, its territories, or
its possessions to land, connect, or operate cables or land lines, to
construct or operate radio stations, or to interchange traffic, 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;

\(6\) 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;

\(7\) 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;

\(8\) The Licensee shall maintain *de jure* and *de facto* control of
the U.S. segment 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 the Cable Landing
License Act, 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.

17. 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

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[^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]:     ^?^ Worldwide Telecom (Denmark) ApS is a wholly-owned
    subsidiary of Worldwide Telecom (Bermuda) Ltd., a Bermuda company,
    which is, in turn, a wholly-owned subsidiary of Worldwide Telecom
    Limited, also a Bermuda company. Worldwide Telecom Limited is
    wholly-owned by Worldwide Telecom (Bermuda) Holdings Ltd., a Bermuda
    company. Worldwide Telecom (Bermuda) Holdings Ltd. is wholly-owned
    by Worldwide Fiber Networks Ltd., a Canadian company organized under
    the laws of the Province of Alberta. Worldwide Fiber Networks Ltd.
    is wholly-owned by Worldwide Fiber Inc., also a Canadian company
    organized under the laws of Alberta. Worldwide Fiber Inc. is wholly
    owned by Worldwide Fiber Holdings Ltd., a company organized under
    the laws of Alberta.

[^4]:     ^?^ *See* Worldwide Telecom (USA) Inc. Application to Land and
    Operate in the United States a Private Fiber Optic Submarine Cable
    System, filed Aug. 4, 1999, at 4 (Application).

[^5]:     ^?^ *See Non Streamlined International Applications Accepted
    for Filing,* Public Notice, Report No. TEL-00124NS (rel. Aug. 25,
    1999).

[^6]:     ^?^ 47 C.F.R. § 1.767(b).

[^7]:     ^?^ Letter from Rebecca Arbogast, Chief, Telecommunications
    Division, International Bureau, Federal Communications Commission,
    to Steven Lett, Deputy U.S. Coordinator, Office of International
    Communications and Information Policy, U.S. Department of State
    (Aug. 20, 1999).

[^8]:     ^?^ Letter from Richard C. Beaird, Acting United States
    Coordinator, International Communications and Information Policy,
    U.S. Department of State, to Donald Abelson, Chief, International
    Bureau, Federal Communications Commission (Jan. 10, 2000).

[^9]:     ^?^ *See* Application at 6.

[^10]:     ^?^ *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*).

[^11]:     ^?^ *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).

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

[^13]:     ^?^ *Id.*

[^14]:     ^?^ *Id.*

[^15]:     ^?^ *Id.*

[^16]:     ^?^ *See* Application at 6.

[^17]:     ^?^ *See id.* at 6.

[^18]:     ^?^ *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,* 98 FCC 2d 440
    (1984).

[^19]:     ^?^ *See American Telephone and Telegraph Company et al,
    Joint Application for a License to Land and Operate a High Capacity
    Digital Submarine Cable System,* 3 FCC Rcd 7304 (1988).

[^20]:     ^?^ *See American Telephone and Telegraph Company et al,
    Application for a License to Land and Operate a High Capacity
    Digital Submarine Cable System,*7 FCC Rcd 134 (1992).

[^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,* 8 FCC Rcd 4808 (1993).

[^22]:     ^?^ *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, 13 FCC Rcd 5961 (1997); Order on
    Reconsideration, File No. SCL-97-002, 12 FCC Rcd 17435 (1997);
    Modification of Cable Landing License, File No. SCL-97-002(M), 13
    FCC Rcd 7171 (1998) and Order and Authorization, File No.
    SCL-ASG-19981207-00028, DA 99-1274 (rel. June 30, 1999).

[^23]:     ^?^ *See* *Flag Atlantic Limited, Application for a License
    to Land and Operate in the United States a Private Fiber Optic
    Submarine Cable System*, DA 99-2041, File No. SCL-LIC-19990301-00005
    (rel. Oct. 1, 1999).

[^24]:     ^?^ *See* *Project Oxygen (USA), LLC, 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
    Various Overseas Points*, Cable Landing License, 14 FCC Rcd 3924,
    Appendix (1999).

[^25]:     ^?^ *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\").

[^26]:     ^?^ *See Rules and Policies on Foreign Participation in the
    U.S. Telecommunications Market, Market Entry,* 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).

[^27]:     ^?^ *NARUC I* at 641.

[^28]:     ^?^ *See* 47 U.S.C. § 153(44) (defining \"telecommunications
    carrier\"); *Cable & Wireless*, 12 FCC Rcd at 8523.

[^29]:     ^?^ *See* Application at 5 and additional landing points
    notification contained in File No. SCL-LPN-19990902-00017.

[^30]:     ^?^ 47 C.F.R. §§ 1.1301--.1319.