[Federal Register Volume 75, Number 248 (Tuesday, December 28, 2010)]
[Rules and Regulations]
[Pages 81488-81491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32490]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1 and 63

 [IB Docket No. 04-47; FCC 10-187]


Modification of the Rules and Procedures Governing the Provision 
of International Telecommunications Service

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Federal Communications Commission amends its rules to 
grant in part the Petition for Reconsideration filed by the North 
American Submarine Cable Association (NASCA) and otherwise affirm the 
Commission's Report and Order, Amendment of parts 1 and 63 of the 
Commission's Rules, IB Docket No. 04-47, Report and Order, FCC 07-118, 
22 FCC Rcd 11398, 72 FR 54363 (2007) (Report and Order), establishing 
that the Coastal Zone Management Act of 1972 (CZMA) applies to cable 
landing licenses granted by the Commission. NASCA's Petition for 
Reconsideration argues that the Commission should rescind the rules 
adopted in that Report and Order. Although we decline to rescind the 
rules, we amend them to clarify the applicable licensing requirements 
and to ensure that the Commission's process for evaluating cable 
landing licenses complies with the CZMA review procedures established 
by the National Oceanic and Atmospheric Administration (NOAA).

DATES: Effective January 27, 2011, except for the amendment to Sec.  
1.767(k)(4), which contains information collection requirements that 
have not been approved by the Office of Management and Budget (OMB). 
The Federal Communications Commission will publish a document in the 
Federal Register announcing the effective date of these rules after it 
receives OMB approval for the information collection requirements.

FOR FURTHER INFORMATION CONTACT: Kimberly Cook or David Krech, Policy 
Division, International Bureau, FCC, (202) 418-1460 or via the Internet 
at <a href="/cdn-cgi/l/email-protection#4e0527232c2b3c2237600d2121250e282d2d60292138"><span class="__cf_email__" data-cfemail="8bc0e2e6e9eef9e7f2a5c8e4e4e0cbede8e8a5ece4fd">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#074366716e63294c7562646f4761646429606871"><span class="__cf_email__" data-cfemail="c084a1b6a9a4ee8bb2a5a3a880a6a3a3eea7afb6">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration in IB Docket No. 04-47, FCC 10-187, adopted October 
29, 2010, and released November 2, 2010. The full text of the Report 
and Order is available for inspection and copying during normal 
business hours in the FCC Reference Center, 445 12th Street, SW., 
Washington, DC 20554. The document also is available for download over 
the Internet at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-10-187A1.pdf. The complete text also may be purchased from the 
Commission's copy contractor, Best Copy and Printing, Inc. (BCPI), 
located in Room CY-B402, 445 12th Street, SW., Washington, DC 20554. 
Customers may contact BCPI at its Web site: http://www.bcpiweb.com or 
call 1-800-378-3160.

Summary of Order on Reconsideration

    1. In the Order on Reconsideration, the Commission amends parts 1 
and 63 of its rules to grant in part the Petition for Reconsideration 
filed by the North American Submarine Cable Association (NASCA) and 
otherwise affirms the Commission's Report and Order, Amendment of parts 
1 and 63 of the Commission's rules, IB Docket No. 04-47, Report and 
Order, FCC 07-118, 22 FCC Rcd 11398, 72 FR 54363 (2007) (Report and 
Order), establishing that the Coastal Zone Management Act of 1972 
(CZMA) applies to cable landing licenses granted by the Commission. 
NASCA's Petition for Reconsideration argues that the Commission should 
rescind the rules adopted in that Report and Order. Although the 
Commission declines to rescind the rules, the Commission amends them to 
clarify the applicable licensing requirements and to ensure that the 
Commission's process for evaluating cable landing licenses complies 
with the CZMA review procedures established by the National Oceanic and 
Atmospheric Administration (NOAA).
    2. Applicability of CZMA to FCC Cable Landing Licenses: The 
Commission reaffirms its finding the Report and Order that the CZMA 
applies to cable landing license applications. In a letter to the 
Commission, NOAA, the federal agency charged with implementation of 
CZMA, finds that an FCC license is a federal license or permit that 
could be reviewed by coastal states, pursuant to the CZMA. In deference 
to NOAA's statutory and regulatory authority and in furtherance of the 
Commission's cable landing licensing authority under the Cable Landing 
License Act, as delegated to the Commission by Executive Order 10530, 
the FCC must ensure that its cable landing license rules and 
application procedures comport with the consistency review procedures 
specified in the CZMA.
    3. The CZMA states that no federal agency may grant a license to 
conduct an activity affecting a coastal area until a state concurs or 
is presumed to concur with the applicant's certification that a 
proposed activity is consistent with the state's coastal management 
plan. See 16 U.S.C. 1456(c)(3)(A). If the state includes FCC cable 
landing licensing in its coastal management plan, FCC licensing is 
considered a ``listed activity.'' See 15 CFR 930.53. As such, the state 
has six months to review and either concur with or object to the 
certification that is required if CZMA state consistency review is 
triggered by the filing of a cable landing license with the Commission. 
The state's concurrence is conclusively presumed if it does not act 
within six months after receiving the applicant's certification. See 16 
U.S.C. 1456(c)(3)(A). At this time, no state has included FCC licensing 
in its coastal management plan. If the state does not include FCC 
licensing in its coastal management plan, such licensing is an 
``unlisted activity.'' For unlisted activities, NOAA rules require that 
the state notify the relevant federal agencies, applicants, and the 
Director of the Office of Ocean and Coastal Resource Management (OCRM) 
(within NOAA) of the state's request to review the activity within 
thirty days of notice of the license or permit application, or 
otherwise be deemed to have waived the right to review the unlisted 
activity. See 15 CFR 930.54.
    4. Certification Requirement: The Order on Reconsideration amends 
the certification requirement of Sec.  1.767 to clarify that the 
applicant need only certify that the proposed submarine cable will not 
be located in or impact any state that requires review of FCC cable 
landing applications as a listed activity in its coastal management 
plan.
    5. Constructive Notice to States: The Order on Reconsideration 
clarifies that the thirty-day time period for a state to request NOAA 
approval for consistency review of the application as an unlisted 
activity will commence with the issuance of the Public Notice that the 
submarine cable landing license application has been accepted for 
filing. NOAA rules allow for constructive notice to a state of 
submission of an application for licenses for unlisted

[[Page 81489]]

activities. ``Notice to the State agency may be constructive if notice 
is published in an official federal public notification document or 
through an official State clearinghouse. * * *'' 15 CFR 930.54(a)(2). 
Issuance of the accepted-for-filing Public Notice provides constructive 
notice to a state of the submission of submarine cable landing license 
application and commences the thirty-day period specified in Sec.  
930.54(a)(1). This publication of the Order on Reconsideration in the 
Federal Register provides constructive notice to the states of this 
finding and of the utility of monitoring Public Notices for federal 
license activities that may be subject to consistency review. See 15 
CFR 930.54(a)(1), providing that ``[w]ith the assistance of Federal 
agencies, State agencies should monitor unlisted federal license or 
permit activities.''
    6. The accepted-for-filing Public Notice provides a description of 
the proposed submarine cable, including the location of the landing 
points. The Public Notice also provides the file number for the 
application so that interested parties can access the application 
itself through the FCC Web site. A cable landing license application is 
publicly available before an accepted-for-filing Public Notice is 
released. The application must be filed electronically via the 
International Bureau Filing System (IBFS), 1 CFR 1.767(n); see also 1 
CFR 1.10000 et seq., and is available for viewing though IBFS once it 
is filed. IBFS includes a Submarine Cable Landing Pending Application 
List as a pre-defined report, and also allows for searches for pending 
applications, as well as current cable landing licenses. The Public 
Notice thus contains sufficient information about the proposed activity 
requiring a cable landing license to permit potentially affected states 
to evaluate whether there will be an impact that, subject to NOAA's 
agreement, warrants consistency review.
    7. The accepted-for-filing Public Notices are available on the FCC 
Web site and are included in the FCC's Daily Digest. The Daily Digest 
provides a brief synopsis of Commission documents, including Public 
Notices, released each business day. The Daily Digest is available on 
the FCC Web site http://www.fcc.gov/Daily_Releases/Daily_Digest, and 
one can also subscribe to the Daily Digest and have a copy sent via e-
mail http://www.fcc.gov/Daily_Releases/Daily_Digest/subscribe.html.
    8. Streamlining Process: Streamlined processing will be available 
for all applications where the states have waived, or are deemed to 
have waived, any section 1456(c)(3)(A) right to review the application 
as an unlisted activity. Also, all applications for transfer of control 
or assignment of a cable landing station license or modification that 
do not affect the construction of a submarine cable system or cable 
landing station are not subject to a consistency review and are 
eligible for the streamlined grant procedures.
    9. With the above-discussed clarification of the rules, the 
Commission anticipates that the CZMA requirements will rarely if ever 
disrupt the streamlined processing of cable landing license 
applications. Unless a state were to change its coastal management 
program to include FCC cable landing licenses as a listed activity, or 
were to timely request NOAA approval for consistency review of a 
particular cable landing application as an unlisted federal license 
activity, there would be no change to the Commission's streamlined 
process. The Commission has minimized licensee burdens associated with 
compliance with the CZMA by removing any ambiguity about the 
consistency certification that section 1456(c)(3)(A) requires to be 
included in the application (with a copy to the state) if this is a 
listed activity, and clarifying the requirements with respect to states 
that do not list this type of application in their federally approved 
state programs. As long as no state amends its coastal management 
program to designate this type of application as a listed activity, the 
Commission must remove from streamlined processing only those 
applications that a state, within thirty days of constructive notice of 
the application, has identified as involving an unlisted activity that 
it believes requires consistency review. The applicant would be 
required to amend its application to submit a consistency certification 
(with a copy to the state) only if OCRM ultimately approved state 
consistency review of the unlisted activity. In that event, a delay of 
up to six months from the original Federal agency notice to the state 
agency or three months after the state receives the applicant's 
required consistency certification, whichever period terminates last, 
is unavoidable under applicable statutory and regulatory provisions.
    10. Workability of Rules: The Commission disagrees with NASCA that 
the CZMA rules present applicants with a ``Catch-22'' in Florida. NASCA 
argues that applicants face a ``Catch 22'' in Florida because Florida 
requires applicants to first obtain and submit a copy of their cable 
landing license, and thus, according to NASCA, under the CZMA rules, 
there is no way to obtain the federal and state approvals needed to 
land an undersea cable in Florida. The Order on Reconsideration notes 
that there is no current requirement that a cable landing license 
application must include a certification regarding the consistency of 
proposed activities with Florida's coastal management program, because 
Florida has not included FCC cable landing licenses as a listed 
activity in its coastal management plan. Consequently, with the 
clarification to our rules discussed above, there is no ``Catch-22'' 
situation in Florida, because the certification requirement only 
applies to listed activities and Applicants only need to comply with 
the procedures for unlisted activities discussed above. The Order on 
Reconsideration further notes that any problem with Florida's specific 
situation that may arise in the future could be addressed in 
consultation among the affected parties, including the state licensing 
agency, the FCC, and the Director of OCRM, as would be required if 
Florida were to amend its coastal management program to designate this 
type of application as a listed activity or to receive approval to 
review a particular application as an unlisted activity. Thus, if 
Florida amends its coastal management program to designate a cable 
landing license application as a listed activity, the FCC will take 
appropriate steps to address NASCA's concerns.
    11. The new rules do not change what applicants for a cable landing 
license are required to provide the FCC other than the certification 
requirements necessary to alert the Commission of any outstanding state 
consistency review and to ensure Commission compliance with the CZMA. 
The new requirements relate to assuring compliance with the CZMA, and, 
as discussed above, the Commission defers to NOAA's expertise in the 
applicability of the consistency review procedures specified in the 
CZMA.
    12. WTO: The Order on Reconsideration finds that the CZMA 
procedures, as clarified, interject no ambiguity concerning the time 
normally required to reach a decision on a license application. Rather, 
as required by WTO commitments, all license processing requirements, 
including any delays attributable to CZMA, are transparent and spelled 
out in the applicable statutes and rules.
    13. Request to Defer Effective Date: NASCA's request to defer the 
effective date of the rules is moot since the Commission did not put 
the new rules

[[Page 81490]]

into effect while NASCA's Petition for Reconsideration was pending.

Paperwork Reduction Act of 1995 Analysis

    14. The Report and Order contains rules with new information 
collections subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13 (44 U.S.C. 3501-3520). Implementation of these rules 
will be subject to approval by OMB as prescribed by the PRA. The 
Commission has published a separate notice in the Federal Register 
inviting OMB, the general public, and other Federal agencies to comment 
on the information collection requirements contained in this document. 
In addition, the Commission notes pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-298, see 44 U.S.C. 
3506(c)(4), that the Commission previously sought specific comment on 
how the Commission may ``further reduce the information collection 
burden for small business concerns with fewer than 25 employees.''

Final Regulatory Flexibility Analysis

    15. The Regulatory Flexibility Act of 1980, as amended (RFA) 
requires that a Regulatory Flexibility Act analysis be prepared for 
notice-and-comment rule making proceedings, unless the agency certifies 
that ``the rule will not, if promulgated, have a significant economic 
impact on a substantial number of small entities.'' The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small business concern'' under the 
Small Business Act. A ``small business concern'' is one which: (1) Is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
Small Business Administration (SBA).
    16. This proceeding was initiated as part of the Commission's 2002 
biennial regulatory review process. Through this review, the Commission 
has sought to: Improve the processing of authorization applications and 
regulation of international services; and lessen the regulatory burdens 
placed on carriers.
    17. In the Notice of Proposed Rulemaking, 69 FR 13276, the 
Commission certified that the rules proposed in this proceeding would 
not have a significant economic impact on a substantial number of small 
entities. This Order on Reconsideration will amend the submarine cable 
landing rules to require applicants to include information regarding an 
applicant's compliance with the Coastal Zone Management Act of l972. 
Although the majority of submarine cable landing license applicants are 
not considered small entities, the rule changes affecting these 
applicants are nominal and will ensure that our rules are consistent 
with the Coastal Zone Management Act of 1972. Therefore, we find that 
the rules adopted in this Order on Reconsideration will not have a 
significant economic impact on a substantial number of small entities.

Ordering Clauses

    18. For the reasons discussed above, it is ordered, pursuant to 
sections 1, 4(i), 4(j), and 5, of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 154(i), 154(j), 155, sections 34-39 of the 
Cable Landing License Act, 47 U.S.C. 34-39, and Sections 1.3 and 1.115 
of the Commission's rules, 47 CFR 1.3, 1.115, that the Petition for 
Reconsideration of the Commission's Report and Order filed by NASCA is 
granted to the extent described in this Order and is otherwise denied.
    19. It is further ordered that, pursuant to sections 1, 4(i), 4(j), 
and 5 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 
154(i), 154(j), 155, and sections 34-39 of the Cable Landing License 
Act, 47 U.S.C. 34-39, Part 1 of the Commission's rules is amended as 
set forth in the Appendix.
    20. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this report and order, including the Final Regulatory 
Flexibility Act Certification, to the Chief Counsel for Advocacy of the 
Small Business Administration in accordance with section 603(a) of the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq.
    21. It is further ordered that the Regulatory Flexibility 
Certification, as required by section 604 of the Regulatory Flexibility 
Act and as set forth above is adopted.

List of Subjects in 47 CFR Parts 1 and 63

    Cable, Telecommunications.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 1 as follows:

PART 1--PRACTICE AND PROCEDURE

0
1. The authority citation for part 1 continues to read as follows:

    Authority:  15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(j), 160, 
201, 225, and 303(r).


0
2. Section 1.767 is amended by revising the note to paragraph (a)(10) 
and paragraph (k)(4) to read as follows.


Sec.  1.767  Cable landing licenses.

* * * * *

    Note to paragraph (a)(10) --Applicants for cable landing 
licenses may be subject to the consistency certification 
requirements of the Coastal Zone Management Act (CZMA), 16 U.S.C. 
1456, if they propose to conduct activities, in or outside of a 
coastal zone of a state with a federally-approved management plan, 
affecting any land or water use or natural resource of that state's 
coastal zone. Before filing their applications for a license to 
construct and operate a submarine cable system or to modify the 
construction of a previously approved submarine cable system, 
applicants must determine whether they are required to certify that 
their proposed activities will comply with the enforceable policies 
of a coastal state's approved management program. In order to make 
this determination, applicants should consult National Oceanic 
Atmospheric Administration (NOAA) regulations, 15 CFR part 930, 
Subpart D, and review the approved management programs of coastal 
states in the vicinity of the proposed landing station to verify 
that this type of application is not a listed federal license 
activity requiring review. After the application is filed, 
applicants should follow the procedures specified in 15 CFR 930.54 
to determine whether any potentially affected state has sought or 
received NOAA approval to review the application as an unlisted 
activity. If it is determined that any certification is required, 
applicants shall consult the affected coastal state(s) (or 
designated state agency(ies)) in determining the contents of any 
required consistency certification(s). Applicants may also consult 
the Office of Ocean and Coastal Management (OCRM) within NOAA for 
guidance. The cable landing license application filed with the 
Commission shall include any consistency certification required by 
section 1456(c)(3)(A) for any affected coastal state(s) that lists 
this type of application in its NOAA-approved coastal management 
program and shall be updated pursuant to Sec.  1.65 of the 
Commission's rules, 47 CFR 1.65, to include any subsequently 
required consistency certification with respect to any state that 
has received NOAA approval to review the application as an unlisted 
federal license activity. Upon documentation from the applicant--or 
notification from each coastal state entitled to review the license 
application for consistency with a federally approved coastal 
management program--that the state has either concurred, or by its 
inaction, is conclusively presumed to have concurred with the 
applicant's consistency

[[Page 81491]]

certification, the Commission may take action on the application.

* * * * *
    (k) * * *
    (4) Certifying that for applications for a license to construct and 
operate a submarine cable system or to modify the construction of a 
previously approved submarine cable system the applicant is not 
required to submit a consistency certification to any state pursuant to 
section 1456(c)(3)(A) of the Coastal Zone Management Act (CZMA), 16 
U.S.C. 1456.

    Note to paragraph (k)(4) --Streamlining of cable landing license 
applications will be limited to those applications where all 
potentially affected states, having constructive notice that the 
application was filed with the Commission, have waived, or are 
deemed to have waived, any section 1456(c)(3)(A) right to review the 
application within the thirty-day period prescribed by 15 CFR 
930.54.


[FR Doc. 2010-32490 Filed 12-27-10; 8:45 am]
BILLING CODE 6712-01-P


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