[Federal Register Volume 79, Number 106 (Tuesday, June 3, 2014)]
[Rules and Regulations]
[Pages 31873-31877]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-12826]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1 and 63

[IB Docket No. 12-299; FCC 14-48]


Reform of Rules and Policies on Foreign Carrier Entry Into the 
U.S. Telecommunications Market

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) eliminates the effective competitive opportunities test 
(ECO Test) from its review of international section 214 authority and 
cable landing license applications, as well as foreign carrier 
affiliation notifications, filed by foreign carriers or their 
affiliates that have market power in countries that are not members of 
the World Trade Organization (WTO). The Commission found that 
elimination of outdated or unnecessary rules will reduce regulatory 
costs and enhance its ability to expeditiously review foreign entry 
that may be advantageous to U.S. consumers, while continuing to protect 
important interests related to national security, law enforcement, 
foreign policy, and trade policy.

DATES: Effective July 3, 2014, except for amendments to Sec. Sec.  
1.767(a)(8), 1.768(g)(2), 63.11(g)(2), and 63.18(k), which contain 
information collection requirements that require approval by the Office 
of Management and Budget (OMB). The Commission will publish a document 
in the Federal Register announcing the effective date for those rule 
changes.

FOR FURTHER INFORMATION CONTACT: Jodi Cooper or James Ball, Policy 
Division, International Bureau, FCC, (202) 418-1460 or via the Internet 
at [email protected] and [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, IB Docket No. 12-299, FCC 14-48, adopted April 22, 2014, and 
released April 22, 2014. 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://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db0422/FCC-14-48A1.pdf.
    The complete text also may be purchased from the Commission's 
duplicating 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.

Synopsis

    1. In the Report and Order, the Commission eliminates the formal 
ECO Test that applies to Commission review of applications filed by 
foreign carriers or affiliates of foreign carriers for entry into the 
U.S. market for international

[[Page 31874]]

telecommunications services and facilities pursuant to section 214 of 
the Communications Act of 1934, as amended, 47 U.S.C. 214, and section 
2 of the Cable Landing License Act, 47 U.S.C. sections 34-39. The 
Commission will no longer apply the ECO Test to (1) section 214 
applications filed by foreign carriers or their affiliates that have 
market power in non-WTO countries they seek to serve; (2) notifications 
filed by an authorized U.S. carrier affiliated with or seeking to 
become affiliated with a foreign carrier that has market power in a 
non-WTO country in which the U.S. carrier is authorized to serve; (3) 
submarine cable landing license applications filed by foreign carriers 
or their affiliates that have market power in non-WTO countries where 
the cable lands; and (4) notifications filed by a U.S. cable landing 
licensee affiliated with or seeking to become affiliated with a foreign 
carrier that has market power in a non-WTO country where the cable 
lands. Instead, the Commission will require that an applicant from a 
non-WTO country demonstrate whether or not it has market power in the 
non-WTO country where it seeks to provide international services or 
where the cable lands, and, if so, the application and/or notification 
will be placed on a non-streamlined public notice, providing an 
opportunity for public comment. Further, the Commission will continue 
to coordinate applications with the United States Trade Representative 
(USTR) and other Executive Branch agencies, and defer to these agencies 
in matters relating to national security, law enforcement, foreign 
policy or trade policy concerns. In evaluating applications or 
notifications, the Commission will retain the ability to request 
additional information from the applicant in response to concerns 
raised by USTR or any interested party, or as a result of its own 
public interest analysis. In addition, the Commission will continue to 
protect competition and prevent anticompetitive strategies that foreign 
carriers can use to discriminate among U.S. carriers by continuing to 
maintain its dominant carrier safeguards and ``no special concessions'' 
rules. This approach will enable the Commission to address any specific 
concerns that may arise with a particular non-WTO market and 
potentially effectuate changes in that market related to those 
concerns, rather than requiring such information from all such 
applicants. In this manner the Commission will continue its policy of 
promoting effective competition in the U.S. telecommunications service 
market.
    2. The ECO Test is a set of criteria first adopted in the 1995 
Foreign Carrier Entry Order, 60 Fed Reg 67332 (1995), as a condition of 
entry into the U.S. international telecommunications services market by 
foreign carriers that possess market power on the foreign end of a 
U.S.-international route on which they seek to provide service pursuant 
to section 214 of the Communications Act of 1934, as amended (the 
``Act''), 47 U.S.C. 214(a). The Commission adopted the ECO Test in 
response to concerns that foreign carriers with market power seeking to 
enter the U.S. international services market could use their foreign 
market power to benefit themselves and/or their U.S. affiliates, to the 
disadvantage of unaffiliated U.S. carriers and, ultimately, U.S. 
consumers. The test was designed to serve three stated goals for the 
regulation of U.S. international telecommunications services: To 
promote effective competition in the U.S. telecommunications service 
market; to prevent anticompetitive conduct in the provision of 
international services or facilities; and to encourage foreign 
governments to open their telecommunications markets.
    3. Notice of Proposed Rulemaking (NPRM). The Commission initiated 
this proceeding in light of the developments in international 
telecommunications and the small number of filings requiring an ECO 
Test determination since the ECO Test was adopted in 1995. In addition, 
since 1998, when the WTO Basic Telecommunications Agreement went into 
effect, WTO Membership has grown from 132 to 159 Members. There are 24 
WTO Observer countries in the process of joining, or acceding to, the 
WTO. Although approximately one-fifth of all countries are WTO 
Observers or other non-WTO countries that have not opened up their 
markets pursuant to WTO accords, the WTO Observers and non-WTO 
countries collectively represent only about one percent of the world's 
gross domestic product.
    4. In the Notice of Proposed Rulemaking (NPRM), the Commission 
noted that the detailed ECO Test requirements were designed to be 
applied to countries that could support advanced regulatory regimes, 
but that most of the remaining non-WTO Member countries are smaller 
countries and may be without resources to support a regulatory 
framework that meets all of the detailed ECO Test requirements. 
Further, the Commission stated that the most recent actions taken show 
that a non-WTO country may have a relatively open market even if its 
regulatory regime does not fully satisfy the ECO Test with the 
precision originally anticipated by the rules.
    5. In view of these considerations, the Commission proposed to 
either (1) eliminate the ECO Test from the Commission's section 214 
rules, or (2) modify the ECO Test criteria for section 214 authority 
applications and cable landing licenses, including their respective 
foreign carrier affiliation notifications, and to codify these modified 
ECO Tests in the Commission rules.
    6. AT&T filed comments in response to the NPRM supporting 
modification of the ECO Test as proposed in the NPRM, and proposing to 
expand the section 214 ECO Test to add a requirement that U.S. carriers 
have the right to own capacity on submarine cables landing in the 
foreign country and the ability to access such capacity at submarine 
cable stations operated by foreign dominant carriers in the applicant's 
country.
    7. The United States Trade Representative (USTR) supported the 
Commission's proposal in this proceeding to eliminate the ECO Test 
applied to applications for section 214 authorizations and cable 
landing licenses. USTR wants to ensure that Executive Branch agencies, 
and, in particular, USTR, continue to receive notice of applications 
and retain the ability to file comments in opposition to applications 
where trade policy issues are implicated.
    8. Revised and Codified Rules for Foreign Entry Into the U.S. 
Telecommunications Market. The Report and Order adopts the NPRM 
proposal to eliminate the ECO Test which the Commission applied to 
review of international section 214 applications and cable landing 
license applications filed by foreign carrier or their affiliates that 
have market power in non-WTO countries, and to notifications filed by 
authorized U.S. carriers or cable landing licensees affiliated with, or 
seeking to become affiliated with, a foreign carrier having market 
power in a non-WTO country that the U.S. carrier or cable landing 
licensee is authorized to serve. The Report and Order also codifies the 
modified rules in sections 1.767(a)(8), 1.768(g)(2), 63.11(g)(2) and 
63.18(k) of the Commission's rules.
    9. The Commission concluded in the Report and Order that retention 
of the ECO Test is no longer necessary to protect competition, and 
found that elimination of unnecessary requirements will reduce 
regulatory burdens and enhance its ability to expeditiously review 
foreign entry that may be advantageous to U.S. consumers. By 
eliminating the ECO Test, the filing

[[Page 31875]]

and review process for applications filed by foreign carriers having 
market power in non-WTO countries for entry into the U.S. market for 
the provision of facilities and services is simplified. The Commission 
found that it can effectively analyze potential market barriers on an 
as-needed basis, rather than through a formal test, to make a public 
interest determination as to whether U.S. carriers are experiencing 
competitive problems in a particular market, and whether the public 
interest would be served by authorizing the foreign carrier to enter 
the U.S. market. Under this approach, applications and notifications 
placed on non-streamlined public notice will provide an opportunity for 
U.S. carriers and government agencies to review and provide comment on 
such applications and notifications as to whether they are experiencing 
problems in entering the market of the relevant non-WTO country. As 
noted, in considering potential areas of concern the review of any 
particular application, the Commission will coordinate with the USTR, 
which is in the best position to determine whether a non-WTO country 
supports open entry, and other appropriate agencies as necessary.
    10. The Commission also emphasized that, in contrast to its 
approach to applicants from WTO countries, this approach does not carry 
the presumption in favor of market entry that is applied in the WTO 
context. Thus, the regulatory framework will continue to encourage non-
WTO countries to seek WTO membership and should not be interpreted by 
either WTO or non-WTO Members as a signal that they can resist pressure 
to liberalize their markets. As proposed in the NPRM and stated in the 
Report and Order, the Commission will continue to apply the dominant 
carrier safeguards in sections 63.10 and 1.767 of the rules, and the 
``no special concessions'' rules in sections 63.14 and 1.767 of the 
rules, which help prevent certain anticompetitive strategies that 
foreign carriers can use to discriminate among their U.S. carrier 
correspondents.
    11. Elimination of ECO Test to Section 214 applications and Foreign 
Ownership Notifications: The Commission will no longer will apply the 
ECO Test to (1) section 214 applications filed by foreign carriers or 
their affiliates that have market power in non-WTO countries they seek 
to serve and (2) notifications filed by an authorized U.S. carrier 
affiliated with or seeking to become affiliated with a foreign carrier 
that has market power in a country in which the U.S. carrier is 
authorized to serve. The Commission will continue to require a foreign 
carrier applicant for a section 214 authorization or a U.S. authorized 
carrier filing a foreign affiliation notification to provide the 
information set out in the rules to establish its qualifications to 
receive such authorization or to identify its foreign affiliation. 
Based on information submitted by the applicant or notifying carrier, 
if the Commission determines that the applicant or notifying carrier is 
a foreign carrier, or is seeking to become affiliated with, a foreign 
carrier with market power in a non-WTO Member country, then the 
application will not be eligible for streamlined processing and will be 
placed on a 28-day public notice pursuant to Commission rules. Foreign 
carrier affiliation notifications will continue to require a 45-day 
notification prior to consummation of the transaction. This notice 
period provides an opportunity for U.S. carriers and government 
agencies to file comments as to whether they are experiencing problems 
in entering the market of the relevant non-WTO country. The Commission 
may also seek additional information from the applicant or notification 
filer including, but not limited to, the ability of U.S. carriers to 
obtain a controlling interest in a carrier in the foreign country, the 
existence of competitive safeguards in the foreign country to protect 
against anticompetitive practices, the existence of reasonable and 
nondiscriminatory interconnection arrangements, and whether U.S. cable 
licensees have the right to enter the market of the non-WTO country and 
own or access capacity on submarine cables landing in that country. 
Through this approach the Commission will be able to assess the ability 
of U.S. carriers to effectively compete in a particular market of a 
foreign U.S. 214 applicant, and make a determination and take action 
appropriate to the market in question. If the Commission should find 
that U.S. carriers are experiencing competitive problems in the home 
market of a foreign carrier section 214 applicant or notification 
filer, the Commission could deny the application or impose conditions 
on the authorization that address the problems it may find.
    12. Elimination of ECO Test to Cable Landing Licenses and Foreign 
Ownership Notifications: The Commission eliminated the ECO Test as a 
formal requirement for cable landing license applications and 
notifications of foreign carrier affiliation by submarine cable 
licensees, and modified its rules to require that that an applicant or 
notification filer from a non-WTO Member country demonstrate, pursuant 
to sections 47 CFR 1.767 and 47 CFR 1.768, whether or not it has market 
power in the non-WTO Member country where the cable lands, with 
reference to 47 CFR 63.10(a) of the rules. If the demonstration reveals 
that the applicant is itself, or is affiliated with, a foreign carrier 
with market power in the proposed cable's non-WTO destination country, 
then, pursuant to existing rules, the application will not be eligible 
for streamlined processing. With respect to notifications, the 
disclosure of market power in the non-WTO country will trigger the 
existing 45-day waiting period before the transaction can be 
consummated.
    13. Applications not subject to streamlining are placed on public 
notice for 28 days and the Commission has 90 days to act on them, 
subject to extension of this period. This period provides an 
opportunity for U.S. cable licensees to comment and indicate specific 
problems that they have in owning and operating cables facilities in 
the country where the cable lands. In addition to investigating 
allegations of such problems, the Commission will coordinate comments 
that are filed with appropriate Executive Branch agencies and impose, 
if necessary, appropriate conditions on the license.

Paperwork Reduction Act of 1995 Analysis

    14. This Report and Order contains modified information collection 
requirements, subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. These information collection requirements will be 
submitted to the Office of Management and Budget (OMB) for review under 
Section 3507(d) of the PRA. The Commission will publish a separate 
notice in the Federal Register inviting comment on the new or revised 
information collection requirement(s) adopted in this document. The 
requirement(s) will not go into effect until OMB has approved it and 
the Commission has published a notice announcing the effective date of 
the information collection requirement(s). In addition, we note that 
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 
107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific 
comment on how the Commission might further reduce the information 
collection burden for small business concerns with fewer than 25 
employees.

Final Regulatory Flexibility Certification

    15. The Regulatory Flexibility Act of 1980, as amended (RFA), 
requires that a final regulatory flexibility analysis be

[[Page 31876]]

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. In this Report and Order, the Commission decides to eliminate 
the ECO Test that currently applies to review of applications for 
international section 214 authority and cable landing licenses. It also 
eliminates the ECO Test as it applies to notifications filed by 
authorized U.S. carriers and cable landing licensees of an affiliation 
with a foreign carrier with market power in a non-WTO Member country. 
Instead of applying an ECO Test to these applications, the Commission 
will apply a simplified approach to the filing and review of section 
214 applications, cable landing license applications, and notifications 
from authorized U.S.-international carriers and cable landing 
licensees. The Commission maintains its ability to seek additional 
information from the applicant and notification filer as needed if an 
inquiry is warranted as to whether an applicant's home market is open 
to entry for U.S. international carriers and cable landing licensees. 
This approach will reduce unnecessary regulatory costs and burdens 
where only limited investigation is necessary in connection with an 
application. Under this approach, the Commission continues to maintain 
other regulatory safeguards under section 214 of the Communications Act 
and under the Cable Landing License Act, as well as to maintain 
existing coordination arrangements with Executive Branch agencies to 
protect national security and take into account law enforcement, 
foreign policy and trade policy considerations.
    17. From a historical perspective, the Commission has had little 
need to apply the ECO Test since its adoption in 1995. The Commission 
has taken only eight actions applying the ECO Test in the 19 years 
since its adoption. While the Commission cannot project exactly how 
many foreign carriers, or affiliates of foreign carriers with market 
power in non-WTO Member countries, may in the future seek entry into 
the U.S. telecommunications market, there is nothing in the record to 
suggest that there will be significantly more such carriers than there 
have been in the past. Therefore, the Commission certifies that the 
requirements of this Report and Order will not have a significant 
economic impact on a substantial number of small entities. The 
Commission will send a copy of the Report and Order, including this 
certification, to the Chief Counsel for Advocacy of the SBA. This final 
certification will also be published in the Federal Register.

Report to Congress

    18. The Commission will send a copy of the Report and Order, 
including this Final Regulatory Flexibility Certification (FRFC), in a 
report to be sent to Congress and the Government Accountability Office 
pursuant to the Congressional review Act. In addition, the Commission 
will send a copy of the Report and Order, including a copy of this 
FRFC, to the Chief Counsel for Advocacy of the SBA. A copy of the 
Report and Order and FRFC (or summaries thereof) will also be published 
in the Federal Register.

Ordering Clauses

    19. It is ordered that, pursuant to the authority contained in 
sections 1, 2, 4(i) and (j), 201-205, 208, 211, 214, 303(r), and 403 of 
the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i)-
(j), 201-205, 208, 211, 214, 303(r), and 403, and the Cable Landing 
License Act, 47 U.S.C. 34-39 and Executive Order No. 10530, section 
5(a), this Report and Order is adopted, and the policies, rules, and 
requirements discussed herein are adopted, and parts 1 and 63 of the 
Commission's rules, 47 CFR parts 1 and 63, are amended as set forth in 
Appendix A.
    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 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 policies, rules, and 
requirements established in this decision shall take effect thirty (30) 
days after publication in the Federal Register, except for Sec. Sec.  
1.767(a)(8), 1.768(g)(2), 63.11(g)(2), and 63.18, which contains 
modified information collection requirements that require approval by 
the Office of Management and Budget under the PRA. The Federal 
Communications Commission will publish a document in the Federal 
Register announcing such approval and the relevant effective date.
    22. It is further ordered that this proceeding, IB Docket No. 12-
299, is hereby terminated.

List of Subjects

47 CFR Part 1

    Administrative practice and procedure, Cable landing licenses.

47 CFR Part 63

    Communications common carriers.

    Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communication Commission amends 47 CFR parts 1 and 63 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(i), 154(j), 
155, 157, 225, 227, 303(r), 309, 1403, 1404, and 1451.


0
2. Section 1.767 is amended by revising paragraph (a)(8) and the note 
to Sec.  1.767 to read as follows:


Sec.  1.767  Cable landing licenses.

    (a) * * *
    (8) For each applicant:
    (i) The place of organization and the information and 
certifications required in Sec. Sec.  63.18(h) and (o) of this chapter;
    (ii) A certification as to whether or not the applicant is, or is 
affiliated with, a foreign carrier, including an entity that owns or 
controls a cable landing station, in any foreign country. The 
certification shall state with specificity each such country;
    (iii) A certification as to whether or not the applicant seeks to 
land and operate a submarine cable connecting the United States to any 
country for which any of the following is true. The certification shall 
state with specificity the foreign carriers and each country:
    (A) The applicant is a foreign carrier in that country; or
    (B) The applicant controls a foreign carrier in that country; or
    (C) There exists any entity that owns more than 25 percent of the 
applicant, or controls the applicant, or controls a foreign carrier in 
that country.
    (D) Two or more foreign carriers (or parties that control foreign 
carriers)

[[Page 31877]]

own, in the aggregate, more than 25 percent of the applicant and are 
parties to, or the beneficiaries of, a contractual relation (e.g., a 
joint venture or market alliance) affecting the provision or marketing 
of arrangements for the terms of acquisition, sale, lease, transfer and 
use of capacity on the cable in the United States; and
    (iv) For any country that the applicant has listed in response to 
paragraph (a)(8)(iii) of this section that is not a member of the World 
Trade Organization, a demonstration as to whether the foreign carrier 
lacks market power with reference to the criteria in Sec.  63.10(a) of 
this chapter.

    Note to Paragraph (a)(8)(iv): Under Sec.  63.10(a) of this 
chapter, the Commission presumes, subject to rebuttal, that a 
foreign carrier lacks market power in a particular foreign country 
if the applicant demonstrates that the foreign carrier lacks 50 
percent market share in international transport facilities or 
services, including cable landing station access and backhaul 
facilities, intercity facilities or services, and local access 
facilities or services on the foreign end of a particular route.

* * * * *

    Note to Sec.  1.767: The terms ``affiliated'' and ``foreign 
carrier,'' as used in this section, are defined as in Sec.  63.09 of 
this chapter except that the term ``foreign carrier'' also shall 
include any entity that owns or controls a cable landing station in 
a foreign market. The term ``country'' as used in this section 
refers to the foreign points identified in the U.S. Department of 
State list of Independent States of the World and its list of 
Dependencies and Areas of Special Sovereignty. See http://www.state.gov.

* * * * *


0
3. Section 1.768 is amended by revising paragraph (g)(2) to read as 
follows:


Sec.  1.768  Notification by and prior approval for submarine cable 
landing licensees that are or propose to become affiliated with a 
foreign carrier.

* * * * *
    (g) * * *
    (2) In the case of a prior notification filed pursuant to paragraph 
(a) of this section, the authorized U.S. licensee must demonstrate that 
it continues to serve the public interest for it to retain its interest 
in the cable landing license for that segment of the cable that lands 
in the non-WTO destination market. Such a showing shall include a 
demonstration as to whether the foreign carrier lacks market power in 
the non-WTO destination market with reference to the criteria in Sec.  
63.10(a) of this chapter. In addition, upon request of the Commission, 
the licensee shall provide the information specified in Sec.  
1.767(a)(8). If the licensee is unable to make the required showing or 
is notified by the Commission that the affiliation may otherwise harm 
the public interest pursuant to the Commission's policies and rules 
under 47 U.S.C. 34 through 39 and Executive Order No. 10530, dated May 
10, 1954, then the Commission may impose conditions necessary to 
address any public interest harms or may proceed to an immediate 
authorization revocation hearing.

    Note to Paragraph (g)(2): Under Sec.  63.10(a) of this chapter, 
the Commission presumes, subject to rebuttal, that a foreign carrier 
lacks market power in a particular foreign country if the applicant 
demonstrates that the foreign carrier lacks 50 percent market share 
in international transport facilities or services, including cable 
landing station access and backhaul facilities, intercity facilities 
or services, and local access facilities or services on the foreign 
end of a particular route.

* * * * *

PART 63--EXTENSION OF LINES, NEW LINES, AND DISCONTINUANCE, 
REDUCTION, OUTAGE AND IMPAIRMENT OF SERVICE BY COMMON CARRIERS; AND 
GRANTS OF RECOGNIZED PRIVATE OPERATING AGENCY STATUS

0
4. The authority citation for part 63 continues to read as follows:

    Authority:  Sections 1, 4(i), 4(j), 10, 11, 201-205, 214, 218, 
403 and 651 of the Communications Act of 1934, as amended, 47 U.S.C. 
151, 154(i), 154(j), 160, 201-205, 214, 218, 403, and 571, unless 
otherwise noted.


0
5. Section 63.11 is amended by revising paragraph (g)(2) to read as 
follows:


Sec.  63.11  Notification by and prior approval for U.S. international 
carriers that are or propose to become affiliated with a foreign 
carrier.

* * * * *
    (g) * * *
    (2) In the case of a prior notification filed pursuant to paragraph 
(a) of this section, the U.S. authorized carrier must demonstrate that 
it continues to serve the public interest for it to operate on the 
route for which it proposes to acquire an affiliation with the foreign 
carrier authorized to operate in the non-WTO Member country. Such a 
showing shall include a demonstration as to whether the foreign carrier 
lacks market power in the non-WTO Member country with reference to the 
criteria in Sec.  63.10(a) of this chapter. If the U.S. authorized 
carrier is unable to make the required showing in Sec.  63.10(a) of 
this chapter, the U.S. authorized carrier shall agree to comply with 
the dominant carrier safeguards contained in Sec.  63.10(c) of this 
chapter, effective upon the acquisition of the affiliation. If the U.S. 
authorized carrier is notified by the Commission that the affiliation 
may otherwise harm the public interest pursuant to the Commission's 
policies and rules, then the Commission may impose conditions necessary 
to address any public interest harms or may proceed to an immediate 
authorization revocation hearing.

    Note to Paragraph (g)(2): Under Sec.  63.10(a) of this chapter, 
the Commission presumes, subject to rebuttal, that a foreign carrier 
lacks market power in a particular foreign country if the applicant 
demonstrates that the foreign carrier lacks 50 percent market share 
in international transport facilities or services, including cable 
landing station access and backhaul facilities, intercity facilities 
or services, and local access facilities or services on the foreign 
end of a particular route.

* * * * *


0
6. Section 63.18 is amended by revising paragraph (k) introductory 
text, adding a note to paragraph (k), redesignating paragraph (q) as 
(r), and adding new paragraph (q), to read as follows:


Sec.  63.18  Contents of applications for international common 
carriers.

* * * * *
    (k) For any country that the applicant has listed in response to 
paragraph (j) of this section that is not a member of the World Trade 
Organization, the applicant shall make a demonstration as to whether 
the foreign carrier has market power, or lacks market power, with 
reference to the criteria in Sec.  63.10(a) of this chapter.
* * * * *

    Note to Paragraph (k): Under Sec.  63.10(a), the Commission 
presumes, subject to rebuttal, that a foreign carrier lacks market 
power in a particular foreign country if the applicant demonstrates 
that the foreign carrier lacks 50 percent market share in 
international transport facilities or services, including cable 
landing station access and backhaul facilities, intercity facilities 
or services, and local access facilities or services on the foreign 
end of a particular route.

* * * * *
    (q) Any other information that may be necessary to enable the 
Commission to act on the application.
* * * * *
[FR Doc. 2014-12826 Filed 6-2-14; 8:45 am]
BILLING CODE 6712-01-P