Foreign Carrier Notification of Affiliation Rule |
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FACT
SHEET
SUMMARY OF CERTAIN REVISIONS TO THE FOREIGN CARRIER
NOTIFICATION OF AFFILIATION RULE
47 C.F.R. §63.11
- On September 19, 2000, the Commission released the Order on Reconsideration
of the Foreign Participation Order affirming the pro-competitive rules
and policies regarding foreign participation in the U.S. telecommunications
market and streamlining the foreign carrier notification of affiliation
requirement in § 63.11. See Rules and Policies on Foreign Participation
in the U.S. Telecommunications Market, IB Docket Nos. 97-142, Order
on Reconsideration, FCC
00-339 (rel. September 19, 2000). The revised rules became effective
on November 9, 2000 (Public
Notice).
- Under the previous version of § 63.11, an authorized international
section 214 holder must notify the Commission 60 days prior to
the consummation of an investment resulting in a foreign carrier affiliation
if:
(1) the authorized carrier,
or certain holding companies of the authorized carrier, acquires a
controlling interest in a foreign carrier, or
(2) a foreign carrier, or entity that
controls a foreign carrier, acquires either a controlling or greater
than 25% interest in the authorized carrier.
With respect to all other investments, our rules required authorized
carriers to submit post notifications of affiliations within
30 days of acquiring an affiliation.
- Now under the new rule, there are three types of foreign carrier affiliations
that would have normally been subject to prior notification under the
previous rule that are now subject to post notification. Specifically,
no prior notification is required if an authorized section 214
holder acquires an affiliation that would have been subject to prior
notification as detailed above, but the foreign carrier involved is
:
(1) a foreign carrier that
we have previously determined in an adjudication lacks market power;
(2) solely a resale carrier; or
(3) from a WTO Member and the carrier
can demonstrate that it qualifies for non-dominant treatment under
§ 63.10 or, in the alternative, agrees to comply with the dominant
carrier safeguards in § 63.10
In the event a foreign carrier affiliation is now subject to one of
these exceptions to the prior notification requirement, the authorized
carrier must now file a post notification of affiliation pursuant
to new § 63.11(c). The authorized carrier must also submit a certification
with the Commission as part of its notification indicating upon which
exception it is relying and certifying as to the factual basis for the
qualification.
- Under the new rule, the period for prior notification has also changed.
Instead of filing prior notifications of affiliation 60 days in advance
of the consummation of the transaction, an authorized carrier must now
file the prior notifications 45 days in advance.
- An authorized carrier filing prior notifications of affiliation may
also request that, for the initial 20 days of the 45 day period, the
notification be treated confidentially. After the initial 20 days, the
Commission's staff will no longer afford the notification confidentiality
and will accordingly place the foreign carrier notification on public
notice for comment.
- All authorized carriers that acquire a foreign carrier affiliation
that is not subject to the prior notification requirement must still
file a post notification of the affiliation.
- All carriers filing notifications under the rule, whether the notifications
are prior or post, must now indicate in the text of the notification
whether the notification is a prior or post notification. In the
case of prior notifications, carriers must also include the projected
closing date of the transaction. In the case of post notifications,
carriers must include the actual closing date.
- In circumstances where both a notification of foreign carrier affiliation
and an application for assignment or transfer of control will be filed
with the Commission, carriers are now required to cross-reference
these filings. We emphasize that separate filings are still required.
- If an authorized section 214 holder is acquiring an affiliation with
a foreign carrier from a non-WTO Member country and the affiliation
is subject to prior notification, then the authorized carrier must demonstrate
that the foreign carrier lacks market power in the non-WTO Member country
or make the Effective Competitive Opportunities (ECO) showing as required
in § 63.18(k)(3).
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