# Review of Submarine Cable Landing License Rules and Procedures To Assess Evolving National Security, Law Enforcement, Foreign Policy, and Trade Policy Risks; Schedule of Application Fees

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2025-03718

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** March 13, 2025
- **Citation:** 90 FR 12036

## Text

FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 0, 1, and 43
[OI Docket No. 24-523, MD Docket No. 24-524; FCC 24-119; FR ID 282229]
Review of Submarine Cable Landing License Rules and Procedures To Assess Evolving National Security, Law Enforcement, Foreign Policy, and Trade Policy Risks; Schedule of Application Fees

AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule.

SUMMARY:

The Federal Communications Commission (“FCC” or “Commission”) takes another important step to protect the Nation's submarine cable infrastructure from threats in an evolving national security and law enforcement landscape by undertaking the first major comprehensive review of the Commission's submarine cable rules since 2001. This review seeks to develop forward-looking rules to better protect submarine cables, identify and mitigate harms affecting national security and law enforcement, and facilitate the deployment of submarine cables and capacity to the market. Among other things, the Commission proposes to adopt a three-year periodic reporting requirement for submarine cable landing licenses; in the alternative, the Commission seeks comment on shortening the current 25-year submarine cable license term or adopting a shorter license term in combination with periodic reporting. The Commission also proposes or seeks comment on codifying the Commission's legal jurisdiction and other legal requirements in its rules to provide regulatory certainty to submarine cable owners and operators. Additionally, the Commission proposes and seeks comment on appropriate applicant and application requirements to account for the evolution of technologies and facilities and changes in the national security landscape over the last two decades and to ensure the Commission has targeted and granular information regarding the ownership, control, use of a submarine cable system, and other things, which are critical to the Commission's review to assess potential national security risks and other important public interest factors. Further, the Commission seeks comment on improving the quality of the circuit capacity data and facilitating the sharing of such information with other Federal agencies. Through these proposals, the Commission seeks to ensure that the Commission is exercising appropriate oversight of submarine cables to safeguard U.S. communications networks.

DATES:

Comments are due on or before April 14, 2025; and reply comments are due on or before May 12, 2025. Written comments on the Paperwork Reduction Act proposed information collection requirements must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before May 12, 2025.

ADDRESSES:

Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated in the
DATES
section of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). You may submit comments, identified by OI Docket No. 24-523 and MD Docket No. 24-524, by any of the following methods:

•
Electronic Filers:
Comments may be filed electronically using the internet by accessing the ECFS:
https://www.fcc.gov/ecfs.

•
Paper Filers:
Parties who choose to file by paper must file an original and one copy of each filing.

• Filings can be sent by hand or messenger delivery, by commercial courier, or by the U.S. Postal Service. All filings must be addressed to the Secretary, Federal Communications Commission.

• Hand-delivered or messenger-delivered paper filings for the Commission's Secretary are accepted between 8:00 a.m. and 4:00 p.m. by the FCC's mailing contractor at 9050 Junction Drive, Annapolis Junction, MD 20701. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

• Commercial courier deliveries (any deliveries not by the U.S. Postal Service) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.

• Filings sent by U.S. Postal Service First-Class Mail, Priority Mail, and Priority Mail Express must be sent to 45 L Street NE, Washington, DC 20554.

•
People with Disabilities.
To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to
fcc504@fcc.gov
or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

Send a copy of your comment on the proposed information collection to Cathy Williams, FCC, via email to
PRA@fcc.gov
and to
Cathy.Williams@fcc.gov.
Include in the comments the OMB control number 3060-0944.

FOR FURTHER INFORMATION CONTACT:

Desiree Hanssen, Attorney Advisor, Telecommunications and Analysis Division, Office of International Affairs, at (202) 418-0887 or via email at
Desiree.Hanssen@fcc.gov.
For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, send an email to
PRA@fcc.gov
or contact Cathy Williams, Office of Managing Director, at (202) 418-2918 or
Cathy.Williams@fcc.gov.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Notice of Proposed Rulemaking (
NPRM
), in OI Docket No. 24-523 and MD Docket No. 24-524; FCC 24-119, adopted on November 21, 2024, and released on November 22, 2024. The full text of this document is available on the FCC's website at
https://docs.fcc.gov/public/attachments/FCC-24-119A1.pdf
. The Notice of Proposed Rulemaking is adopted pursuant to sections 1, 4(i), 4(j), 201-255, 303(r), 403, 413 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 201-255, 303(r), 403, 413, and the Cable Landing License Act of 1921, 47 U.S.C. 34-39, and Executive Order 10530, section 5(a) (May 12, 1954) reprinted as amended in 3 U.S.C. 301.

To request materials in accessible formats for people with disabilities, send an email to
FCC504@fcc.gov
or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Providing Accountability Through Transparency Act.
Consistent with the Providing Accountability Through Transparency Act, Public Law 118-9, a summary of this document is available on
https://www.fcc.gov/proposed-rulemakings
.

Initial Paperwork Reduction Act of 1995 Analysis.
This document contains proposed information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due May 12, 2025.

Comments should address: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's

burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) way to further reduce the information collection burden on small business concerns with fewer than 25 employees. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

Synopsis

I. Notice of Proposed Rulemaking

1. In the
NPRM
, the Commission initiates a comprehensive review of its submarine cable rules to develop forward-looking rules to better protect submarine cables, identify and mitigate harms affecting national security and law enforcement, and facilitate the deployment of submarine cables and capacity to the market. The Commission believes this proceeding will improve Commission review and oversight of submarine cable landing licenses and ensure each licensee continues to serve the public interest in an evolving national security and law enforcement landscape.

A. Legal Authority Under the Cable Landing License Act of 1921

1. Commission Jurisdiction

a. General License Requirement

2. As an initial matter, the Commission proposes to codify in its rules when a submarine cable license is required under the Cable Landing License Act. The Cable Landing License Act states that “[n]o person shall land or operate in the United States any submarine cable directly or indirectly connecting the United States with any foreign country, or connecting one portion of the United States with any other portion thereof, unless a written license to land or operate such cable has been issued by the President.” The Cable Landing License Act further states that “[t]he conditions of sections 34 to 39 of this title shall not apply to cables, all of which, including both terminals, lie wholly within the continental United States.”
1

1
In 1921, the definition of “United States” included “the Canal Zone, the Philippine Islands, and all territory, continental or insular, subject to the jurisdiction of the United States of America.” In 1946, following the proclamation of the independence of the Philippines by the President, the definition was amended to remove the Philippines. In 1959, Hawaii and Alaska became part of the United States and were admitted as states. The Cable Landing License Act definition, however, was not later amended to incorporate Hawaii and Alaska as part of the continental United States, or other territories or possessions.

3. Specifically, the Commission proposes to adopt a rule stating that a submarine cable landing license must be obtained prior to landing a submarine cable that connects:

(1) the continental United States with any foreign country;

(2) Alaska, Hawaii or the U.S. territories or possessions with a

(i) foreign country,

(ii) the continental United States, or

(iii) with each other; or

(3) points within the continental United States, Alaska, Hawaii, or a territory or possession in which the cable is laid in international waters.

Although the Commission believes that the scope of the Cable Landing License Act has been well-understood, the Commission also believes that codifying these requirements will bring additional clarity to the application process and provide regulatory certainty to submarine cable owners and operators.

b. Submarine Cable System Definition

4. For the same reasons the Commission proposes to codify in its rules when a submarine cable landing license must be obtained, the Commission seeks comment generally on whether to adopt a definition of a submarine cable system. Conceptually and in simple terms, a submarine cable system is comprised of a cable laid beneath the water that carries telecommunication transmission signals between two or more cable landing stations containing equipment that converts submarine cable signals to terrestrial signals.
2

The wet segment of the submarine cable system makes landfall at the beach manhole or beach joint that, in turn, connects to the dry segment and submarine cable landing stations. A submarine cable landing station is a dry land facility where submarine cables terminate traffic, allowing voice, data, and internet to be transmitted to terrestrial or local networks.
3

At the terminal, equipment such as Submarine Line Terminal Equipment (SLTE),
4

converts cable signals to terrestrial signals allowing the cable to interconnect to terrestrial facilities in the United States.

2
In the Technical Appendix, the Commission provides a technical description of a submarine cable system for informational purposes.

3
Cable landing stations contain equipment that supplies power to optical submarine cables and equipment that receives signals from submarine cables and transmits signals to a backhaul network that terminates at a Point of Presence (PoP). A data center can serve as a cable landing station, and PoPs can be located within a cable landing station or data center.

4
The SLTE determines the cable's data throughput or performance.

5. Based on the description above, the Commission seeks comment on whether it is necessary to adopt a definition of submarine cable for purposes of the Commission's licensing process. If so, should the Commission define a submarine cable as a cable(s) laid beneath the water
5

that transmits voice, data, and internet between terminal cable landing stations that, among other functions, contain the SLTE located in the continental United States, Alaska, Hawaii, or the U.S. territories or possessions. The Commission believes that defining a submarine cable accordingly would account for a submarine cable system that may have more than one terminal landing point

located on or near the coast. Moreover, the Commission believes this definition is sufficiently flexible to also account for the various technical options available to cable owners and operators for routing traffic from a cable landing station located near the coast—which may have only certain equipment such as Power Feed Equipment (PFE)
6

—to another cable landing station to connect to a PoP, or similar facility. The Commission seeks comment on this definition and whether it would capture the current state of submarine cable systems and account for the evolution and upgrades of submarine cable technologies.

5
The Cable Landing License Act does not apply to submarine cables wholly within the continental United States, such as a cable traversing a river or a lake located wholly within the continental United States. A submarine cable landing license is required under the Cable Landing License Act, however, if a cable connects the United States to a foreign country, such as Canada or Mexico. The Commission has granted cable landing licenses, for instance, (1) to land and operate a submarine cable under the Rio Grande River connecting the United States and Mexico, (2) to land and operate a submarine cable located within a tunnel traversing the Detroit River between the United States and Canada, and (3) to land and operate a submarine cable across Lake Ontario connecting the United States and Canada. File No. SCL-LIC-20210930-00042,
Actions Taken Under Cable Landing License Act,
Public Notice, Report No. SCL-00376, 37 FCC Rcd 7380, 7381-82 (IB 2022) (granting a cable landing license to Neural Networks USA LLC “for the purpose of landing and operating a non-common carrier fiber optic submarine cable, the Neutral Networks Laredo Cable, that connects Laredo, Texas and Nuevo Laredo, Tamaulipas, Mexico,” which “will consist of three fiber optic cables in a seven duct conduit extending 251 feet under the Rio Grande River”);
GTE Sprint Communications Corp.; Application for a license to land in the United States a submarine cable extending between the United States at Detroit, Michigan and Canada at Windsor, Ontario,
S-C-L-85-002, Cable Landing License, 1986 WL 292524 at *1, paras. 2, 4 (CCB Jan. 10, 1986) (granting to GTE Sprint Communications Corp. a cable landing license “to land and operate a submarine cable between Detroit, Michigan and Windsor, Ontario, Canada,” which “will be located within the conduit space of the Detroit-Windsor tunnel which traverses the Detroit River between Detroit[,] Michigan and Windsor, Ontario”); File No. SCL-LIC-20180216-00002,
Actions Taken Under Cable Landing License Act,
Public Notice, Report No. SCL-00226, DA 18-1026, 2018 WL 4851455 at *2 (IB 2018) (granting a cable landing license to Crosslake Fiber USA LP “for the purpose of constructing, landing and operating a private fiber-optic submarine cable network, the Crosslake Fibre cable system, connecting Toronto, Ontario, with Cambria, New York,” which “will consist of a single, unrepeatered segment across Lake Ontario”).

6
The PFE, in general, provides the electrical current that powers submarine cable system repeaters and/or optical branching units, and are located in or close to terminal landing stations.

c. Public Interest Standard

6. The Commission proposes to codify in its rules the longstanding practice that applicants seeking a submarine cable landing license or modification, assignment, transfer of control, and renewal or extension of a cable landing license must include in their application information demonstrating how the grant of the application will serve the public interest, convenience, and necessity, consistent with the Commission's authority to withhold or revoke any license where doing so “will assist in securing rights for the landing or operation of cables in foreign countries, or in maintaining the rights or interests of the United States or of its citizens in foreign countries, or will promote the security of the United States.” The Commission has long found that national security, law enforcement, foreign policy, and trade policy concerns are important to its public interest analysis of submarine cable applications, and these concerns warrant continued consideration in view of evolving and heightened threats to the Nation's communications infrastructure.
7

The Commission's determination assesses whether the public interest, convenience, and necessity would be served by the grant of an application for a cable landing license or modification, assignment, transfer of control, and renewal or extension of a cable landing license and is based on the totality of the circumstances presented by each application, supplemented with additional information as necessary. The Commission seeks comment on this proposed codification.

7

See Executive Branch Review Report and Order,
85 FR 76360 (November 27, 20220), 35 FCC Rcd at 10928-29, para. 3 (“In adopting rules for foreign carrier entry into the U.S. telecommunications market over two decades ago in its
Foreign Participation Order,
the Commission affirmed that it would consider national security, law enforcement, foreign policy, and trade policy concerns in its public interest review of application for international section 214 authorizations and submarine cable landing licenses and petitions for declaratory ruling under section 310(b) of the Act.”);
see, e.g., Applications of T-Mobile US, Inc. and Sprint Corporation for Consent to Transfer Control of Licenses and Authorizations, et al.,
WT Docket 18-197, Memorandum Opinion and Order, Declaratory Ruling, and Order of Proposed Modification, 34 FCC Rcd 10578, 10732-33, para. 349 (2019) (“When analyzing a transfer of control or assignment application that involves foreign investment, we also consider public interest issues related to national security, law enforcement, foreign policy, or trade policy concerns.”).

d. Character Qualifications

7. The Commission proposes to codify in its rules regarding submarine cable applications the Commission's longstanding practice regarding the character qualifications of applicants for Commission licenses and authorizations. Specifically, the Commission proposes that it will consider whether an applicant seeking a cable landing license or modification, assignment, transfer of control, and renewal or extension of a cable landing license has the requisite character qualifications, including whether the applicant has violated the Cable Landing License Act, the Communications Act, or Commission rules, including making false statements or misrepresentations to the Commission; whether the applicant has been convicted of a felony; and whether there is an adjudicated determination that the applicant has violated U.S. antitrust or other competition laws, has been found to have engaged in fraudulent conduct before another government agency, or has engaged in other non-FCC misconduct the Commission has found to be relevant in assessing the character qualifications of a licensee or authorization holder.
8

The Commission has found in other contexts that such conduct demonstrates that an applicant may fail to comply with the Commission's rules and policies as well as any conditions on its authorization.
9

The public interest may therefore require, in a particular case, that the Commission deny an application for a cable landing license or modification, assignment, transfer of control, and renewal or extension of a cable landing license because the applicant has violated the Cable Landing License Act, the Communications Act, or the Commission rules, or other laws that may be indicative of the applicant's truthfulness and reliability, or that the Commission revoke a cable landing license on such grounds. The Commission believes consideration of an applicant's or cable landing licensee's regulatory compliance and adherence to other relevant laws is also consistent with the Commission's review of applications in other contexts and is important to the Commission's assessment as to whether the public interest, convenience, and necessity would be served by grant of the applications. The Commission seeks comment on this proposed codification.

8
The term “non-FCC misconduct” refers to misconduct other than a violation of the Rules or the Act. The Commission and the courts have recognized that “[t]he FCC relies heavily on the honesty and probity of its licensees in a regulatory system that is largely self-policing.” Reliability is a key, necessary element to operating a broadcast station in the public interest. An applicant or licensee's propensity to comply with the law generally is relevant because a willingness to be less than truthful with other government agencies, to violate other laws, and, in particular, to commit felonies, is potentially indicative of whether the applicant or licensee will in the future conform to the Commission's rules or policies.

9

See also MCI Telecommunications Corp.; Petition for Revocation of Operating Authority,
3 FCC Rcd 509, 512, n.14 (1988) (stating that character qualifications standards adopted in the broadcast context, while not applicable to common carriers, can provide guidance in the common carrier context).

e. Process To Withhold or Revoke a Cable Landing License

8. In the
NPRM,
the Commission proposes and seeks comment on adopting a procedural framework that it may use to consider whether withholding a grant of a cable landing license or revocation of a cable landing license is warranted pursuant to the Cable Landing License Act and Executive Order 10530. The Commission has specific statutory authority to withhold or revoke cable landing licenses under the Cable Landing License Act and Executive Order 10530. Section 35 of the Cable Landing License Act states that “[t]he President may withhold or revoke such license when he shall be satisfied after due notice and hearing that such action will assist in securing rights for the landing or operation of cables in foreign countries, or in maintaining the rights or interests of the United States or of its citizens in foreign countries, or will promote the security of the United States . . . .” In addition, section 5 of Executive Order 10530 states that the Commission is “designated and empowered to . . . withhold[ ] or revoke licenses to land or operate submarine cables in the United States . . . .” The Commission has not prescribed specific procedures applicable to withholding or revocation of a cable landing license, yet in the
Executive Branch Review Report and Order,
it has stated that if it is

considering revoking a license that was granted following referral to the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector (the Committee) or its predecessor pursuant to Executive Order 13913, it will provide “such notice and an opportunity to respond as is required by due process and applicable law, and appropriate in light of the facts and circumstances.”
10

The Commission seeks to adopt a process applicable to withholding or revocation of cable landing licenses that will enable it to fulfill its statutory responsibilities—including, among other things, promotion of the national and economic security of the United States and other public interest considerations, such as character issues—while ensuring procedural safeguards to protect licensees' due process rights.

10
Section 6 of Executive Order 13913 provides that the Committee may at any time “review existing licenses to identify any additional or new risks to national security or law enforcement interests of the United States.” Executive Order 13913 defines “license” as “any license, certificate of public interest, or other authorization issued or granted by the Federal Communications Commission (FCC) after referral of an application by the FCC to the Committee established by subsection 3(a) of this order or, if referred before the date of this order, to the group of executive departments and agencies involved in the review process that was previously in place.”

9. Specifically, the Commission seeks comment on integrating the approach it utilized in recent section 214 revocation proceedings—and which the Court of Appeals for the D.C. Circuit upheld
11

—where the Commission exercised its discretion to “resolve disputes of fact in an informal hearing proceeding on a written record,” and reasonably determined that the issues raised in those cases could be properly resolved through the presentation and exchange of full written submissions before the Commission itself.
12

The Commission tentatively finds that it may exercise similar procedural discretion in its evaluation of each case as to whether withholding or revocation of a cable landing license is warranted. The Commission believes that the statutory language “withhold . . . such license” is identical to the concept of denying an application. For purposes of submarine cable licenses, withholding of a license would apply to the Commission's consideration of a grant of an initial application for a cable landing license and an application to modify, assign, transfer control of, or renew or extend a cable landing license.
13

The Commission seeks comment on whether it may use the same informal hearing process or an alternative process if it considers termination of a cable landing license due to a licensee's failure to comply with any condition of the license.

11

China Telecom. (Ams.) Corp.
v.
FCC,
57 F.4th at 262 (citing
Procedural Streamlining of Administrative Hearings,
Report and Order, 35 FCC Rcd 10729, 10732-33, para. 11 (2020) (
Administrative Hearings Order
) (“ `The Communications Act gives the Commission the power of ruling on facts and policies in the first instance. In exercising that power, the Commission may resolve disputes of fact in an informal hearing proceeding on a written record. And the Commission may reach any decision that is supported by substantial evidence in the record.' ”)).

12

China Telecom (Ams.) Corp.
v.
FCC,
57 F.4th at 256, 269 (“As explained above, the FCC has broad discretion to craft its own rules `of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.'
Schreiber,
381 U.S. at 290, 85 S.Ct. 1459 (internal quotations omitted);
see also Vermont Yankee,
435 U.S. at 543, 98 S.Ct. 1197). The Commission has exercised this discretion to `resolve disputes of fact in an informal hearing proceeding on a written record.'
Streamlining Order,
35 FCC Rcd. at 10732. Here, the Commission reasonably determined that the issues raised in this case could be properly resolved through the presentation and exchange of full written submissions before the Commission itself.”).

13
Section 1.767(g)(15) sets forth that “[t]he cable landing license shall expire twenty-five (25) years from the in-service date, unless renewed or extended upon proper application. Upon expiration, all rights granted under the license shall be terminated.” The Commission notes that within the category of applications for modifications, different procedures might be appropriate based on the nature of the modification. For example, procedures for reviewing an application seeking to incorporate a revised mitigation agreement may be more streamlined than procedures applicable to modifications to update facilities or add a submarine cable landing station.

10. Further, the Commission proposes to modify the Office of International Affairs' (OIA) existing delegated authority to codify the Commission's existing ability to deny an application and to revoke and/or terminate a submarine cable landing license under the Cable Landing License Act and Executive Order 10530.
14

The Commission also proposes to delegate authority to OIA to implement these procedures described above for denial, revocation, and/or termination, as required by due process and applicable law and in light of the relevant facts and circumstances, including providing the applicant or licensee with notice and opportunity to respond.
15

14
The Commission's proposed delegation of authority to OIA would broaden OIA's existing delegated authority to act pursuant to § 0.19(q) and (r).

15
OIA's implementation could include, for example, establishing response and pleading cycle deadlines, addressing waiver requests, addressing requests for live hearing procedures, seeking additional information, and providing for additional pleading cycles.

(i) Due Process and Procedural Requirements

11. The Commission tentatively finds that the process it seeks to apply in cases involving withholding or revocation of cable landing licenses—which, in effect, would constitute an informal hearing process through the presentation and exchange of full written submissions before the Commission—is consistent with due process and procedural requirements under relevant statutes including the Cable Landing License Act, the Communications Act, and the Administrative Procedure Act (APA). The Cable Landing License Act sets forth, among other things, that “[t]he President may withhold or revoke such license when he shall be satisfied after due notice and hearing that such action will assist in securing rights for the landing or operation of cables in foreign countries, or in maintaining the rights or interests of the United States or of its citizens in foreign countries, or will promote the security of the United States . . . .” The authority vested in the President, including the authority to withhold or revoke cable landing licenses, is delegated to the Commission pursuant to Executive Order 10530, on the condition that “[n]o such license shall be granted or revoked by the Commission except after obtaining approval of the Secretary of State and such advice from any executive department or establishment of the Government as the Commission may deem necessary.”
16

Currently, the Commission's rules codify as a condition of such license that “[t]he cable landing 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 license or with the Commission's rules.”
17

16
Executive Order 10530, sec. 5(a).

17
Except as otherwise ordered by the Commission, the rules in § 1.767(g) apply to each licensee of a cable landing license granted on or after March 15, 2002.

12. The Cable Landing License Act, which is the source of authority from which authority to withhold or revoke a cable landing license emanates, states that the President may “withhold or revoke such [cable landing] license . . . after due notice and hearing,” but does not identify particular procedures that must be followed. As the Commission has stated, where an agency's enabling statute does not expressly require an “on the record” hearing and instead calls simply for a “hearing,” a “full hearing,” or uses similar terminology,

the statute does not trigger the APA's formal adjudication procedures absent clear evidence of congressional intent to do so.
18

Agencies must adhere to the formal hearing procedures in sections 554, 556, and 557 of the APA only in cases of “adjudication required by statute to be determined on the record after opportunity for an agency hearing.”
19

In addition to the Cable Landing License Act, neither the Communications Act, the Commission's rules, nor the APA requires trial-type hearing procedures. Congress has granted the Commission broad authority to “conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice.” The Commission has broad discretion to craft its own rules “of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.”
20

Furthermore, the Communications Act gives the Commission the power of ruling on facts and policies in the first instance. In exercising that power, the Commission may resolve disputes of fact in an informal hearing proceeding on a written record. For instance, the Commission's subpart B hearing rules provide procedures for hearings in appropriate circumstances, including procedures for the revocation of station licenses and construction permits.
21

In the
2023 VoIP Direct Access to Numbers Report and Order
(88 FR 80617, November 20, 2023), the Commission delegated authority to the Wireline Competition Bureau and the Enforcement Bureau to determine appropriate procedures and initiate revocation and/or termination proceedings and to revoke and/or terminate a direct access authorization, as required by due process and applicable law and in light of the relevant facts and circumstances, including providing the direct access authorization holder with notice and opportunity to respond.

18

See United States
v.
Florida East Coast Railway Co.,
410 U.S. 224, 234-38 (1973) (the words “after hearing” in the Interstate Commerce Act do not require formal APA adjudication);
see also, e.g.,

City of W. Chicago, Ill.
v.
U.S. Nuclear Regulatory Comm'n,
701 F.2d 632, 641 (statutory requirement of a “hearing” does not trigger formal, on-the-record hearing provisions of the APA);
Chem. Waste Mgmt., Inc.
v.
EPA,
873 F.2d 1477, 1480-83 (D.C. Cir. 1989) (no presumption that “public hearing” means “on the record” hearing);
Farmers Union Cent. Exch.
v.
FERC,
734 F.2d 1486, 1499 n.39 (D.C. Cir. 1984) (“after full hearing” is “not equivalent to the requirement of a decision `on the record' ”) (internal citation omitted).

19
5 U.S.C. 551(7) (defining “adjudication”).

20

Numbering Policies for Modern Communications et al.,
WC Docket No. 13-97 et al., Second Report and Order (88 FR 80617, November 20, 2023) and Second Further Notice of Proposed Rulemaking (88 FR 74098, October 30, 2023), 38 FCC Rcd 8951, 8972, para. 64 (2023) (delegating authority to the Wireline Competition Bureau and the Enforcement Bureau to determine appropriate procedures and initiate revocation and/or termination proceedings and to revoke and/or terminate a direct access authorization, as required by due process and applicable law and in light of the relevant facts and circumstances, including providing the direct access authorization holder with notice and opportunity to respond).

21
Section 1.91 of the Commission's rules applies subpart B hearing rules to revocations of “station license[s]” or “construction permit[s],” which refer to spectrum licenses issued under title III of the Communications Act.

13. The Commission proposes an informal written process for Commission actions on denial of applications and revocation and termination of cable landing licenses.
22

The Commission seeks comment on the procedural measures necessary to ensure the development of an adequate administrative record, including procedures for participation by other interested parties, and on the appropriate procedural safeguards to ensure due process. To determine what process is due, the Commission considers the factors set forth in the
Mathews
v.
Eldridge
three-part test: (1) “the private interest that will be affected by the official action;” (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;” and (3) “the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” With regard to the first
Mathews
factor (the nature of the private interest), while the Commission recognizes that denial of a cable landing license application or revocation of a cable landing license will have an impact on the applicant(s) or on the licensee(s) and any customers, the Commission tentatively finds that private companies have no unqualified right to land or operate a submarine cable in the United States. On the contrary, the Cable Landing License Act sets forth that a cable landing license may be withheld or revoked, stating that the President may “withhold or revoke such license when he shall be satisfied after due notice and hearing that such action will assist in securing rights for the landing or operation of cables in foreign countries, or in maintaining the rights or interests of the United States or of its citizens in foreign countries, or will promote the security of the United States.” The Cable Landing License Act and Executive Order 10530, which delegates this denial and revocation authority to the Commission, thereby puts regulated parties on notice that any application for a cable landing license is subject to denial by the Commission and any grant of a cable landing license is contingent on the Commission's authority to revoke such license. Further, whereas licensees facing revocation have a private interest in continuing to operate licensed facilities, applicants typically have no such interest.

22
In the 2020
Executive Branch Review Report and Order,
the Commission addressed how it would handle modifications and revocations requested by the executive branch.
See Executive Branch Review Report and Order,
35 FCC Rcd at 10963-64, para. 92 (“Consistent with current practice, the Commission will provide any affected authorization holder or licensee an opportunity to respond to the Committee's recommendation prior to any action by the Commission. This will address the commenters' concern that the Commission might proceed with modification or revocation of an existing authorization or license without warning or the opportunity to comment. [The Commission finds] that new rules or a separate proceeding are unnecessary to address Committee reviews of existing licenses as the Commission already has procedural safeguards in place to protect licensees' due process rights, and that until such time as the Commission has more experience with such Committee recommendations, it is more appropriate to tailor such procedures to the facts and circumstances of a particular Committee recommendation.”).

14. With regard to the second
Mathews
factor (risk of erroneous deprivation without additional procedures and their probable value), the Commission tentatively finds that the process it seeks to apply would provide cable landing licensees with sufficient due process—notice and the opportunity to be heard “at a meaningful time and in a meaningful manner.”
23

Neither the Cable Landing License Act, the APA, nor the Communications Act requires the conduct of evidentiary hearings for denial of cable landing license applications or revocation of cable landing licenses. The Commission tentatively finds it sufficient due process to provide applicants or cable landing licensees with timely and adequate notice of the reasons for any denial or revocation action, and opportunity to respond with their own evidence and to make any factual, legal, or policy arguments. Further, the process the Commission proposes would provide any other interested parties, including any joint applicants or licensees or other proposed or existing owners of a submarine cable, with notice and the opportunity to be heard. Finally, as noted above, the

private interests in grant of an application typically are less than the private interests in continued use of licensed facilities, thus, the Commission believes that it may appropriately deny an application with fewer procedures than would be appropriate for revocation. The Commission seeks comment on this analysis. Would the Commission's proposed process for denying initial applications be appropriate for renewal and extension applications
24

or for modification, assignment, or transfer of control applications? If not, what is the due process rationale for using different procedures in these circumstances?

23

See, e.g., Mathews,
424 U.S. at 333 (citing
Armstrong
v.
Manzo,
380 U.S. 545, 552 (1965));
cf.
5 U.S.C. 558(c)(1) and (2) (permitting “revocation . . . of a license” following “notice by the agency in writing” of any basis for revocation and an “opportunity to demonstrate compliance”).

24
For purposes of this proceeding, the Commission refers to applications to renew or extend a cable landing license collectively as “renewal applications.”

15. With regard to the third
Mathews
factor (the Government's interest), the Commission tentatively finds that “the fiscal and administrative burdens” on the Commission and the relevant executive branch agencies, including the Committee, weigh in favor of the Commission's proposal to base its procedures on those it utilized in the denial of an international section 214 application of China Mobile USA and in subsequent section 214 revocation proceedings involving Chinese state-owned entities. As the Commission stated in the
China Telecom Americas Order on Revocation and Termination, China Unicom Americas Order on Revocation,
and
Pacific Networks and ComNet Order on Revocation and Termination,
25

courts have recognized that hearings before an administrative law judge, with live testimony and cross examination, impose significant temporal and cost burdens on agencies. The Commission determined, among other things, that the fiscal and administrative burden on the Government would be especially heavy in those cases, as a trial before an administrative law judge could require participation by officials from other agencies and take time away from their essential duties to participate in additional administrative proceedings. For these same reasons, the Commission tentatively finds that the administrative burden on the Government would be heavy in cases involving denial of cable landing license applications or revocation of cable landing licenses. More importantly, given the national security issues that may be at stake, any resulting unwarranted delay could be harmful. The Commission also believes that traditional live hearing procedures involving testimony and cross-examination could entail significant administrative burdens on the Commission even in cases involving other issues that do not involve the executive branch agencies, such as character concerns, or other Commission rule violations. The Commission seeks comment on this assessment.

25

China Telecom (Americas) Corporation,
GN Docket No. 20-109, File Nos. ITC-214-20010613-00346, ITC-214-20020716-00371, ITC-T/C-20070725-00285, Order on Revocation and Termination, 36 FCC Rcd 15966, 15958, para. 27 (2021) (
China Telecom Americas Order on Revocation and Termination
),
aff'd, China Telecom. (Ams.) Corp.
v.
FCC,
57 F.4th 256 (D.C. Cir. 2022);
China Unicom (Americas) Operations Limited,
GN Docket No. 20-110, File Nos. ITC-214-20020728-00361, ITC-214-20020724-00427, Order on Revocation, 37 FCC Rcd 1480, 1499, para. 35 (2022) (
China Unicom Americas Order on Revocation
),
appeal pending sub nom China Unicom (Americas) Operations Limited
v.
FCC,
No. 22-70029 (9th Cir.);
Pacific Networks Corp. and ComNet (USA) LLC,
GN Docket No. 20-111, File Nos. ITC-214-20090105-00006 and ITC-214-20090424-00199, Order on Revocation and Termination, 37 FCC Rcd 4220, 4242, para. 29 (2022) (
Pacific Networks and ComNet Order on Revocation and Termination
) (“A detailed procedural history of Pacific Networks' and ComNet's authorizations can be found in the
Order to Show Cause.
”),
aff'd, Pacific Networks Corp.
v.
FCC,
77 F.4th 1160 (D.C. Cir. 2023);
see, e.g., Chem. Waste Mgmt., Inc.
v.
EPA,
873 F.2d at 1485;
G.E.
v.
EPA,
595 F. Supp. 2d 8, 38-39 (D.D.C. 2009).

16. The Commission seeks comment generally on its
Mathews
analysis and whether the process it proposes herein would provide applicants and cable landing licensees with sufficient due process and notice and opportunity to respond. The Commission notes that the process that it proposes to apply in cases involving denial of cable landing license applications or revocation of cable landing licenses is distinct from the Commission's subpart B hearing rules, including the written hearing rules codified in §§ 1.371 through 1.377. The Commission has never applied its subpart B hearing rules to every adjudication,
26

and has never had an established practice of requiring subpart B hearings for denial of cable landing license applications or revocation of cable landing licenses. Indeed, the Commission does not believe it would be appropriate to require subpart B rules and procedures, including the written hearing rules providing for discovery and the ability to request an oral hearing before a presiding officer, in all proceedings to deny cable landing license applications or to revoke cable landing licenses, particularly in cases involving national security issues, where the Commission has previously concluded that the burdens on the Government of implementing such procedures outweighed the private interest and the probable value of additional procedures. Moreover, under the subpart B hearing rules, if the Commission were to delegate initial responsibility to an administrative law judge, the resulting decision could be appealed to the full Commission—which would be required to review the record independently and would not owe any deference to the administrative law judge's determinations.
27

The Commission tentatively concludes that the extra step of appointing an administrative law judge to preside prior to the Commission's independent review, rather than simply proceeding directly before the Commission, will not be necessary for nor will enhance the ability of the Commission, which will be the ultimate arbiter, to decide matters that may arise in its evaluation of applications for a cable landing license or existing cable landing licenses. Further, courts have held that the question of whether to hold an evidentiary hearing is “within [the agency's] discretion, and it may `properly deny an evidentiary hearing if the issues, even disputed issues, may be adequately resolved on the written record, at least where there is no issue of motive, intent or credibility.' ” Nevertheless, the Commission seeks comment on whether it should provide a process by which an applicant for a cable landing license or a cable landing licensee may request a live hearing in certain cases. The Commission also seeks comment on whether it should use different procedures for matters that do not involve executive branch expertise. If so, what due process or administrative considerations are relevant to this determination?

26
In fact, § 1.201 of those rules provides that subpart B applies only to cases that “have been designated for hearing.” An explanatory note makes clear that the new procedures for written hearings are a subset of such cases.

27

See Kay
v.
FCC,
396 F.3d 1184, 1189 (D.C. Cir. 2005) (explaining how “an agency reviewing an ALJ decision is not in a position analogous to a court of appeals reviewing a case tried to a district court”).

17. Furthermore, unlike revocations of title III station licenses and construction permits, the Commission may not revoke a cable landing license “except after obtaining approval of the Secretary of State and such advice from any executive department or establishment of the Government as the Commission may deem necessary.” Therefore, in contrast to subpart B hearings, any revocation procedures for cable landing licenses must integrate approval or objection by the State Department before the Commission may issue a final decision. The Commission notes that the Commission and the State Department have existing procedures by which the State Department approves

the Commission's grant of a cable landing license application or revocation of a cable landing license, as required by Executive Order 10530, and these procedures would continue to apply to any revocation of a cable landing license. Such procedures would not apply to the Commission's denial of a cable landing license application, given Executive Order 10530 does not require the State Department's approval of a denial action and expressly states that “no such license shall be
granted or revoked
by the Commission except after obtaining approval of the Secretary of State . . . .” The Commission notes that the language in Executive Order 10530 appears inconsistent with § 1.767(b) of the existing rules, which states that cable license applications are “acted upon by the Commission after obtaining the approval of the Secretary of State.” The term “acted upon” would appear to include denial of an application. The Commission proposes to amend the rule so that it does not state that denial of an application requires approval by the Secretary of State. The Commission seeks comment on the change. While the procedures under subpart B do not automatically apply to denial of cable landing license applications or revocation of cable landing licenses, the Commission seeks comment on whether it should incorporate these or similar procedures, including hearings before an administrative law judge, should the Commission determine they are appropriate in a specific case, for example where a matter does not involve executive branch participation. Under what circumstances, if any, should any such procedures be incorporated in denial or revocation proceedings involving cable landing licenses? The Commission further seeks comment on whether its procedures for denial of an application might be more streamlined than the Commission's procedures for revocation of an existing license, consistent with the Cable Landing License Act, the APA, and due process.
28

Should the Commission's procedures for denial of an application to modify, assign, or transfer control of a license, or for renewal and extension applications mirror the Commission's procedures or denial of an initial application? What considerations are relevant to this determination?

28
The Commission notes, for example, that it denied China Mobile USA's application for an international section 214 authorization after review of the executive branch recommendation, China Mobile USA's opposition, and the executive branch reply. In contrast, when the Commission subsequently revoked the international section 214 authorizations of CTA, the Commission provided notice and an opportunity to respond before it instituted a revocation proceeding. Similarly, under the APA, the procedure for denying an application need not mirror the procedure for revoking a license.
Compare
5 U.S.C. 558(c) (“When application is made for a license required by law, the agency, with due regard for the rights and privileges of all the interested parties or adversely affected persons and within a reasonable time, shall set and complete proceedings required . . . by law and shall make its decision”)
with id.
(“Except in cases of willfulness or those in which public health, interest, or safety requires otherwise, the withdrawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency proceedings therefor, the licensee has been given—(1) notice by the agency in writing of the facts or conduct which may warrant the action; and (2) opportunity to demonstrate or achieve compliance with all lawful requirements.”).

(ii) Denial and Revocation Proceedings

18. Under the Commission's existing rules, the filing of an initial application for a cable landing license or an application to modify, assign, transfer control, or renew or extend a cable landing license after the Commission places the application on an Accepted for Filing public notice commences a proceeding in which the Commission may grant or deny an application. Commission staff may seek additional information after an application is filed, and once complete, the application is placed on public notice.
29

Any executive branch recommendation to deny or condition the grant of an application is included in the record of the proceeding, and the Commission provides the applicant a written opportunity to respond. The Commission considers the entire record in reaching its determination. The Commission or OIA, pursuant to its delegated authority, can deny applications for cable landing licenses.
30

Consistent with the Commission's rules, applicants may seek reconsideration of a denial of an application. The Commission seeks comment on the extent to which existing procedures for denial of applications should be modified in any respect. The Commission tentatively concludes that additional procedures are not warranted but that OIA should have delegated authority to adopt additional procedures on a case-by-case basis as circumstances warrant, and consistent with due process. The Commission proposes that it may commence a revocation proceeding either on its own initiative or upon the filing of a recommendation by the executive branch agencies, including the Committee, to revoke the license of a cable landing licensee. To the extent the Commission considers whether revocation of a cable landing license is warranted, the Commission proposes to implement the approach it used in the most recent section 214 revocation proceedings. Specifically, in those revocation proceedings, the Commission exercised its discretion to “resolve disputes of fact in an informal hearing proceeding on a written record,” and reasonably determined that the issues raised in those cases could be properly resolved through the presentation and exchange of full written submissions before the Commission itself. The Commission explained that although it adopted regulations prescribing certain procedures for the revocation of station licenses and construction permits pursuant to part 1, subpart B of its rules, those regulations do not apply to the revocation of a section 214 authorization. To provide affected carriers with due process, the Commission allowed them to submit evidence and arguments in writing and determined the need for the revocation and/or termination of section 214 authorizations on the basis of a written record. The court of appeals affirmed the Commission's use of these procedures.
31

The Commission seeks comment on whether it should incorporate similar procedures to determine whether revocation of a cable landing license is warranted. The Commission also seeks comment on whether it should retain authority to modify these procedures on a case-by-case basis as circumstances warrant, as long as any alternative procedures provide adequate due process.

29

See
47 CFR 1.767(a)(10) (requiring “[a]ny other information that may be necessary to enable the Commission to act on the application.”).

30
47 CFR 0.351(a)(9) (delegating authority to OIA “[t]o act upon applications for cable landing licenses pursuant to § 1.767 of this chapter”).

31

China Telecom (Americas) Corp.,
57 F.4th at 262 (citing
Administrative Hearings Order,
35 FCC Rcd at 10732-33, para. 11) (“ `The Communications Act gives the Commission the power of ruling on facts and policies in the first instance. In exercising that power, the Commission may resolve disputes of fact in an informal hearing proceeding on a written record. And the Commission may reach any decision that is supported by substantial evidence in the record.' ”));
id.
at 268-71 (holding that discovery and live hearing procedures, and an opportunity to achieve or demonstrate compliance were not required “by statute, regulation, FCC practice, or the Constitution”).

19. The Commission seeks comment on whether it may use the same process or an alternative process if it considers termination of a cable landing license due to a licensee's failure to comply with any condition of the license. Under section 5 of Executive Order 10530, the Commission is “designated and empowered to . . . withhold[ ] or revoke licenses to land or operate submarine cables in the United States . . . .” Separate and apart from revocation, the Commission uses the term

“termination” where a license or authorization is terminated based on the licensee's or authorization holder's failure to comply with a condition of the license or authorization, and has determined that the procedures applicable to termination need not mirror the procedures used for revocation of licenses or authorizations.
32

The Commission proposes to delegate authority to OIA to determine appropriate procedures, within the framework authorized by the Commission and consistent with Commission precedent and guidance, and initiate revocation and/or termination proceedings and revoke and/or terminate a cable landing license, as required by due process and applicable law and in light of the relevant facts and circumstances, including providing a licensee with notice and opportunity to respond and, where appropriate, to achieve compliance with all lawful requirements.
33

32

See China Telecom Americas Order on Revocation and Termination,
36 FCC Rcd at 15988, para. 35;
see also id.
at 15989, para. 36 (“[S]ection 558(c)(2) does not grant a substantive right to escape from a condition that terminates a license.”);
Atlantic Richfield Co.
v.
United States,
774 F.2d 1193, 1200-01 (D.C. Cir. 1985) (holding that the procedural requirements of section 558(c) apply only where “the licensee [may] be able to establish compliance with all legal requirements or . . . change its conduct in a manner that will put its house in lawful order”) (internal quotation and citations omitted).

33

See China Telecom. (Ams.) Corp.
v.
FCC,
57 F.4th at 270 (“Given the futility of offering China Telecom even more of an opportunity to demonstrate or achieve compliance than they received, the Commission did not err in denying it.”);
Pacific Networks Corp.
v.
FCC,
77 F.4th at 1166 (“In short, the FCC reasonably explained why no realistic agreement could have worked given the carriers' proven lack of trustworthiness.”).

20. The Commission seeks comment on whether this procedural framework would provide cable landing licensees and any other affected parties with sufficient notice of the basis for any denial, revocation, or termination action, an opportunity to present evidence and arguments that support their respective positions, and an opportunity to respond to opposing evidence and arguments. The Commission also seeks comment on whether this process would ensure the development of an adequate administrative record, including procedures for participation by other affected individuals and entities, and appropriate procedural safeguards to ensure due process.

21.
Cable Landing Licenses/Licensees That are Insolvent or No Longer Exist.
Section 1.767(m)(2) of the rules requires that “[a]ny licensee that seeks to relinquish its interest in a cable landing license shall file an application to modify the license.” The Commission's records in the International Communications Filing System (ICFS) and other records, indicate that some submarine cables licensed by the Commission may not have commenced service and/or some cable landing licensees of record may be insolvent or no longer in operation.
34

Furthermore, some licensees that may be insolvent or no longer exist did not file a modification application to relinquish their interest in the cable landing license or otherwise notify the Commission. The Commission seeks comment on what processes it should adopt when submarine cables and/or licensees are insolvent or no longer exist generally. The Commission seeks comment on whether the same process proposed above is appropriate in all cases involving cable landing licenses, or whether the Commission should consider alternative processes. For example, should the Commission adopt a similar cancellation process as proposed in the
Evolving Risks NPRM
(88 FR 50486, August 1, 2023) for international section 214 authorization holders that are no longer in business, where failure to timely respond to an information collection or other inquiry by the Commission may be deemed presumptive evidence that the cable landing licensee is no longer in operation?
35

In these instances, the Commission or OIA may assess whether the cable landing licensee no longer complies with certain terms of the license or the Commission's rules,
36

and thus revocation and/or termination of the license or the licensee's rights under the license and the Cable Landing License Act is warranted.
37

34

See, e.g.,
Letter from Peter J. Schildkraut, Counsel for AT&T Mobility Puerto Rico Inc., to Marlene H. Dortch, Secretary, FCC at 2-3 (Feb. 5, 2020) (on file in File No. SCL-MOD-20191202-00038) (filing supplement to modification application and addressing, among other things, that the corporate status of certain licensees is void according to state records).

35

See Evolving Risks NPRM,
38 FCC Rcd at 4363, paras. 25-26;
id.
at 4377, para. 66.

36
47 CFR 1.767(g)(14) (“The cable landing 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 license or with the Commission's rules . . . .”).

37
For instance, the Commission's rules require, as a condition of a cable landing license, that “[t]he licensee, or in the case of multiple licensees, the licensees collectively, 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 the Commission's rules and any specific conditions of the license.”
See also
47 CFR 1.767(m)(2).

22. For consortium cables, if any of the cable landing licensees no longer exists and was unable to file an application to modify the license to relinquish its interest in the license, should the Commission adopt rules requiring the remaining joint licensee(s) of the cable, if any, to collectively file a modification application to remove the licensee from the license by demonstrating and certifying that (1) the licensee no longer exists as a legal entity, and (2) the remaining licensee(s) will retain collectively
de jure
and
de facto
control of the U.S. portion of the cable system sufficient to comply with the requirements of the Commission's rules and any specific conditions of the license? Or, should the Commission adopt rules requiring joint licensees of a submarine cable system to identify the lead licensee responsible for administrative matters concerning the cable system, including directing the lead licensee to submit a filing in the record demonstrating and certifying whether or not an identified licensee is insolvent or has ceased to exist and that the remaining licensee(s) will retain collectively
de jure
and
de facto
control of the U.S. portion of the cable system?

2. Three-Year Periodic Reporting

23. Currently, a cable landing license expires “twenty-five (25) years after the in-service date for the cable, unless renewed or extended upon proper application” pursuant to § 1.767(g)(15) of the Commission's rules.
38

The Commission, however, does not routinely require a submarine cable landing licensee to provide updated ownership and related submarine cable system information during the 25-year term with the exception of annual circuit capacity data. The annual circuit capacity data, however, lacks critical ownership and facilities information that would allow the Commission and other Government agencies to assess for evolving national security and law enforcement concerns. To ensure that the Commission has the information it needs to timely monitor and continually assess national security or other risks that may arise over the course of a licensee's 25-year license term, the Commission proposes to require

licensees to provide certain information to the Commission every three years (hereinafter, “periodic reporting”). Alternatively, the Commission seeks comment on whether a different time period would support the Commission's goals.

38
47 CFR 1.767(g)(15) (“The licensee must notify the Commission within thirty (30) days of the date the cable is placed into service. The cable landing license shall expire twenty-five (25) years from the in-service date, unless renewed or extended upon proper application. Upon expiration, all rights granted under the license shall be terminated.”).
See 2001 Cable Report and Order,
67 FR 1615 (January 14, 2002), 16 FCC Rcd 22167 (codifying the 25-year license term condition in § 1.767(g)(14), and which is currently codified in § 1.767(g)(15)). The 25-year license term is one of the routine conditions the Commission adopted in 2001 that applies to “each licensee of a cable landing licenses granted on or after March 15, 2002.”

24. As a fundamental matter, it is critical that the Commission has a continuous and systematic understanding of who owns and controls submarine cables and how they are used because submarine cables are a significant component of the global communications ecosystem. Submarine cables serve as the foundation for the global internet infrastructure and carry over 99% of transoceanic digital communications. Submarine cables are also critical infrastructure that historically have carried more than 95% of all U.S.-international voice, data, and internet traffic, including civilian and military U.S. Government traffic. And increasing demand for capacity
39

has spurred the deployment of more submarine cables.

39
Telegeography reports that, “[a]s recently as 2016, internet backbone providers accounted for the majority of demand.” At that time, internet backbone providers or internet Service Providers (ISPs) included businesses, such as AT&T, Verizon, Comcast, Tata Communications, CenturyLink, Cogent Communications, Deutsche Telekom, GTT, NTT Communications, and Sprint, among others. Now, internet backbone providers no longer dominate the demand for global submarine cable capacity. According to TeleGeography, “a handful of major content and cloud service providers—namely Google, Facebook, Amazon, and Microsoft—have become the primary sources of demand. As of 2020, these companies are the dominant users of international bandwidth, account for two-thirds of all used international capacity.” These entities “led the way in building mega Data Centers to meet th[e] growing demand [for data processing and storage capacity.” Moreover, the “data demands of hyperscalers' subsea cable is surging 45% to 60% per year.” Indeed, as of 2023, content and cloud networks accounted for more than 70% of all bandwidth usage.”

25. Because the Commission does not ordinarily receive updated information about changes in the ownership of licensees or the submarine cable system over the course of the 25-year license term, the Commission likely has incomplete and outdated information regarding submarine cable landing licensees with foreign ownership and the submarine cable system itself. The Commission does receive such information when an applicant/licensee (1) seeks Commission consent to the substantial transfer of control and/or assignment or modification of its existing cable landing license, (2) the licensee undergoes a
pro forma
transfer of control and/or assignment that require(s) notification to the Commission, (3) files a foreign carrier affiliation notification, or (4) files a renewal application.
40

The information obtained from substantial or
pro forma
assignment and/or transfer of control applications and foreign carrier affiliation notifications, however, is limited to that particular licensee and does not provide updated information about the other licensees. In the case of renewal applications, the information obtained is based on the end of the license term. The Commission also has authority to conduct an
ad hoc
assessment of whether a licensee's cable landing license presents national security, law enforcement, foreign policy, and/or trade policy risks that warrant revocation. Reliance on sporadic submissions of applications and
ad hoc
assessments for important information regarding this critical infrastructure, however, creates an information gap that limits the Commission's knowledge of the licensees, updated information on the cable itself, and its ability to assess any national security, law enforcement, foreign policy, and/or trade policy concerns.

40
The Commission notes that submarine cable landing licensees are required to submit annual circuit capacity data under § 43.82 of its rules.

26. The Commission tentatively concludes that the periodic reporting requirement would improve the Commission's oversight of submarine cable licenses and ensure the license continues to serve the public interest. In this regard, the Commission tentatively finds that the information the Commission would obtain from its proposed three-year periodic reporting requirement provides crucial information about submarine cables that complements the capacity information the Commission already receives from the annual § 43.82 circuit capacity reports provided by filing entities. Among other things, the Commission tentatively concludes information derived from the periodic reports such as updated contact information for licensees and cable landing stations and geographic coordinates of the cable landing stations, coupled with information from the Commission's annual circuit capacity reports, would better enable the Commission to carry out its public interest responsibilities such as assessing capacity information and conducting time-sensitive outreach to licensees during a natural disaster or in a state of emergency.
41

Importantly, the Commission believes the updated information regarding this critical infrastructure would improve consistency in the Commission's consideration of evolving public interest risks (including national security risks), completeness of the Commission's information regarding submarine cable landing licensees, and timely Commission attention to issues that warrant heightened scrutiny.

41

See
Proposed Rules, § 1.70016(b) (setting forth the contents that must be included in the proposed periodic report).

27. Additionally, the Commission tentatively concludes the periodic reporting requirement would ensure a more consistent and complete referral of relevant evolving issues to the executive branch agencies, including the Committee, for their review and ultimately, improved protection of U.S. communications infrastructure. With updated information regarding this critical infrastructure, the Commission tentatively concludes it, in coordination with the relevant executive branch agencies, could assess national security and other public interest risks and, if necessary, pursue remedial action and/or initiate a revocation or termination proceeding. As noted above, the executive branch agencies recommended that the Commission revoke certain international section 214 authorizations that posed unacceptable risks to national security and law enforcement interests of the United States. Ultimately, the Commission believes that its proposed periodic reporting requirement would meet the Commission's principal goal of providing it with updated critical information regarding licensees and the cable systems and “promote the security of the United States . . . .” in accordance with the Cable Landing License Act.

28. Accordingly, as discussed below, the Commission proposes to adopt and codify in its rules a routine condition that would require all submarine cable landing licensees to jointly or separately submit to the Commission every three years updated information about, among other things, the licensee and its ownership, points of contact for the submarine cable system, use of foreign owned Managed Network Service Providers (MNSPs), as well as cybersecurity and regulatory compliance certifications. The Commission also proposes that failure to timely submit a periodic report would constitute a breach of this condition that could warrant Commission enforcement action or revocation, the procedures of which are discussed above. The Commission tentatively concludes that the proposed reporting requirement would address the aforementioned information gap by providing the Commission with updated critical information necessary to fulfill its national security and other public interest responsibilities on a more

regular and systematic basis. The Commission seeks comment on this proposal and the impact on small entities, as well as any alternatives.

29. Under the Commission's proposed approach, the submarine cable landing license would continue in force throughout its term. To the extent circumstances in any particular situation raise national security, law enforcement, foreign policy, and/or trade policy or other concerns (for example, due to incompleteness of the periodic report or new foreign ownership), the Commission could initiate a further inquiry to assess the risks and concerns raised and coordinate with the relevant executive branch agencies that may, in turn, result in Commission enforcement action, executive branch mitigation efforts, and/or a revocation or termination proceeding. The Commission's proposed periodic reporting requirement would not supplant existing Commission authority to conduct an
ad hoc
assessment of whether a licensee's cable landing license presents public interest concerns, including national security, law enforcement, foreign policy, and/or trade policy risks nor would this proposed approach replace the 25-year license term. The Commission proposes that each periodic report would be submitted through a filing in ICFS, or any successor system, under each licensee's license file number and would not require action from the Commission,
i.e.,
a grant or confirmation. The Commission proposes that licensees with reportable foreign ownership as of thirty (30) days prior to the date of the submission or that have a mitigation agreement with the Committee or particular agencies must also file a copy of the report directly with the Committee.

30. The Commission seeks comment generally on this approach and whether a three-year period is the appropriate timeframe. The Commission proposes a three-year period because it strikes an appropriate balance between the Commission's need for current ownership, location and facilities information and the reporting burden on the Commission's licensees. The Commission can also stagger the reviews over three years, reducing the workload on the Commission and on the Committee. The Commission seeks comment on whether it should adopt a time period that is longer or shorter for purposes of assessing national security, law enforcement, and other risks. The Commission notes, however, that because the marketplace changes quickly, it believes requiring periodic information longer than three years might result in the Commission missing significant changes in ownership and changes in facilities, thus potentially endangering national security and other concerns.

31. The Commission proposes that any new report would reflect updated information since the report three-years prior or other substantive filing. If no changes have occurred since the licensee's last periodic report or other substantive filing—which may be an application for a cable landing license or modification, assignment, transfer of control, and renewal or extension of a cable landing license—should the licensee have to provide only a periodic statement that its license remains in compliance with the Commission's rules and with its most recent periodic report, or other substantive filing? How should the Commission account for a situation where the substantive filing does not require all of the same information that would be in a periodic report? Lastly, should the licensee re-certify, such as to the character qualification requirements, among other requirements?

32. The Commission seeks comment on how to properly account for multiple licensees on a submarine cable system. The Commission proposes to require joint licensees to submit one joint periodic report per submarine cable system, subject to the proposed filing contents requirements. In what the Commission expects will be the unlikely event of potential issues that may prevent a joint filing, the Commission seeks comment on whether to permit an individual licensee to file its own report. Should the Commission adopt a rule that joint licensees or consortium members must identify a lead licensee that would be required to file the periodic report on behalf of the joint licensees or consortium? How can joint licensees or consortium members provide the periodic information while remaining accountable for providing truthful, complete, and accurate information? Additionally, how can the Commission minimize burdens on licensees while balancing the Commission's policy considerations with administrative efficiency for the Commission and the relevant executive branch agencies, including the Committee? What other options should the Commission consider given evolving national security, law enforcement, foreign policy, and/or trade policy risks?

a. Prioritizing the Periodic Reporting and Other National Security and Law Enforcement Concerns

33. The Commission proposes to adopt a schedule that prioritizes the filing and review of periodic reports based on whether the cable's licensee(s) have reportable foreign ownership and the length of the time since the Commission's most recent review of the license. The proposal would structure the timing of the submission of periodic reports to minimize burdens on licensees, the Commission,
42

and the executive branch staff, while ensuring that the Commission receives the information it needs to protect this critical infrastructure. The Commission also proposes to delegate authority to OIA to establish and modify, as appropriate, the filing categories and associated deadlines, and if needed, to consult with the relevant executive branch agencies concerning prioritization of the periodic reports.

42

See Review of the Commission's Assessment and Collection of Regulatory Fees for Fiscal Year 2024 Assessment and Collection of Space and Earth Station Regulatory Fees for Fiscal Year 2024,
MD Docket Nos. 24-85 and 24-86, Second Report and Order, 89 FR 78452 (September 25, 2024), FCC-24-93, para. 45 (2024) (
2024 Regulatory Fee Second Report and Order
) (noting that “in the Office of International Affairs, there are eight Full-Time Equivalents (FTEs) within the Telecommunications and Analysis Division that work on international bearer circuit-related issues, including the services provided over submarine cables . . . .”).

34. The Commission proposes to assign each of the existing licensed cable systems to one of four categories with a different deadline for each, and with the deadlines separated by six months. The Commission proposes to require that licensees of submarine cable systems in Category 1 shall submit their initial periodic report by six months following the effective date of new rules adopted in this proceeding, and licensees of submarine cable systems in Categories 2, 3, and 4, respectively, shall submit their initial periodic reports thereafter in fixed intervals separated by six months.

•
Category 1:
Submarine cable systems that: (1) have a licensee that is directly or indirectly wholly or partially owned by a government of, or other entities with a place of organization in, a “foreign adversary” country, as defined in the Department of Commerce's rule, 15 CFR 791.4; (2) have a licensee with a place of organization in a “foreign adversary” country; or (3) land in a “foreign adversary” country.
43

43
15 CFR 7.4 (stating “[t]he Secretary has determined that the following foreign governments or foreign non-government persons have engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the

United States or security and safety of United States persons and, therefore, constitute foreign adversaries solely for the purposes of the Executive Order, this rule, and any subsequent rule” promulgated pursuant to the Executive Order);
see
15 CFR 7.2 (“Foreign adversary means any foreign government or foreign non-government person determined by the Secretary to have engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the United States or security and safety of United States persons.”).

•
Category 2:
Submarine cable systems where the Commission's most recent review of the license
44

occurred 4 or more years ago
45

and where a licensee has reportable foreign ownership.

44
The Commission refers to its review of the license to include the grant of an initial application for a cable landing license or an application for modification, substantial assignment, substantial transfer of control, or renewal or extension of a cable landing license.

45
For purposes of prioritizing the filing and review of periodic reports, the Commission refers to its most recent review of the license as its most recent action, which would include grant of an initial application for a cable landing license or an application for modification, substantial assignment, substantial transfer of control, or renewal or extension of a cable landing license and ensure that the Committee or particular executive branch agencies also reviewed the cable system for any national security, law enforcement, and other concerns.

•
Category 3:
Submarine cable systems where the Commission's most recent review of the license occurred less than 4 years ago and where a licensee has reportable foreign ownership.

•
Category 4:
All other submarine cable systems, including those where no licensee has reportable foreign ownership.

35.
FCC's Preliminary Review of Existing Licensed Submarine Cables.
Commission staff have conducted a preliminary review of its records, and based on this review, the Commission assesses that eight of the 84 licensed submarine cable systems would meet one or more of the criteria under Category 1: (1) Americas-1 Cable System, (2) Asia-America Gateway (AAG), (3) FASTER Cable System, (4) Japan-U.S. Cable Network,
46

(5) Jupiter, (6) New Cross-Pacific (NCP), (7) PPC-1, and (8) Trans-Pacific Express (TPE) Cable Network. Based on the Commission's preliminary review of the 84 licensed cables to date,
47

Category 1 would include eight submarine cable systems; Category 2 would include 21 submarine cable systems; Category 3 would include 36 submarine cable systems; and Category 4 would include 19 submarine cable systems. The full set of categories and the licensed submarine cable systems associated with each category are set forth in the table labeled “Three-Year Periodic Reporting Prioritization Schedule.” The Commission seeks comment on the results of its preliminary review.

46
On June 18, 2024, the current licensees of the Japan-U.S. Cable Network filed an application to modify the license to remove all licensees except Verizon Business Global LLC (Verizon) from the license, and request a waiver of § 1.767(h)(1) to replace AT&T Enterprises, LLC with Verizon as the licensee that controls the cable landing facilities in Makaha, Hawaii. On July 25, 2024, Verizon and Hawaiian Telcom Services Company, Inc. filed an application for a license to land and operate the California-Hawaii S1, which will consist of Segment 1 of the Japan-U.S. Cable Network. To the extent the Commission grants these applications prior to the adoption of any final Report and Order in this proceeding, the Commission proposes that it would adjust the categorization of the Japan-U.S. Cable Network accordingly in such Report and Order.

47
This number of 84 licensed cables does not include cables for which the license expired and has not been renewed or extended, including where an application is pending before the Commission to renew or extend the license.
See, e.g.,
File No. SCL-STA-20240626-00028, Actions Taken Under Cable Landing License Act, Report No. SCL-00484, DA 24-926 (OIA 2024) (granting the request for special temporary authority (STA) filed by GCI Communication Corp. to continue operation of the Alaska United East Cable System (AU-East) (SCL-LIC-19961205-00615, SCL-LIC-19980602-00008, SCL-MOD-20020409-00018, SCL-MOD-20020409-00019) while the Commission considers an application for a new cable landing license for the cable system (SCL-LIC-20240815-00036)). To the extent the Commission grants any application to renew or extend a cable landing license prior to the adoption of any final Report and Order in this proceeding, the Commission proposes that it would include or adjust the categorization of the respective cable system accordingly in such Report and Order.

36.
FCC's Review of Future Licensed Submarine Cables.
The Commission proposes to require that cable landing licensees of submarine cable systems that are licensed after the effective date of new rules shall submit their initial periodic report by a deadline of three years following the date of the grant of authority. The Commission proposes to require licensees of future licensed submarine cable systems to file the periodic reports every three years after the deadline of their initial periodic report. The Commission seeks comment on whether a cable landing licensee should file the required report every three years based on the date of such grant of authority, until and unless the Commission grants a subsequent application filed by the licensee, at which point the three-year reporting cycle would commence anew as of the date of the new grant.

37. The Commission believes these approaches would simplify the reporting requirement and minimize administrative burdens while prioritizing the Commission's consideration of those licensees that most likely raise national security, law enforcement, foreign policy, and/or trade policy concerns. Prioritizing the Commission's review in the manner described above ensures the Commission focuses on those cables that potentially raise concerns and those that have not been reviewed by the Commission and the Committee. The Commission believes this approach would accomplish its national security objectives and provide regulatory certainty to licensees. What are the benefits and potential drawbacks of this approach? Should the Commission instead follow the
Evolving Risks NPRM
proposal and factor in mitigation agreements? Why or why not? The Commission seeks comment generally on this and other approaches for periodic reporting of licensed submarine cables.

b. Shorten the 25 Year License Term

38. As an alternative to the proposed periodic reporting requirement the Commission seeks comment on whether shortening the current 25-year submarine cable license term or adopting a shorter license term in combination with periodic reporting would similarly account for evolving national security, law enforcement, and other risks. Like the Commission's proposed periodic reporting requirement, the Commission would codify either of these options as a routine condition in its rules. The Commission notes that by rule, a submarine cable landing licensee's failure to renew its license would cause the license to expire, and “[u]pon expiration, all rights granted under the license shall be terminated.”
48

48

See
47 CFR 1.767(a)(9) (requiring applicants to certify “that the applicant accepts and will abide by the routine conditions specified in paragraph (g) of this section”); 47 CFR 1.767(g)(15) (“[T]he cable landing license shall expire twenty-five (25) years from the in-service date, unless renewed or extended upon proper application. Upon expiration, all rights granted under the license shall be terminated.”).

39. Given changed circumstances since the Commission codified the 25-year license term, the Commission believes that a shortened license term or a shortened term in combination with periodic reporting, would be consonant with its public interest responsibilities under the Cable Landing License Act regarding national security. The Commission notes that the 25-year license term appears to relate to operational aspects of submarine cable systems.
49

Also, in light of the

constantly changing national security environment, 25 years is a long time period in which a license is not reviewed. Shortening the license term by itself or in combination with periodic reporting, could enable the Commission to assess—earlier than the current 25-year license term—whether a particular cable landing licensee complies with the relevant statutory and rule requirements, whether there are any rule-compliant but unreported changes in ownership or operations, or other factors that present national security, law enforcement, foreign policy and/or trade policy concerns, and whether the license continues to serve the public interest.

49
For example, according to a working group report of Communications, Security, Reliability, and Interoperability Council (CSRIC) IV, “[t]he normal planned commercial lifespan of the cables is 25 years, though they often get used for longer periods of time. Nevertheless, the commercial lifespan of submarine cable systems may extend well beyond 25 years, particular where the systems

have been upgraded or redeployed. Consistent with these characteristics, the Federal Communications Commission (`FCC') grants cable landing licenses for a term of 25 years (subject to renewal) from commencement of commercial service.” TeleGeography,
Submarine Cable Frequently Asked Questions, https://www2.telegeography.com/submarine-cable-faqs-frequently-asked-questions
(last visited Nov. 12, 2024) (“[c]ables are engineered with a minimum design life of 25 years . . .”).

40. The Commission tentatively concludes that a shortened license term or a shortened term in combination with periodic reporting would provide the Commission and the relevant executive branch agencies the ability and opportunity to assess in a more timely and systematic manner, the evolving national security, law enforcement, foreign policy, and/or trade policy risks associated with cable landing licenses.
50

The Commission seeks comment on an appropriate time frame to better account for evolving risks while minimizing burdens on licensees, recognizing the significant capital expenditures and long lead times in planning and constructing submarine cable systems. What is the current lifespan of a modern submarine cable system, and should that factor into the Commission's analysis? The Commission also seeks comment on the economic impact of shortening the 25-year license term. Would a 5-year or 10-year license term alter investment incentives in new submarine cable infrastructure? Would shortened license terms impact the upgradation and maintenance of existing submarine cable systems? The Commission notes that it has adopted various license terms for differing services. For example, wireless and broadcast licensees have renewal terms. For Miscellaneous Wireless Communications Services (WCS), the license term varies according to spectrum band, which results in different license periods such as 10, 12, or 15 years. License terms for satellites also vary. Space stations licensed under part 25 of the Commission's rules have a 15-year license term, except that small satellites have a 6-year license term and certain Satellite Digital Audio Radio Service (SDARS) and Direct Broadcast Satellite (DBS) space stations have an 8-year license term.
51

In the context of broadcast licensing, each license granted for the operation of a broadcasting station is limited to a term not to exceed eight years. In the
Evolving Risks NPRM,
the Commission tentatively concluded that a 10-year timeframe is reasonable under the proposed renewal framework for structuring a formalized and systemic reassessment of carriers' international section 214 authority.
52

50

See Executive Branch Review Report and Order,
35 FCC Rcd at 10934-35, para. 17 (discussing executive branch referral process for those applications for international section 214 authorizations and submarine cable licenses or to assign, transfer control or modify such authorizations and licenses where the applicant has reportable foreign ownership filed pursuant to §§ 1.767, 63.18, and 63.24 of the rules, 47 CFR 1.767, 63.18, and 63.24).

51
For geostationary space stations that are issued an initial license term for a period of 15 years, licensees may apply for a modification to extend the license term in increments of five years or less.

52
In the
Evolving Risks NPRM,
the Commission tentatively found that a renewal timeframe of 10 years—in conjunction with the proposal in that NPRM to require authorization holders to provide updated ownership information, cross border facilities information, and other information every three years—would ensure that the Commission and the relevant executive branch agencies can continually reassess and account for evolving national security, law enforcement, foreign policy, and/or trade policy concerns associated with international section 214 authorizations. Moreover, the Commission noted that a 10-year timeframe would minimize burdens on authorization holders and balance the Commission's policy considerations with administrative efficiency for the Commission and the relevant executive branch agencies, including the Committee.

41. Would a shortened license term similar to the terms for a broadcast or wireless license or the proposed 10-year timeframe proposed for international section 214 authorizations be appropriate, and if so, why? Would adopting a 15-year license term similar to geostationary space station licenses under part 25 be more appropriate given the large capital investment typically required to launch these satellites and deploy submarine cable systems? Would a 10- to 15-year renewal time frame, as opposed to a 25-year term, better ensure that the Commission and the relevant executive branch agencies can continually reassess and account for evolving national security and other concerns? The Commission also seeks comment on whether licensees should or could ask for different renewal terms prior to the expiration of their current license term based on their particular circumstances. What is the capital investment and lifespan of current fiber optic cable infrastructure and how should that impact the Commission's proposal? While most cable landing licensees have asked for a renewal term of 25 years, a few have asked for a shorter term.
53

Should the Commission adopt a rule reserving its discretion to impose a shorter license term on a case-by-case basis based on risk factors where the Commission deems it would be in the public interest?
54

Should a license term reset if a submarine cable landing licensee undergoes a complete review, such as during the review of a substantial assignment or transfer of control application?
55

What factors should the Commission take into consideration in its analysis of whether to shorten the submarine cable landing license term and renewal process? The Commission seeks comment on whether to adopt a renewal expectancy standard for submarine cable licenses, subject to any approval of or objection to a proposed grant of an application by the State Department. Should such a standard apply only in the event the Commission shorten the license term? Should a specific showing at renewal be required, such as certification that the licensee has been in operation consistent with their initial application

for a license?
56

Commenters should address the burdens that will be placed on the licensees based on the length of the license term and identify the costs and benefits overall and impact, if any, on small businesses.

53
File No. SCL-MOD-20190305-00007,
Actions Taken Under Cable Landing License Act,
Public Notice, Report No. SCL-00238, 34 FCC Rcd 2810 (IB 2019) (granting Hawaiian Telecom, Inc.'s application to modify the cable landing license for the Hawaiian Interisland Cable System, to extend the license term for an additional five-year period).

54
The Commission's rules expressly preserve its discretion to grant individual broadcast station licenses for less than the standard license term if the public interest, convenience, and necessity would be served by such action.
See
47 CFR 73.1020(a) (“Both radio and TV broadcasting stations will ordinarily be renewed for 8 years. However, if the FCC finds that the public interest, convenience and necessity will be served thereby, it may issue either an initial license or a renewal thereof for a lesser term.”);
id.
§ 74.15(d) (“Lower power TV and TV translator station and FM translator station licenses will ordinarily be renewed for 8 years. However, if the FCC finds that the public interest, convenience or necessity will be served, it may issue either an initial license or a renewal thereof for a lesser term. The FCC may also issue a license renewal for a shorter term if requested by the applicant.”);
1997 Broadcast License Terms Order,
62 FR 5339 (February 5, 1997), 12 FCC Rcd at 1729, 1739, n.24, Appx. A.
See also
47 U.S.C. 309(k)(2) (where applicant fails to meet the standards for renewal, the Commission may grant the application “on terms and conditions as are appropriate, including renewal for a term less than the maximum otherwise permitted.”).

55
For example, assuming the Commission were to adopt a 10-year license term, if an entity that is granted a license in 2025, so that its 10-year renewal period would be 2035, subsequently files a substantial transfer of control application which is granted in 2030, should the 10-year renewal period be reset to 2040?

56
The Commission notes that broadcast licenses must be renewed unless the Commission makes one of the findings enumerated by statute.
See also Amendment of Parts 1, 22, 24, 27, 74, 80, 90, 95, and 101 to Establish Uniform License Renewal, Discontinuance of Operation, and Geographic Partitioning and Spectrum Disaggregation Rules and Policies for Certain Wireless Radio Services,
WT Docket No. 10-112, Second Report and Order (82 FR 41530, September 1, 2017) and Further Notice of Proposed Rulemaking (82 FR 41580, September 1, 2017), 32 FCC Rcd 8874 (adopting rules that, among other things, establish a consistent standard for renewing wireless licenses).

42. The Commission tentatively affirms that, regardless of whether it adopts any new license term separately or in combination with periodic reporting, the Commission will continue to exercise its existing authority, as it deems necessary, to conduct
ad hoc
reviews of submarine cable landing licenses at any time during any license term. For instance, if the Commission were to adopt a license term of 10 years combined with periodic reporting, it might still elect to exercise its existing authority to review and, if necessary, modify or revoke or terminate licenses at any time during the 10-year license term. The Commission seeks comment on its proposed approach.

43.
Potential Rules Would Apply to All Licensees.
The Commission generally seeks comment on the application of any new license term it may adopt to all submarine cable landing licensees. In particular, the Commission seeks comment on whether all submarine cable landing licenses, regardless of issuance date, should be subject to any new license term.

44.
Licensees Whose License is Granted After the Effective Date of New Rules.
With respect to licensees whose license is granted after the effective date of any new rules adopted in this proceeding, the Commission tentatively concludes that it would apply any new license term adopted in this proceeding to such licensees. If the Commission adopts a new license term, it proposes to direct OIA to include a condition in submarine cable landing licenses granted after the effective date of any new rules requiring compliance with any new license term. The Commission seeks comment on this approach.

45.
Licensees Whose License Was or is Granted Prior to the Effective Date of New Rules.
With respect to licensees whose license was or is granted prior to the effective date of the new rules, the Commission seeks comment on whether their existing license term should remain the same, but that at the time of renewal, the Commission would apply any new license term it adopts in this proceeding. The Commission also seeks comment on whether any license granted after the issuance of the
NPRM
and before the effective date of the new rules should be subject to any shortened term the Commission may adopt in this proceeding.
57

If the Commission applies a shortened license term to existing licenses, how should it handle situations in which an existing license has been in effect for a period that exceeds the new license term?

57
The Commission notes that applicants seeking licenses after issuance of the
NPRM
will be aware of the possibility that the Commission may adopt a shortened license term and that any new license term may be a condition of grant of their application.

46.
Other Matters.
The Commission seeks comment on whether to apply any shortened license term as a condition of granting an application for a substantial and/or
pro forma
assignment or transfer of control of an existing submarine cable landing license. The Commission also seeks comment on whether cable landing licensees that have a pending renewal application prior to the effective date of any shortened license term should be subject to any new license term the Commission might adopt.

47.
Due Process and Retroactivity.
The Commission seeks comment on due process and retroactivity concerns—including “primary” versus “secondary” retroactivity—that may arise from modifying existing licenses to conform the license term with any shorter term that may be adopted in final rules or from applying a new, shorter license term as a condition of granting applications for modification, assignment, transfer of control, and renewal or extension of existing licenses.
58

58

See, e.g., Mobile Relay Assocs.
v.
FCC,
457 F.3d 1, 11 (D.C. Cir. 2006) (non-renewal resulting from a new regulatory framework may “upset[ ] expectations based on prior law,” but that is not primarily retroactive).

48. The courts have established a distinction for rules between “primary” retroactivity and “secondary” retroactivity. A rule is primarily retroactive if it (1) “increase[s] a party's liability for past conduct”; (2) “impair[s] rights a party possessed when he acted”; or (3) “impose[s] new duties with respect to transactions already completed.” The standard for primary retroactivity assesses whether a rule has changed the past legal consequences of past actions. In contrast, a rule would be “secondarily” retroactive if it “affects a regulated entity's investment made in reliance on the regulatory status quo before the rule's promulgation.” Secondary retroactivity will be upheld “if it is reasonable.”

49. The Commission tentatively concludes that any shorter license term it ultimately adopts would not be “primarily” retroactive, as the mere adoption of such a requirement would not make past conduct unlawful, alter rights the licensee had at the time when it acted, or impose new duties with respect to completed transactions.

50. The Commission recognizes, however, that such a requirement could upset the expectations of existing submarine cable landing licensees. To the extent that applying any new license term may constitute “secondary” retroactivity, the Commission seeks comment on any impact of applying a new license term to existing licensees. How would such an impact compare to the benefits of applying a shortened license term to existing submarine cable landing licenses, including those granted before the issuance of the
NPRM,
such as providing for a more timely, systematic, and uniform review process that will enable the Commission to consider pertinent issues, including national security, law enforcement, foreign policy, and/or trade policy concerns, in the context of a renewal application without waiting for current licenses to expire, potentially decades from now? The Commission also seeks comment on whether and under what circumstances denial of a submarine cable landing license renewal application or an application for assignment/transfer of control would trigger primary or secondary retroactivity concerns. For example, if the Commission adopts a shorter license term and applies it to existing licensees, would non-renewal of a submarine cable landing license based on evolving national security, law enforcement, foreign policy, and/or trade policy risks, regardless of that submarine cable landing licensee's prior compliance with the Commission's rules, have primary or secondary retroactive effect? Additionally, would the application of a new license term to existing cable landing licensees require different standards or procedures based on retroactivity, reliance interests, or fair notice concerns? How would application of a new license term to existing licensees affect those licensees' operations, financial position, or investment incentives?

B. Updated Application Requirements for National Security and Other Purposes

51. In this section, the Commission proposes and seeks comment on appropriate applicant and application requirements to account for the evolution of technologies and facilities and changes in the national security landscape over the last two decades. The Commission's goal is to update and improve its rules to ensure it has targeted and granular information regarding the ownership, control, use of a submarine cable system, and other things, which are critical to the Commission's review to assess potential national security risks and other important public interest factors.

1. Requirements To Be an Applicant/Licensee

52. The Commission seeks comment on modernizing its existing rules setting forth minimum applicant/licensee eligibility requirements to ensure that the Commission identifies and captures information on those entities that own and control the submarine cable system and connect with terrestrial networks in the United States.
59

Currently, § 1.767(h) of the Commission's rules identifies the following as those entities that, at a minimum, shall be applicants for and licensees on a cable landing license: (1) “[a]ny entity that owns or controls a cable landing station in the United States[,]”and (2) “[a]ll other entities owning or controlling a five percent (5%) or greater interest in the cable system and using the U.S. points of the cable system.”
60

The Commission seeks comment generally on an appropriate rule that would capture who should be an applicant/licensee on a cable landing license under the Cable Landing License Act today and in the future to ensure the Commission meets its public interest responsibilities.

59
The Commission has reserved the ability to expand the minimum requirements as to who must apply for and become a licensee on a cable landing license. 47 CFR 1.767(h) (“Except as otherwise required by the Commission, the following entities, at a minimum, shall be applicants for, and licensees on, a cable landing license . . . .”). Although the Commission prescribes the minimum requirements concerning who must be an applicant for and licensee on a cable landing license, this does not foreclose entities that do not meet the minimum requirements from applying to be joint applicants for and licensees on a cable landing license.

60
The Commission has reserved the ability to expand the types of entities who must be applicants and licensees on a cable landing license. Section 1.767(h) (stating that “Except as otherwise required by the Commission . . . .”). Thus, other entities are not foreclosed from applying to be a joint applicant and licensee.

53.
Entities that Own or Control a U.S. Landing Station or Submarine Line Terminal Equipment (SLTE).
The Commission seeks comment on whether to require not only entities that own or control the U.S. cable landing station, but also entities that own or control the SLTE or equivalent equipment to be applicants for and licensees on a cable landing license. The SLTE is among the most important equipment associated with the submarine cable system and this modification to the Commission's rule would enable it to know and assess any national security and law enforcement concerns related to the entities that will deploy SLTE and thus who can significantly affect the cable system's operations. Specifically, the Commission seeks comment on whether to expand the applicant/licensee requirement to include any entity that owns or controls or operates a cable landing station(s) or the SLTE or equivalent that converts submarine signals into terrestrial signals located in the U.S. portion of a cable system. The Commission believes that including the term “submarine line terminal equipment” and a general description of the functionality of the equipment would better reflect technological advances in submarine cable systems. Would this be consistent with the statutory requirement that “[n]o person shall land or operate . . . any submarine cable” without a license as specified in the Cable Landing License Act? Moreover, the Commission believes that including such language would capture the potential of a submarine cable system to have more than one cable landing station or a cable landing station that includes multiple SLTEs that could be located farther inland such as in another facility (
e.g.,
a data center). A proposed cable system could also have multiple locations where SLTE is deployed. The Commission seeks comment on whether and if so, how, to incorporate entities with ownership and control of SLTE into the Commission's regulatory framework. Lastly, the Commission seeks comment on how this potential change could impact existing entities, including small business entities, that were not previously required to obtain a cable landing license but now would be required to do so because they own or control SLTE. Should the Commission apply any new requirement to such existing entities and if so, when should it require such existing entities to submit applications? The Commission seeks comment on the burdens this potential change could have on such existing entities, as well as existing licensees, which may include small entities, including how long it would take them to comply with this potential requirement.

54. This option would require any entity with ownership or control of a cable landing station or SLTE or equivalent equipment to be applicants/licensees for a submarine cable landing license. Under this option, Indefeasible Right of Use (IRU)
61

holders or grantees likely meet these requirements. As background, companies that own and operate submarine cable systems may choose to use the capacity on their submarine cable systems themselves or seek to lease, sell, or swap unused or unowned capacity to recoup their investment in the submarine cable project. Internet Content Providers (ICPs) that are licensees may use the capacity themselves to connect to their data centers abroad to serve customers globally. Alternatively, they may choose to sell, lease, or swap capacity of the submarine cable fiber to telecommunications companies or other entities in need of capacity along a certain route, such as research institutions, education institutions, governments, banks, and enterprises, among others.

61

See also
Katie Terrell Hanna, TechTarget,
Definition: Indefeasible Right of Use (IRU)
(March 2022),
https://www.techtarget.com/searchunifiedcommunications/definition/Indefeasible-Right-of-Use
(“In telecommunications, the Indefeasible Right of Use (IRU) is a contractual agreement (temporary ownership) of a portion of the capacity of an international cable. As the name suggests, the contract provides an indefeasible right to use a cable and cannot be annulled or voided. IRU contracts are specified in terms of a certain number of channels of a given bandwidth.”) (
IRU Definition
);
id.
(“Large-scale internet service providers (ISPs) are typical IRU owners. This gives ISPs the ability to assure their own customers of international telecom service on a long-term basis. IRU fibers are also referred to as dark fibers. Here, dark fiber means fiber between two locations that has no electronics attached to it. This needs to be lit by the IRU grantee rather than the cable provider.”).

55. Although IRUs can be short-term, they more typically constitute long-term contracts of 20 years or longer and provide a holder or grantee with a certain amount of bandwidth of capacity or fiber on a submarine cable system.
62

These contracts provide holders or grantees with the rights to use the capacity, which includes equipment, fibers, or capacity, and may constitute assets as well, even though legal title is held by the grantor.
63

Holders or

grantees of these rights may further lease out capacity to other companies that need only a portion of the holder's capacity. The contracts to lease unused or unowned capacity typically constitute short-term contracts of five years or may be shorter or longer and, unlike IRUs, generally do not require an upfront payment. However, these lease contracts do typically require monthly payments during the course of the lease term and provide a grantee with a certain amount of bandwidth of capacity or spectrum of a fiber on a submarine cable system. Importantly, as noted above, some IRU holders or grantees, such as dark fiber IRU holders, may own, control, and use specific SLTE at the ends of the cable system to interconnect with their terrestrial networks,
64

and such SLTE could be physically or logically accessed by IRU holders or grantees, thus potentially raising national security and law enforcement concerns arising from the Commission's lack of information about and regulatory oversight of these relationships and the ownership of the IRU holder or grantee.

62

Understanding IRU Fiber: A Comprehensive Guide,
123NET (Mar. 15, 2024),
https://www.123.net/blog/understanding-iru-fiber-a-comprehensive-guide/
(“An Indefeasible Right of Use (IRU) agreement is a legal contract that grants the buyer a permanent right to use a portion of a fiber-optic cable's capacity for a set period.”).

63
Fernando Margarit
et al., IRUS AND FIBER OPTIC CABLES: An Overview and Examination of Associated Risks,
Submarine Telecoms Forum,

https://subtelforum.com/telecom-indefeasible-rights-of-use/
(last visited Aug. 11, 2024) (“These critical instruments grant exclusive, long-term rights to use specific assets, such as fiber cables, closely mirroring actual ownership without the transfer of legal title.”).

64

Open Submarine Cables Handbook
at 4 (“Apart from increased competition for the SLTE supply and deployment of the latest SLTE technology, the open cable model is also more adapted to new business models by providing multiple system owners more independence. Many recent new cables have been built with a per-fiber pair ownership model allowing multiple cable systems owners to use different SLTE (including management systems) on their own fiber pairs. Spectrum sharing within a fiber pair can also be supported. Lastly, when the different owners want to upgrade, they can do so independently from the other owners.”).

56. Would requiring entities with ownership or control of a cable landing station or SLTE to be applicants/licensees for a submarine cable landing license appropriately address national security and law enforcement concerns regarding physical and/or logical access? Would this be consistent with the statutory requirement that “[n]o person shall land or operate . . . any a submarine cable” without a license as specified in the Cable Landing License Act? Does the Commission's legal authority to withhold or grant a cable landing license
65

extend to authorizing such purchases or sales of capacity? Would this be consistent with the statutory requirement to obtain a license to “land or operate . . . any submarine cable”? If the Commission requires such entities that meet this requirement to become applicants/licensees for a submarine cable landing license, how should this requirement be implemented as to such existing entities as well as existing licensees? The Commission seeks comment on the burdens this potential change could have on affected entities, including small entities, and to identify how long it would take them to comply with this potential requirement.

65
47 U.S.C. 35.

57. The Commission notes that with respect to the entities that own or control the cable landing stations, it frequently receives waiver requests from entities, such as data center owners, that do not seek to become an applicant or licensee. These entities state that they own the real property/facility in which the cable landing station is located but do not have any ability to significantly affect the cable system's operation.
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The Commission has granted such waiver requests, based on its review of the particular circumstances raised in each waiver request and done so in coordination with the Committee, as necessary.
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The Commission seeks comment generally on the applicability of its rules to data center owners, including the access they have over submarine cables and the site operations, such as physical security, power, backup power, HVAC, and other environmental support essential to proper operations of cable landing systems housed in their facilities.

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The Commission has seen instances where a submarine cable system will land in an internet exchange, PoP, data center, or a like facility that is owned by a company that leases colocation space and services to submarine cable owners and operators but does not have any ability to significantly affect the cable system's operation.

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See e.g.,
File No. SCL-LIC-20210329-00020,
Actions Taken Under Cable Landing License Act,
Public Notice, Report No. SCL-00353, DA 22064 (IB 2022) (granting the applicants' request for a waiver of 47 CFR 1.767(h)(1)).

58.
Own or Control a 5% or Greater Interest in the Cable System and Using the U.S. Points of the Cable System.
The Commission seeks comment on whether it should retain the requirement that an entity that owns or controls a 5% or greater interest in the cable and uses the U.S. points of the cable system shall be an applicant for and licensee on a cable landing license. Prior to the rules adopted in 2001, there was no exception for those entities that owned less than a 5% interest in the cable. In the
2001 Cable Report and Order,
the Commission recognized that “the greater a firm's investment in a cable system, the greater ability the firm has to influence the way in which a cable is operated . . . [and] observed that entities with minimal investment in a cable system, on the other hand, do not have the same ability to affect the operation of the c

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2025-03718. Public record. Not legal advice.