IMPACT OF NATIONAL SECURITY REVIEW ON SUBMARINE CABLES LANDING IN - - PowerPoint PPT Presentation

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IMPACT OF NATIONAL SECURITY REVIEW ON SUBMARINE CABLES LANDING IN THE UNITED STATES LANDING IN THE UNITED STATES

Andrew D. Lipman

Bingham McCutchen LLP

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Presenter Profile

Andrew Lipman is the practice leader of Bingham McCutchen’s Telecommunications, Media and Technology Group and has over 30 years experience in fields of domestic and international telecommunications law, international telecommunications law, policy and strategy. Andy was a founder and senior legal and regulatory VP for MFS Communications, and helped guide the company from start-up to its eventual sale for $14.4 billion to WorldCom. Andrew D. Lipman Partner Email: andrew.lipman@bingham.com Tel: (+1) 202.373.6000

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U.S. Cable Requires Multiple Authorizations

• Environmental, Rights of Way and Building

Permits from Local and State Authorities

• License from Federal Communications

Commission (FCC)

• FCC reviews applications and issues licenses pursuant

to authority delegated from President of the United States

• FCC required to get State Department approval before

issuing license

• Other Executive Branch agencies (“Team Telecom”)

seek to exert influence on licensing process to protect national security and address law enforcement concerns

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Application requirements

• Description of cable including capacity

FCC Licensing Process

• Description of cable including capacity
• Description and geographic coordinates of

route and US and foreign cable landings

• Election of common or non-common carrier

status

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• Common carrier cables subject to FCC non-

discrimination and reasonableness obligations

• FCC may require common carrier status if cable

route is not sufficiently competitive

FCC Licensing Process (cont.)

route is not sufficiently competitive

• Ownership information
• Application fee: $16,820

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• Required licensees/co-licensees
• Any entity that owns/controls a U.S. landing station
• Any entity with a 5% or greater interest in the system

FCC Licensing Process (cont.)

(but only if it will use the U.S segments)

• Licensees must list all of their 10% or greater

direct and indirect owners

• All original owners of system must be named in

application but are not licensees unless they meet the above criteria

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• FCC automatically sends applications with 10%
• r more foreign investment to Executive Branch

and will not approve until they resolve national security issues

Team Telecom Review

security issues

• Includes applications for new licenses and transfers
• f existing licenses

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• “Team Telecom,” a subset of the Committee on

Foreign Investment in the United States (CFIUS), takes lead on behalf of Executive Branch on foreign investment in communications transactions

Team Telecom Review (cont.)

foreign investment in communications transactions

• Members: Defense, Homeland Security, Justice/FBI
• Focus is on improving national security –

foreign ownership often merely a hook for extracting concessions desired of all carriers

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• File letter with FCC requesting deferral of action
• n applications involving foreign ownership
• Send letter to applicant requesting additional

information related to network control, access to key data and sensitive equipment, equipment and

Team Telecom Modus Operandi

key data and sensitive equipment, equipment and facilities used

• Seek private voluntary commitments, and if

significant concerns, require public Network Security Agreement that is incorporated by the FCC as a condition to the license grant

• No deadline for review

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• Focuses on physical and logical security of

network and information

• Terms may vary depending on foreign points and

entities involved

Network Security Agreements

entities involved

• NSA involving TPE was more extensive than

most

• Typical requirements may include:
• A NOC established within the US that is operated by

Screened Personnel

• Maintain ability to interrupt traffic to and from the

United States

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• NOC has ability to view status of entire system
• List of equipment used in system and maintenance

and security contracts provided to DHS

• Changes to principal list of equipment requires 15 day

Network Security Agreements (cont.)

advance notice unless emergency

• Domestic communications infrastructure in US and

under control of US-based personnel

• Transactional data, subscriber information, billing

records to be stored in US

• Restricted access to domestic network and data by

foreign persons and prohibition on disclosure of domestic communications and data to foreign persons

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• Obligation to cooperate with US Law Enforcement

Agencies

• Implementation of personnel screening procedures
• Configuration of network to enable interception by

Network Security Agreements (cont.)

• Configuration of network to enable interception by

USG

• Annual reporting and USG inspection and audit

rights

• Insulate government contracting business and

sensitive networks/equipment from foreign control and influence

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• Engage Team Telecom early
• Seek Special Temporary Authority to

commence construction of system while

Strategies for Dealing with Team Telecom

commence construction of system while negotiating with Team Telecom

• Understand what network and contract issues

may present biggest hurdles

• USG contracting/defense work a big issue

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• Be prepared to offer substantial and meaningful

concessions

• Anticipate and promptly address agency

Strategies for Dealing with Team Telecom (cont.)

• Anticipate and promptly address agency

concerns

2010

enabling the next generation of networks & services

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Pacifico Convention Plaza Yokohama & InterContinental The Grand Yokohama 11 ~ 14 May 2010 www.suboptic.org The 7th International Conference & Convention

• n Undersea Telecommunications