By Public Notice released March 4, the Federal Communications Commission’s (“Commission” or “FCC”) International Bureau (“Bureau”) reminded filers that the annual Section 43.62 International Circuit Capacity Report (“International Capacity Report”) will be due by the traditional date of March 31. (Last year, due to the timing of the new manual and implementation of the filing portal, the deadline was delayed one month on a one-time basis.) The Public Notice identified some updates to the Section 43.62 filing manual (“43.62 Manual”) clarifying certain reporting requirements. Most updates were ministerial but one is of more significance for properly completing the Circuit Capacity Report requirement. Accordingly, entities subject to the international Circuit Capacity Reporting requirement should carefully review the revised filing manual to determine the scope of their reporting obligations.
As discussed in prior posts, one outcome of the FCC’s comprehensive review and revision of the international circuit capacity and international traffic and revenue reporting requirements in 2013 was a revamp of the International Capacity Reporting requirements and filing manual. Entities holding FCC submarine cable landing licenses and common carriers holding capacity on the U.S. end of at least one international submarine cable were defined as “Capacity Holders” and were required to report available capacity they held on the U.S. end of each submarine cable between the U.S. and a foreign point. Capacity Holders can hold capacity by direct cable ownership, but also by an indefeasible right of use (“IRU”) or by an Inter-Carrier Lease (“ICL”) obtained from other Capacity Holders on the U.S. end of an international submarine cable.
The Bureau’s clarification last week to the 43.62 Manual directs filers to report data based on IRUs and ICLs obtained from “Similar Entities” in addition to the exiting requirement to report IRUs and ICLs obtained from other Capacity Holders. Similar Entities are defined as (i) foreign carriers holding capacity on the U.S. end of an international submarine cable but not having a submarine cable license or international 214 authorization and (ii) persons or entities licensed by a foreign government to operate or own capacity on the foreign end of a U.S. submarine cable or on a non-U.S. submarine cable.
Among other ministerial edits, the Bureau also revises the definition of IRU, limiting it to arrangements where an upfront payment has been made for the lease and deleting reference in the old definition to the IRU conferring the “vestiges of ownership.” While this revised definition may reflect actual real world business arrangements, filers should consider whether their IRUs or other capacity arrangement, even if not named “IRUs” are structured in a manner that falls within the definition in the revised 43.62 Manual before completing their reports.
Finally, as we noted previously, another outcome of the Commission’s modernization of the reporting process has been the establishment of an online filing portal and a mandatory online filing requirement. While the FCC’s rules, under both current rule 43.62 and prior rule 43.82, establish a March 31 filing deadline last year’s report deadline was extended to April 30, 2015 due to difficulties implementing the filing portal. We advised last year that we anticipated the filing date would return to its normal schedule this year and the FCC’s announcement confirms the reporting schedule has returned to normal.