Attachment DA 95-2393.pdf

DA 95-2393.pdf

ORDER submitted by FCC

DA 95-2393

1995-12-01

This document pretains to ITC-214-19950227-00008 for International Global Resale Authority on a International Telecommunications filing.

IBFS_ITC2141995022700008_890645

11 F.C.C.R. 2529, 11 FCC Rcd. 2529, 1995 WL 707794 (F.C.C.) Page 1 2. On February 21, 1995, IDB filed the captioned application pursuant to Section 214 of the Commu- 11 F.C.C.R. 2529, 11 FCC Rcd. 2529, 1995 WL [FN1] nications Act of 1934, as amended, and Sec- 707794 (F.C.C.) [FN2] tion 63.01 of the Commission's Rules. IDB Federal Communications Commission (F.C.C.) requests authority to provide switched services via international private lines between the United Memorandum Opinion, Order and Authorization States and the United Kingdom that are intercon- IN THE MATTER OF IDB WORLDCOM SER- nected either to the U.S. public switched network VICES, INC. (“PSN”) or to the U.K. PSN or to both. On March 7, 1995, we placed IDB's application on public no- File No. [FN3] tice. AT&T Corp. (AT&T) filed comments, I and IDB filed reply comments. - T 3. IDB proposes to use its authorized U.S. private - line half-circuits in transatlantic cable systems in C which it or its commonly-owned companies own - capacity. Such circuits include capacity in TAT-8, 95 TAT-9, TAT-10, and PTAT-1. Also, IDB proposes - to use satellite circuits, including circuits between 197 U.S. earth stations and INTELSAT Atlantic Ocean Region (“AOR”) satellites, which IDB will obtain Application for Authority pursuant to Section 214 under tariff from COMSAT. IDB will connect its of the Communications Act of 1934, as amended, to international half-circuits with half-circuits Provide Switched Services via International Private provided by entities that are authorized in the Lines Interconnected to the Public Switched Net- United Kingdom. The circuits will be interconnec- works in the United States and the United Kingdom ted to the PSN in either the United States or the United Kingdom or in both. DA 95-2393 4. IDB states that it has filed the instant application Adopted: November 27, 1995 as a precaution if the Commission determines that Released: December 1, 1995 the proposed service constitutes private line resale as defined in the Commission's International Re- [FN4] *2529 By the Chief, Telecommunications Division: sale Order. If the Commission concludes that IDB's proposed service is not within the ambit of I. INTRODUCTION the International Resale Order, IDB proposes to withdraw its application as an unnecessary filing. 1. In this order, we grant IDB WorldCom Services, Inc. (IDB) Section 214 authority to provide 5. In support of its application, IDB states that, in switched services via its U.S. international private the International Resale Order, the Commission line facilities between the United States and the found that the public interest is served by authoriz- United Kingdom. ing the provision of international switched services over private line facilities to those countries that II. BACKGROUND provide resale opportunities equivalent to those af- [FN5] forded by the United States. IDB notes that © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

11 F.C.C.R. 2529, 11 FCC Rcd. 2529, 1995 WL 707794 (F.C.C.) Page 2 the Commission has found the United Kingdom “WorldCall” service in the United Kingdom (and in equivalent to the United States in international Germany) via international private lines intercon- private line resale opportunities for U.S.-based car- nected to the U.S. PSN in violation of *2530 the In- [FN8] riers. IDB also notes that the Commission recently ternational Resale Order. According to granted applications requesting authority to provide AT&T, WorldCall calls are routed via dedicated fa- international resale between the United States and cilities to IDB nodes in the United Kingdom (and in [FN6] the United Kingdom. IDB states that the Germany and possibly other countries) and then to Commission granted those applications subject to the United States via international private lines the condition that the United Kingdom designate which are interconnected to the U.S. PSN. AT&T the United States as an equivalent country. IDB contends that the Commission, in January 1993, states that the United Kingdom has designated the found that IDB had violated the International Re- [FN9] United States as an equivalent country and that sale Order and instructed IDB to bring its ac- granting its application will allow it to continue to tions into compliance with that order. AT&T al- participate and compete on the U.S.-U.K. route, leges that IDB does not seek Section 214 authority which it is currently serving. for Germany because IDB knows that the Commis- sion could not find that Germany offers equivalent 6. AT&T does not oppose IDB's application. AT&T resale opportunities. AT&T contends that IDB's un- requests, however, that the Commission impose authorized provision of U.K.-U.S. (as well as Ger- three requirements on IDB. First, AT&T requests many-U.S.) switched services via international the Commission to impose a retroactive reporting private lines connected to the U.S. PSN has injured requirement of switched minutes that IDB has U.S. carriers and their customers. That is, to the ex- transported between the United Kingdom or other tent IDB provided one-way completion of switched foreign markets and the United States via interna- minutes from the United Kingdom to the United tional private lines connected to the U.S. PSN since States outside the settlements process, U.S. net set- December 23, 1991, to the present. To the extent tlements paid by U.S. carriers and their customers that traffic from markets other than the United to U.K. carriers increased and harmed U.S. carriers Kingdom has been transported over the private [FN10] and their customers. lines, the volumes by market should be reported separately. Second, AT&T requests that we impose 8. In reply, IDB emphasizes that AT&T does not a certification requirement on IDB as a pre- oppose IDB's application but merely requests the condition to its Section 214 authorization. The cer- Commission to impose reporting requirements on [FN11] tification would require IDB to state that it will no IDB. IDB states that the Commission should longer participate in the provision of switched ser- dismiss such requests. IDB claims that AT&T is re- vices into the United States over international litigating its pending formal complaint against IDB private lines from any country for which it has not and two IDB affiliates for alleged violations of the received the Section 214 authority required by the Commission's international private line resale International Resale Order. Third, AT&T requests policy. IDB suggests that AT&T admits that the that the Commission impose a quarterly certifica- purpose of the reporting requirement is not to serve tion process to ensure IDB's compliance with con- the public interest but to assist AT&T in prosecut- ditions placed in its Section 214 authorization, in- ing its complaint. IDB disagrees with AT&T's cluding the U.S.-U.K. traffic limitation on the use statement that the international private line resale [FN7] of the private line arrangements. policy is settled law. In support, IDB notes that the Commission has asked for comment on issues in- 7. AT&T asserts that, from 1991 to the present, volving international private line resale in its No- IDB and its affiliates have been offering tice of Proposed Rulemaking in Market Entry and © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

11 F.C.C.R. 2529, 11 FCC Rcd. 2529, 1995 WL 707794 (F.C.C.) Page 3 [FN12] [FN17] Regulation of Foreign-affiliated Entities. applicants. Moreover, AT&T neither re- IDB states that the requested Section 214 authority quests us to deny IDB's application nor asserts that is for additional service authority. IDB further grant of IDB's application would be contrary to the states that numerous U.S. carriers, including public interest. AT&T, have received the exact same authority that IDB seeks. Once the application is granted, IDB 12. We find that grant of the application will allow claims that it will have the authority to introduce IDB to become a more effective competitor in the new service offerings that AT&T and other U.S. provision of switched services. Use of its U.S. in- carriers are now authorized to provide. ternational private lines to provide switched ser- vices should foster lower prices, innovative ser- III. DISCUSSION vices and increased responsiveness to consumer needs on the U.S.-U.K. route. Therefore, the re- 9. Resale is “an activity wherein one entity sub- maining issue to decide is whether to impose scribes to the communications services and facilit- AT&T's proposed reporting and certification condi- ies of another entity and then reoffers communica- tions on IDB's Section 214 authorization. tions services and facilities to the public (with or [FN13] without ‘adding value’) for profit.” Because 13. We see no reason in the record before us to im- IDB will use its own U.S. international private lines pose AT&T's special conditions on IDB's Section to provide switched services between the United 214 authorization. These proposed conditions are States and the United Kingdom, by definition, IDB based on AT&T's assumption that IDB has violated will not be reselling private line service. the Commission's International Resale Order by providing switched services over international 10. IDB's application, however, still falls within the private lines without proper Section 214 authoriza- scope of the International Resale Order. We inter- tion. The issue whether IDB has violated our Inter- pret this Order to require that, whenever a carrier national Resale Order is properly resolved as an seeks to reroute switched traffic over private lines enforcement matter in the pending formal com- interconnected to the PSN at either end, that carrier [FN18] plaint rather than in a Section 214 proceed- must seek separate Section 214 authorization. ing. Moreover, the Commission is considering in [FN14] To obtain Commission authorization, an ap- the Foreign Carrier Entry proceeding whether to plicant must demonstrate that the destination coun- codify the requirement that carriers seeking to con- try affords resale opportunities equivalent to those nect a U.S. private line half-circuit with a leased available under U.S. law. This equivalency require- foreign private line half-circuit to provide a ment is designed to protect the U.S. public interest switched, basic service, must obtain specific Sec- against the detrimental effects of one-way diversion [FN19] tion 214 authority to do so. We expect that of switched traffic on U.S. net settlement payments. the Commission's order in that proceeding will re- [FN15] Here, IDB proposes to reroute switched solve the issue AT&T raises here on a prospective traffic over an international private line connected basis. At the conclusion of that proceeding or the at one or both ends to the PSN in the United States enforcement proceeding initiated by the filing of and/or the United Kingdom. Therefore, IDB must AT&T's formal complaint against IDB, we will obtain a separate Section 214 authorization to have ample opportunity to determine whether fur- provide the proposed service. ther oversight of IDB's activities is warranted. Ad- ditionally, as a result of the Commission's findings 11. The Commission has concluded previously that in either the enforcement or the rulemaking pro- the United Kingdom provides equivalent resale op- [FN16] ceeding, it may be appropriate to require IDB to portunities. And, the Commission has gran- submit the information that AT&T requests pursu- ted the authority IDB requests to similarly situated © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

11 F.C.C.R. 2529, 11 FCC Rcd. 2529, 1995 WL 707794 (F.C.C.) Page 4 ant to our general authority under Section 218. 19. IT IS FURTHER ORDERED that IDB shall [FN20] For these reasons, we deny AT&T's request comply with Section 203 of the Communications to impose the special reporting and certification re- Act, 47 U.S.C. § 203, Part 61, and Sections 43.51 quirements on IDB. and 43.61 of the Commission's Rules, 47 C.F.R. Part 61, and §§ 43.51 and 43.61. 14. Thus, we grant IDB's Section 214 application authorizing IDB to provide switched services 20. IT IS FURTHER ORDERED that IDB shall between the United States and United Kingdom via comply with any current and future Commission its international private lines that are interconnected policies and requirements concerning international either to the U.S. PSN or the U.K. PSN or to both. accounting and settlement rates and shall file copies with the Commission of any operating agreements IV. ORDERING CLAUSES which it enters into with its foreign correspondents within thirty days of their execution. 15. Upon consideration of the above-captioned ap- plication, IT IS HEREBY CERTIFIED that the 21. IT IS FURTHER ORDERED that grant of these present and future public convenience and necessity authorizations is conditioned upon the United King- require the provision by IDB of switched services dom's continuing to afford resale opportunities between the United States and the United Kingdom equivalent to those afforded under U.S. law. via international private lines interconnected to the public switched networks at either or both ends. 22. This Order is issued under Section 0.261 of the Commission's Rules, 47 C.F.R. § 0.261 (1994) and 16. Accordingly, IT IS ORDERED that application is effective upon adoption. Petitions for reconsider- File No. I-T-C-95-197 IS GRANTED. ation under Section 1.106, 47 C.F.R. § 1.106 (1994) , or applications for review under Section 1.115, 47 17. IT IS FURTHER ORDERED that the authority C.F.R. § 1.115 (1994), may be filed within thirty granted herein for the provision of switched ser- days of the public notice of this Order (see Section vices via international private lines between the 1.4(b)(2), 47 C.F.R. § 1.4(b)(2) (1994). United States and the United Kingdom is limited to the provision of such services between the United FEDERAL COMMUNICATIONS COMMISSION States and the United Kingdom only -- that is, traffic that originates in the United States and ter- Diane J. Cornell minates in the United Kingdom or traffic that ori- Chief ginates in the United Kingdom and terminates in Telecommunications Division the United States. International Bureau 18. IT IS FURTHER ORDERED that neither IDB FN1. 47 U.S.C. § 214 (1995). nor any persons or companies directly or indirectly controlling it or controlled by it, or under direct or FN2. 47 C.F.R. § 63.01 (1994). indirect common control with it, shall acquire or FN3. See Report No. I-8020. enjoy any right, for the purposes of handling or in- terchanging traffic to or from the United States, its FN4. Regulation of International Accounting Rates, territories or possessions which is denied to any CC Docket No. 90-337, Phase II, First Report and other U.S. carrier by reason of any concession, con- Order, 7 FCC Rcd 559 (1991) (International Resale tract, understanding, or working arrangement to Order), modified in part on recon., 7 FCC Rcd which IDB or any such persons or companies con- 7927 (1992), petition for reconsideration/clarifica- trolling or controlled by IDB are parties. tion pending. © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

11 F.C.C.R. 2529, 11 FCC Rcd. 2529, 1995 WL 707794 (F.C.C.) Page 5 FN5. Application at 1. FCC Rcd 6240 (1994). FN6. Id. at 1-2 (citing ACC Global and Alanna, FN17. See AT&T Resale Order and MCI Resale Inc., 9 FCC Rcd 6240 (1994)). Order, supra note 14. FN7. AT&T Comments at 1-2. FN18. See supra note 8. FN8. Id. at 2 (referencing AT&T v. World Commu- FN19. See supra note 12. nications, Inc., et al., File No. E-93-103, filed Sept. 24, 1993). IDB, a Delaware corporation, is affili- FN20. 47 U.S.C. § 218 (1995). ated with WorldCom International, Inc. in the 11 F.C.C.R. 2529, 11 FCC Rcd. 2529, 1995 WL United Kingdom and WorldCom GmbH in Ger- 707794 (F.C.C.) many. See Application of IDB at 4 (Application). END OF DOCUMENT FN9. Id. at 4 (citing World Communications, Inc., Order and Notice of Apparent Liability for Forfeit- ures, 8 FCC Rcd 755 (1993)). FN10. Id. at 3. FN11. Response of IDB at 1. FN12. See Market Entry and Regulation of For- eign-affiliated Entities, Notice of Proposed Rule- making, IB Docket No. 95-22, 10 FCC Rcd 4844 (1995) (Foreign Carrier Entry Notice). FN13. International Resale Order, 7 FCC Rcd at 565 n.7 (citing Regulatory Policies Concerning Re- sale and Shared Use of Common Carrier Services and Facilities, 60 FCC 2d 261, 271 (1976), recon., 62 FCC 2d 588 (1977), aff'd sub nom. American Telephone and Telegraph Company v. FCC, 572 F.2d 17 (2d Cir.), cert. denied, 439 U.S. 875 (1978) ). FN14. See American Telephone and Telegraph Company, Memorandum Opinion, Order and Au- thorization, 10 FCC Rcd 3201 (1995), app. for re- view pending (AT&T Resale Order). See also MCI Telecommunications Corporation, Memorandum Opinion, Order and Authorization, 10 FCC Rcd 3187 (1995) (MCI Resale Order). FN15. International Resale Order, 7 FCC Rcd at 560-61. FN16. See ACC Global Corp. and Alanna Inc., 9 © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.


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Document Modified: 2011-05-25 12:49:59
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