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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) PHILIPPINE LONG DISTANCE ) TELEPHONE COMPANY, ) Complainant, ) ) v. ) File No. E-95-33 ) USA GLOBAL LINK, INC., ) Defendant. ) MEMORANDUM OPINION AND ORDER ON REVIEW Adopted: March 22, 2000; Released: March 29, 2000 By the Commission: Commissioner Furchtgott-Roth issuing a separate statement. I. INTRODUCTION 1. In this Order, we deny an Application for Review (Application for Review) filed by USA Global Link, Inc. (Global Link) concerning the lawfulness of providing call-back access to customers located in the Philippines. Global Link asks us to reverse the Memorandum Opinion and Order issued by the Common Carrier Bureau (Bureau), in which the Bureau granted a complaint filed against Global Link by the Philippine Long Distance Telephone Company (PLDT). The Bureau found that Global Link violated Commission orders by using the uncompleted call signalling configuration of call-back to provide international service to customers in the Philippines, where the use of call-back is unlawful. For the reasons discussed below, we deny Global Link's Application for Review. II. BACKGROUND A. The Call-Back Proceeding 2. "Call-back" is a technology used to provide international telecommunications service from a foreign country through a U.S. switch. In the Call-Back Proceeding, the Commission stated generally that the use of call-back utilizing uncompleted call signalling was consistent with its policy favoring resale of international switched service. The Commission concluded that call-back "advances the public interest, convenience, and necessity by promoting competition in international markets and driving down international phone rates, [and that it] is in the best interests of consumers--and eventually of economic growth--around the world." 3. Notwithstanding this procompetitive policy, the Commission required U.S. carriers to provide call-back service "in a manner that is consistent with the laws of countries in which they operate." The Commission reaffirmed this requirement in its Reconsideration Order, stating that "U.S.-based carriers may not offer international call-back using uncompleted call signalling in countries that have specifically prohibited this practice." Subsequently, the Commission found a carrier to have violated the requirements of the Call Back Proceeding by offering international call- back services in the Philippines. B. The PLDT Complaint 4. On July 5, 1995, PLDT filed a complaint with the Commission alleging, inter alia, that Global Link violated the Commission's requirements in the Call-Back Proceeding by offering international common carrier service using call-back to customers in the Philippines, a country that prohibited such service. In the Global Link Order, the Bureau reached the following conclusions: (1) pursuant to section 208 of the Communications Act of 1934, as amended (the Act), PLDT had standing to file its complaint against Global Link; (2) Global Link was acting as a common carrier in its provision of service to the Philippines and was, therefore, subject to Commission regulation; (3) PLDT made a sufficient showing under the criteria set out in the Call-Back Proceeding that the Philippine government had declared the use of call-back in its country to be unlawful; and (4) Global Link violated the requirements of the Commission's Call-Back Proceeding and section 214 of the Act. Based on its conclusions, the Bureau directed Global Link to terminate its service to the Philippines to the extent that it used the uncompleted call signalling configuration of call-back. III. DISCUSSION 5. In its Application for Review, Global Link argues that the Bureau erred in granting PLDT's complaint in the Global Link Order. Global Link asserts that the Bureau failed to apply certain procedures specified in the Call-Back Reconsideration relating to the manner in which the Commission may assist a foreign government in enforcing that country's prohibition against call- back. Global Link contends that the Bureau departed from Commission precedent and policy and failed to explain adequately its reasons for doing so. Finally, Global Link contends that the Philippine government has not prohibited call-back using uncompleted call signalling. We address these arguments below. We note at the outset, however, that some of Global Link's arguments ultimately question the wisdom of the Commission's policy on international call-back. In resolving this formal complaint proceeding, we apply existing Commission rules and orders, and our decision here has no bearing on our evaluation of whether to modify these policies in the future. A. International Comity and Call-Back 6. We reject Global Link's assertion that the Bureau incorrectly accorded to a foreign private interest rights properly accorded only to foreign governments. Global Link correctly states that the Call-Back Reconsideration outlines procedures that foreign governments must follow before enlisting the Commission's aid in enforcing restrictions on call-back. Global Link contends that the omission of any discussion of private parties in connection with those procedures indicated that the Commission did not intend to apply the principles of comity to non-governmental parties. 7. In the Call-Back Proceeding, the Commission made two distinct rulings: (1) U.S. carriers may not provide service using call-back to countries where call-back was clearly prohibited, and, (2) foreign governments may obtain the Commission's assistance in enforcing their prohibition against call-back by following certain procedures. The Call-Back Proceeding does not, however, preclude a nongovernmental entity from filing an individual complaint under section 208 of the Act. The Bureau correctly determined that PLDT's complaint was properly filed pursuant to section 208 of the Act. It was filed by a "person" against a carrier (Global Link) for actions that would constitute a violation of the Act, a Commission order, or a Commission rule. The procedures described in the Call-Back Proceeding do not preclude the otherwise proper filing of a section 208 complaint by a private party. B. Procedural Requirements of the Call-Back Proceeding 8. We also reject Global Link's contention that the Bureau abandoned the procedural requirements established by the Commission in the Call-Back Proceeding by not applying them to PLDT, a nongovernmental entity. The Bureau did not abandon the Commission's "sensible policy" of requiring foreign governments to follow certain procedures in seeking the Commission's assistance. Indeed, the Bureau acknowledged the value of these procedures. The instant proceeding, however, is not a matter of mutual cooperation between governments, but rather a dispute between private parties. Furthermore, the Commission previously held in the ITL Order that PLDT was not required to follow the procedures set forth in the Call-Back Proceeding for foreign governments seeking U.S. law enforcement assistance. We conclude, therefore, that the Bureau did not err by making the same determination here. C. Call-Back Using Uncompleted Call Signalling Is Prohibited In The Philippines 9. The Commission determined in the ITL Order that PLDT had provided a sufficient showing under the criteria established in the Call-Back Proceeding that the government of the Philippines had prohibited call-back in that country. Based upon the same evidence the Commission considered in the ITL Proceeding, we find that the Bureau correctly reached the same conclusion in the instant case. IV. CONCLUSION and ORDERING CLAUSES 10. For the reasons discussed above, we conclude that the Bureau did not err in its findings that Global Link violated the requirements of the Call-Back Proceeding. We therefore deny Global Link's Application for Review. 11. Accordingly, IT IS ORDERED, pursuant to Sections 1, 4(i), 4(j), 208, and 405 of the Act, 47 U.S.C.  151, 154(i), 154(j), 208, 405, that the Application for Review filed by Global Link on September 12, 1997, IS DENIED. 12. IT IS FURTHER ORDERED that the Application for Review of Ex Parte Determination filed by Global Link on January 12, 1998, IS DENIED. 13. IT IS FURTHER ORDERED that the Motion for Consolidation filed by Global Link on November 19, 1997, IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary SEPARATE STATEMENT OF COMMISSIONER HAROLD FURCHTGOTT-ROTH Re: Philippine Long Distance Company v. International Telecom, Ltd., File No. E-95-29, Philippine Long Distance Company v. USA Global Link. Inc., File No. E-95-33. I have no qualms with the bottom lines reached in these two orders. In fact, I believe that generally enforcement decisions should apply the law as they find it. Here, we have held that "U.S. carriers may not offer international call-back using uncompleted call signalling in countries that have specifically prohibited this practice." Therefore I believe it is proper to apply that standard to Global Link and International Telecom. Nonetheless, I want to emphasize that today's decisions in no way reflect my endorsement of our current international call-back policies. I am increasingly troubled by the idea that a foreign government can limit the otherwise lawful operations of U.S. carriers. Despite the Commission's conclusion that international call-back services are pro-competitive and strengthen the marketplace, our current policy allows a foreign government (often also the owner of the foreign monopoly carrier) to snuff out these competitive services. In light of these doubts and the pending rulemaking on this issue, I write separately to clarify the limited nature of today's decisions.