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FCC 95-224

Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington D.C. 20554

In the Matter of

VIA USA, Ltd. File Nos. I-T-C-93-031

TELEGROUP, INC. I-T-C-93-050

Applications for Authority Under

Section 214 of the Communications

Act of 1934, as amended, to operate as International Resale Carriers

DISCOUNT CALL File No. I-T-C-93-054

INTERNATIONAL CO.

Application for Authority Under

Section 214 of the Communications

Act, as amended

ORDER ON RECONSIDERATION

Adopted: June 13, 1995 Released: June 15, 1995

By the Commission:

TABLE OF CONTENTS

Page No.

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

II. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

III. DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

A. U.S. Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

(1) Sections 201(b) and 214 of the Communications Act and the Federal

Wire Fraud Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

(2) Section 202(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

(3) Commission Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

B. International Law and Comity . . . . . . . . . . . . . . . . . . . . . . . .10

(1) International Telecommunication Regulations . . . . . . . . . . . . . . .10

(2) International Comity . . . . . . . . . . . . . . . . . . . . . . . . . .15

IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

V. ORDERING CLAUSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

I. INTRODUCTION

1. With this order, we reconfirm that call-back service utilizing uncompleted call signaling is consistent with our policy in favor of resale of international switched service.

Call-back advances the public interest, convenience and necessity by promoting competition in

International markets and driving down international phone rates. We believe it is in the best interests of consumers -- and eventually of economic growth -- around the world.

2. On April 12, 1994, the Commission granted the above-referenced Section 214 applications to resell international switched services using a "call-back" configuration. AT&T filed a petition for reconsideration of our Call-back Order in which it argues that call-back service using uncompleted call signaling constitutes wire fraud and violates the Communications Act of 1934. After soliciting and obtaining the opinion of the Department of Justice, we find the use of uncompleted call signaling does not constitute wire fraud. We also conclude that the resale of international switched service for the provision of call-back service using uncompleted call signaling is not an unreasonable practice or contrary to the public interest under the Communications Act. Further, we agree with the Department of State that this practice does not violate International Telecommunications Union (ITU) regulations. We accordingly deny AT&T's petition. In addition, as a matter of international comity, we reaffirm our prior conclusion that U.S.-based providers may not offer international call-back using uncompleted call signaling in countries that have specifically prohibited this practice.

II. BACKGROUND

3. Call-back service is provided by U.S. international long-distance resellers as a means for their customers, located outside of the United States, to access U.S-based international lines. Typically, a signaling call is placed by the originating caller overseas to the call-back provider's switch located in the United States. If uncompleted call signaling is used, the caller dials the provider's switch in the United States, waits a predetermined number of rings, and hangs up without the switch answering. The switch then automatically returns the call, and upon completion, provides the caller with a U.S. dialtone. All traffic is thus originated at the U.S. switch. The calls are billed at U.S. tariffed rates, which are often much lower than those of the originating country.

4. In the Call-back Order, we found that the public interest, convenience and necessity would be served by granting the above-cited applications to resell the international switched services of various U.S. common carriers. We declined to find that one call-back method – uncompleted call signaling (or "code calling") -- constituted an unreasonable practice under Section 201(b) of the Communications Act. We noted that call-back services could place significant downward pressure on foreign collection rates, to the ultimate benefit of U.S. ratepayers and industry by stimulating foreign-billed traffic and thus reducing the net settlements imbalance. We made no finding with respect to the legality of call-back services under international law as set forth in the International Telecommunication Regulations (ITR). However, we required that licensees provide service in a manner consistent with the laws of countries in which they operate.

5. AT&T's petition for reconsideration alleges that uncompleted call signaling is an unreasonable practice under Section 201(b) of the Communications Act, and is not in the public interest under Section 214 of the Act because it contravenes the federal wire fraud statute and constitutes theft of service. AT&T further alleges this practice violates Section 202(a) of the Act. MCI and Sprint agree. We received comments supporting AT&T's petition from COMTELCA/INTEL which raise issues of international law and comity. In particular, COMTELCA/INTEL contend that call-back services utilizing uncompleted call signaling violate Articles 1.5 and 3.3 of the ITR. Comments were also received on the legal status of call-back services in general in a number of foreign countries, in support of the contention that U.S. authorization of call-back offends international comity. We agreed that the issues raised in the comments supporting AT&T's petition merited examination, and sought, on our own motion, additional comment on all of them. We also solicited the views of the Department of Justice ("Justice") on the wire fraud issue, and the Department of State ("State") on the issues of international law and comity. VIA USA, Telegroup and the Telecommunications Resellers Association each filed in opposition to the Petition for Reconsideration.

III. DISCUSSION

A. U.S. Law

6. AT&T's petition for reconsideration asks us to reexamine our finding that uncompleted call signaling does not violate the federal wire fraud statute or Sections 214, 201(b) and 202(a) of the Communications Act. We reaffirm that international call-back services using uncompleted call signaling violate neither the Communications Act nor the federal wire fraud statute.

(1) Sections 201(b) and 214 of the Communications Act and the Federal Wire Fraud Statute

(a) Pleadings

7. AT&T argues that uncompleted call signaling is contrary to the public interest under Section 214 and an unreasonable practice under Section 201(b) because it violates the federal wire fraud statute and constitutes theft of service. AT&T thus asks that we consider the lawfulness of the applicants' practices under criminal law, as a part of our public interest and reasonableness determinations. VIA USA and Telegroup contend in their responses that wire fraud cannot occur without a completed call. In the alternative, they both argue, along with the Telecommunications Resellers of America (TRA), that uncompleted call signaling does not constitute wire fraud because there is no wrongful appropriation of money or property, based on the practice of international facilities-based carriers not to charge for uncompleted calls. Sprint noted that "code-calling" does not "involve active misrepresentation of the kind that would support a finding of wire fraud."

8. Independent of its contentions regarding wire fraud, AT&T also alleges that "code-calling" is theft of service and a "wrongful invasion of AT&T's property." AT&T further objects to our finding that uncompleted call signaling does not impede revenue-producing use of the network and is thus not unreasonable. While AT&T does not allege the practice degrades network performance or otherwise imposes specific costs on AT&T or other network providers, it urges us to reconsider our previous decision because it maintains that allowing uncompleted call signaling under the Call-back Order amounts to a "de minimis exception for theft." VIA USA, Telegroup, and TRA respond that uncompleted call signaling is not theft because the service that AT&T claims is being stolen is willingly provided free of charge.

(b) Discussion

9. Our Call-back Order rejected AT&T's charge that uncompleted call signaling constitutes federal wire fraud and thus violates Section 201(b) of the Communications Act. We thus found that AT&T failed to show the practice is contrary to the public interest and unreasonable under Section 201(b).

10. On reconsideration, we sought the opinion of the Department of Justice as to whether uncompleted call signaling violates the federal wire fraud statute. See 18 U.S.C.  1343. Justice agreed with our prior analysis and determined that uncompleted call signaling does not constitute wire fraud. We therefore affirm that uncompleted call signaling does not violate the federal wire fraud statute.

11. According to Justice, the essential elements of a violation of Section 1343 are that "the defendant created a scheme to defraud or for obtaining money or property by means of false representations and, for the purpose of executing that scheme, made or caused some sort of transmission by wire or radio in interstate or foreign commerce." The Justice analysis focused on whether uncompleted call signaling constitutes a "scheme to defraud," which in turn requires an analysis of existing precedent on what constitutes "dishonest methods or schemes." In each case involving fraud in obtaining phone service, Justice found four factors present: (1) the defendant obtained or conspired to obtain a service the carrier charged for; (2) the defendant avoided payment or did not pay the full rate for the service; (3) the defendant's conduct violated a statute, tariff or formal agreement; and (4) the conduct was unauthorized or was concealed.

12. In the case of uncompleted call signaling, Justice found, at most, only factors (2) and (4) present. Specifically, factor (2) is present because call-back operators employing uncompleted call signaling do not pay for the service, and factor (4) may be present because uncompleted call signaling is not expressly authorized by AT&T or other international carriers. However, Justice noted that factor (1) is absent because neither AT&T nor any other international carrier reflected in the record charges for uncompleted calls. In addition, factor (3) is inapplicable because, as noted in our Call-back Order, AT&T does not allege that uncompleted call signaling violates the governing tariff between AT&T and its foreign corespondents.

13. Justice thus concludes that "there are insufficient indicia of fraud to make out a case under Section 1343 under the theories of those cases. . . . It appears, therefore, that the U.S. carriers have found and are legitimately exploiting a loophole in AT&T's tariff structure." We agree with Justice's analysis that uncompleted call signaling is not a violation of the federal wire fraud statute and is not for that reason an unreasonable practice under Section 201(b) of the Communications Act.

14. We turn next to AT&T's contention that uncompleted call signaling is an unreasonable practice under Section 201(b) because it constitutes theft of service. AT&T defines theft as "[t]he fraudulent taking of personal property belonging to another . . . with the intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking."

We recognize that uncompleted call signaling constitutes an uncompensated use of the network. However, in the system as currently structured by facilities-based carriers, customers do not expect to pay for an uncompleted call. Nor do carriers expect to be compensated. Because there is no expectation of payment for uncompleted calls, the failure to pay for those calls does not deprive carriers of anything they are otherwise due. Thus, we cannot find that any "property" is "taken."

15. In our Call-back Order, we said that AT&T had not produced evidence that uncompleted call signaling imposes costs on AT&T and its ratepayers through uncompensated use of the network. AT&T understood us to say that any uncompensated use of the network is permissible as long as it is "de minimis." This was not our intent. We do not condone the failure to pay network owners the amount they charge for network use, de minimis or otherwise. Uncompleted call signaling is permissible because the carriers do not charge for such calls, and not because carriers have failed to demonstrate that the costs such a call imposes are substantial or that it impedes use of the network.

16. Indeed, as we noted in our Call-back Order, AT&T is poorly situated to complain about someone using the network for an uncompleted call. It manufactures and markets answering machines which answer an incoming call on a shorter number of rings only when it has received messages. This allows the machine's owner to hang up before the machine answers if there are no messages to retrieve, avoiding any charges for the call, but nevertheless signaling that there are no recorded calls. AT&T argues that this service is distinguishable from uncompleted call signaling because the caller only intends an uncompleted call if the answering machine has no messages to play, whereas users of uncompleted call signaling do not ever intend that the call be completed. We do not find this distinction relevant to our concerns here. AT&T has designed and marketed a device which utilizes the network free of charge in certain circumstances. We see no principled distinction between uncompensated use of the network by AT&T's answering-machine customers and such use by customers of uncompleted call signaling services. The fact that AT&T and other companies manufacture equipment designed to make free use of the network is powerful evidence that these carriers do not consider such use of the network compensable under their existing tariffs.

17. Although we find that uncompleted call signaling is not an unreasonable practice, we note that uses of the network which degrade network performance or impair service offerings would violate the tariffs of the underlying facilities-based carriers. In this regard, we received comment from Telecom Italia and KDD alleging network degradation due to call-back services. Although their comments refer to uncompleted call signaling, we understand these comments to be directed at "hot line" or "polling" methods of providing call-back service. By this method, a U.S-based reseller places a continuous stream of "bids" to the foreign customer's telephone number. When the customer chooses to initiate a call, he "answers" his telephone and is provided with a U.S. dialtone. Such a constant claim on network resources does not provide the carrier with a corresponding source of revenue, and at the same time it precludes the carrier from carrying revenue-producing traffic over those circuits.

18. As we stated in our Call-back Order, U.S. facilities-based carriers generally have tariff provisions requiring subscribers to avoid interfering with service provided by the carrier. These provisions could allow the facilities-based carrier to terminate service to a reseller whose "hot line" practices interfere with its ability to provide service. AT&T and MCI have each filed ex parte comments regarding this practice and each carrier asserts that such activity violates its underlying tariff. These carriers are aware of the problem and actively take measures to stop this practice. Nothing in this order should be construed as authorizing such practices or preventing such remedial measures.

19. In sum, because we agree with Justice that the use of uncompleted call signaling does not constitute federal wire fraud, and because we find that the practice does not constitute theft of service, we do not find that it is an unreasonable practice under Section 201(b) or that it is contrary to the public convenience and necessity under Section 214.

(2) Section 202(a)

(a) Pleadings

20. AT&T alleges that uncompleted call signaling violates Section 202(a) because "[p]ermitting Applicants to use AT&T's network to transmit information discriminates unreasonably against other customers who must pay for transmission of information." It offers little further analysis to support this contention. Telegroup argues that the Commission's rules do not permit us to consider AT&T's Section 202 argument on reconsideration because it was not raised in the original proceeding. It further contends, as does VIA USA, that Section 202 applies only to discrimination against customers, not against carriers, and thus cannot apply here because AT&T does not allege that the applicants discriminate among any of its own customers. Further, VIA USA, Telegroup, and TRA agree with our earlier finding that the cases cited by AT&T to support its Section 202 contention are factually distinguishable. VIA USA and TRA also argue that the cases cited by AT&T were wrongfully decided and are of limited precedential value. Finally, TRA argues that in any event, the cases are not binding because the Commission is not bound to follow the statutory interpretation of individual U.S. District courts.

(b) Discussion

21. Whether or not AT&T properly raised the issue, we do not believe Section 202(a) applies to uncompleted call signaling. Section 202(a) provides that "It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service. . . ." The Court of Appeals for the District of Columbia Circuit has enunciated a three-step analysis for alleged violations of Section 202(a): "(1) whether the services are `like'; (2) if they are, whether there is a price difference between them; and (3) if there is, whether this difference is reasonable." It is unclear from AT&T's pleadings what services it contends are "like" uncompleted call signaling. We surmise that AT&T contends that users who convey information via normal International Message Toll Service ("IMTS") calls are unfairly discriminated against because they must pay to transmit information while other users are able to transmit information free of charge using uncompleted call signaling.

22. In determining whether services are "like," the D.C. Circuit uses a "functional equivalency" test, which focuses on whether "the services are different in any material functional respect." In applying this test, we look to the nature of the services and then determine whether customers perceive them as the same, with cost considerations being the sole distinguishing factor. Uncompleted call signaling and IMTS are obviously not "functionally equivalent" because IMTS provides real-time two way voice communication, whereas uncompleted call signaling merely conveys one-way the simple signal that a call is made from a particular number. Moreover, although there is a price difference between the two services (most if not all carriers provide uncompleted calls free of charge while charging for IMTS calls), the almost universal acceptance of this distinction is strong evidence that this difference in price is based on an underlying difference in value -- and is therefore reasonable. We therefore do not find that uncompleted call signaling is unreasonably discriminatory in violation of Section 202 of the Act.

23. The two unreported U.S. district court cases cited by AT&T, decided in the 1950s, involved a scheme whereby two trucking companies conveyed loading and location information between drivers and their central offices in code by means of unaccepted person-to-person collect calls. In our Call-back Order, we found the conduct described in these cases was distinguishable from uncompleted call signaling because the defendants in those cases used operators to convey specific information and engaged in conduct contrary to the carrier's underlying tariff. In contrast, AT&T did not allege that uncompleted call signaling is contrary to any tariff, nor did it allege that it impedes revenue-producing use of the network. Thus the cases did not persuade us that uncompleted call signaling was contrary to the public interest.

24. AT&T argues again that the cases are analogous to uncompleted call signaling. But AT&T misses the crucial distinction: the practice in which the trucking companies engaged violated the carrier's tariffs, whereas uncompleted call signaling does not. It has no effective reply to this distinction. We therefore cannot conclude from these cases that uncompleted call signaling violates Section 202.

(3) Commission Policy

(a) Pleadings

25. AT&T asserts that our finding that uncompleted call signaling is consistent with our international resale policy and not contrary to the public interest rests on the erroneous assumption that uncompleted call signaling is "necessary" to promote resale. MCI and Sprint also object to our finding. AT&T states that uncompleted call signaling is not necessary because other methods of providing international call-back services exist which compensate the originating carrier for the initial call. VIA USA and TRA argue that AT&T's statement misrepresents our actual conclusion: call-back is in the public interest because it places downward pressure on foreign collection rates. TRA argues that, notwithstanding the existence of other call-back methods, uncompleted call signaling is in the public interest because it enables service providers to offer the lowest possible collection rates and exerts the greatest pressure on foreign carriers to lower international collection rates.

(b) Discussion

26. AT&T misunderstands our finding. We did not conclude that call-back service utilizing uncompleted call signaling is "necessary" to promote resale. And, obviously, we are well aware that there are alternate methodologies for offering call-back services. But this does not mean that uncompleted call signaling is contrary to the public interest.

27. The market for international call-back services has been created, at least in part, by the large disparity between U.S. and foreign collection rates. This disparity encourages suppliers to offer lower cost options like call-back service to users who can then avoid higher cost, foreign-billed service. As users shift to call-back service, a telecommunications operator will be under pressure to reduce its collection rates to consumers of similar services. These reductions, in addition to attracting some users away from call-back service, will stimulate additional, foreign-billed demand which may have the beneficial effect of reducing the U.S. traffic imbalance, U.S. net settlements payments, and U.S. carriers' average net settlement cost per minute.

28. We continue to believe that call-back service using uncompleted call signaling promotes the public interest by providing increased competition in foreign markets which places significant downward pressure on foreign collection rates, to the ultimate benefit of U.S. consumers and industry whether located within the United States or abroad. Several telecommunications operators have lowered collection rates significantly in response to call-back services. This is important evidence that the provision of call-back service furthers our underlying policy in favor of international resale and promotes the public interest.

29. AT&T has thus failed to show that uncompleted call signaling is contrary to the public convenience and necessity under Section 214 of the Communications Act. We conclude that uncompleted call signaling neither constitutes theft of service nor violates the federal wire fraud statute. It is not an unreasonable practice under Section 201(b) of the Communications Act and does not cause a carrier to discriminate unreasonably in violation of Section 202(a) of the Communications Act. In sum, uncompleted call signaling is permissible under U.S. law and advances important policy goals.

B. International Law and Comity

(1) International Telecommunication Regulations

(a) Pleadings

30. Our Call-back Order did not address the argument that call-back services violate international law. That argument has now been put forward. As we take adherence to international obligations seriously, we have sought the advice of the Department of State, and address these issues here.

31. COMTELCA/INTEL assert that call-back utilizing uncompleted call signaling violates international law. They contend that call-back providers are Private Operating Agencies ("POAs") and Recognized Private Operating Agencies ("RPOAs"), as defined in the 1982 Nairobi Convention, and therefore fall within the scope of the International Telecommunication Regulations. Noting that Article 1.5 of the ITR specifies that "the provision and operation of international telecommunications services in each relation is pursuant to mutual agreement between administrations," they assert that uncompleted call signaling is a "relation" different from that contemplated in existing operating agreements between facilities-based carriers. They further contend that, since call-back providers have not obtained operating agreements with administrations in the countries in which they operate, there is no "mutual agreement". In addition, they claim that call-back providers are in violation of Article 3.3 of the ITR, which provides that "[a]dministrations shall determine by mutual agreement which international routes are to be used." COMTELCA/INTEL allege that call-back services generate indirect routings of calls and affect accounting rates in ways Article 3.3 is designed to prevent, and in any event have not been agreed to by the affected Administrations.

32. VIA USA, Telegroup, and TRA contest the assertion that the ITR are applicable to call-back providers, on the grounds that resellers are neither POAs nor RPOAs under the 1982 Nairobi Convention. Even if they were, these commenters contend that uncompleted call signaling is not a "service" within the scope of Article 1.5, but rather is a means of accessing a service -- IMTS -- already covered by underlying carriers' operating agreements. They further contend that Commission precedent and policy do not require resellers to obtain operating agreements. Similarly, these commenters argue that Article 3.3 should not be interpreted to require resellers which transit traffic through the United States to enter into operating agreements concerning their routing arrangements.

(b) Discussion

33. We limit our ruling on the international law issues to the uncompleted call signaling configuration of call-back offerings because AT&T's petition and the comments submitted in response to our Sept. 12 Order focused on this methodology. In addition, the Department of State analyzed the international law issues posed by uncompleted call signaling only.

34. There is no disagreement over the relevance of international law. The United States, as a party to the 1982 Nairobi Convention and to the ITR, is subject to the obligations imposed by these instruments. As the Commission has ruled, "[the] United States Government is bound...to assure that all U.S. nationals or other entities operating within its borders obey the binding international regulations" of the ITU.

35. The ITR do not purport to cover all aspects of telecommunications, especially technological developments such as call-back that post-date their adoption. As State notes, the United States and other countries took the view (both during the international conference at which the ITR were agreed and in subsequent national ratification proceedings) that the ITR did not foreclose telecommunications innovations or impede differing national legal and regulatory regimes. The signatories to the ITR thus did not intend that they be definitive in scope. As State observes:

The call-back configuration was not anticipated during the negotiation and conclusion of the International Telecommunications Regulations...and has not been anticipated by the Recommendations developed by the International Telegraph and Telephone Consultative Committee (CCITT) or, to date, by its successor, the Telecommunication Standardization Sector (ITU-T). Thus, it is our view that the `call-back configuration' is not prohibited by the Melbourne Agreement or any of the current ITU-T Recommendations.

36. That call-back was neither envisaged nor prohibited by the ITR or subsequent ITU-T Recommendations does not necessarily place it outside the scope of specific ITR provisions. We are not persuaded, however, by COMTELCA/INTEL that the uncompleted call signaling call-back configuration contravenes Articles 1.5 and 3.3 of the ITR.

37. International telecommunication "service" is defined in Article 2.2 of the ITR as "the offering of a telecommunication capability between telecommunication offices or stations of any nature that are or belong to different countries." The generality of this definition was intended to complement the purpose, set forth in Article 4.2, that "Members...provide, by mutual agreement, a wide range of international telecommunication services which should conform, to the greatest extent practicable, to the relevant CCITT Recommendations." Thus, in defining "service" under Article 2.2, ITU-T (formerly CCITT) Recommendations should be the guide. As noted above, call-back is not the subject of any such Recommendation. State therefore concludes: "...[u]nder the Melbourne Agreement and existing ITU-T Recommendations, call-back as a technical configuration is not a discrete `international service,' as that term is used in the Melbourne Agreement (Art. 1.1, Art. 2.2); rather the call-back configuration is a signaling mechanism that facilitates the provision of telephony service by underlying carriers." We concur in this analysis.

38. Article 1.5 of the ITR provides: "Within the framework of the present Regulations, the provision and operation of international telecommunication services in each relation is pursuant to mutual agreement between administrations." Uncompleted call signaling is simply a means of accessing IMTS, a service which is already explicitly included in operating agreements between facilities-based providers, and thus subject to "mutual agreement." Call-back providers offer a means of delivery different from that ordinarily utilized by a customer in a foreign country, but the service delivered (IMTS) is identical. Since call-back is not a service under Article 2.2, the "mutual agreement" requirement only applies to the underlying IMTS service, not to the call-back configuration used to access that service. As the "mutual agreement" obligation does not apply to the uncompleted call signaling method, we need not reach the separate contention that it does not apply to call-back providers because they are neither POAs nor RPOAs under the terms of the 1982 Nairobi Convention.

39. We further agree with State's conclusion that the uncompleted call signaling call-back configuration is consistent with Article 3.3 of the ITR governing the transiting of international traffic.

That article provides:

Administrations shall determine by mutual agreement which international routes are to be used. Pending agreement and provided there is no direct route existing between the terminal administrations concerned, the origin administration has the choice to determine the routing of its outgoing telecommunication traffic, taking into account the interests of the relevant transit and destination administrations.

State notes that this provision is intended, in large part, to govern the relationship between Administrations/RPOAs and their foreign counterparts with respect to call routing. The uncompleted call signaling configuration, by contrast, relies on the user's choice to generate the routing. State therefore concludes that "Article 3.3 does not regulate the actions of individual consumers in placing telephone calls or selecting modes of telephony." In addition, the two underlying IMTS calls originating in the call-back provider's country are routed pursuant to operating agreements in place between the international facilities-based service providers at each end of those calls, and compensated according to the rates set forth in those agreements. State further notes that the third element, the uncompleted call portion of uncompleted call signaling, is not prohibited by current ITU Conventions or Recommendations.

40. Finally, we note that the ITU itself has not determined the legal status of international call-back under the ITR. At the 1994 ITU Plenipotentiary Conference in Kyoto, a resolution on alternative calling services was discussed and ultimately adopted. Contrary to the assertions of some commenters, however, the resolution neither imposes binding international obligations upon ITU Member States, nor constitutes findings by the organization on the status of call-back under international law.

41. In sum, we conclude that international law does not preclude the uncompleted call signaling configuration of international call-back.

(2) International Comity

(a) Pleadings

42. We received information on the status of international call-back under the laws of twenty-one countries. The comments fall into five broad categories. Two countries' communications regulatory authorities have endorsed call-back service. Two governments object to call-back on policy, and not legal, grounds. Two others state that call-back is contrary to national law but provide no further detail. Three identify specific administrative regulations or rulings barring international call-back. The largest category, twelve countries, point to general telecommunications legislation or concession arrangements which have the effect of requiring administrative approval or licensing of all activities not vested in the national provider. None of the countries in this last category suggest that such approval or licensing of call-back providers would take place. Indeed, the overall position expressed in these statements is to the contrary.

43. All of the foreign governments or carriers whose comments support the AT&T petition ask that the Commission withdraw authorization for call-back services because of their national objections. In addition, COMTELCA/INTEL, as well as several foreign governments and carriers, assert that the resolution adopted at the 1994 ITU Plenipotentiary Conference in Kyoto highlights the strength of governmental objection to international call-back services. COMTELCA/INTEL further point out that Commission precedent has expressly recognized the importance of international comity considerations. While acknowledging that our Call-back Order did require call-back providers to act in a manner consistent with the laws of countries in which they operate, COMTELCA/INTEL contend that this requirement thus far has proven ineffective, and that the Commission should further insist that call-back providers seeking authorization under Section 214 certify their compliance with relevant foreign law as a precondition to licensing.

44. VIA USA asserts that the scale of foreign objection to international call-back is overstated, noting that a number of countries have either expressly allowed uncompleted call signaling to occur or taken steps (such as reducing international rates) indicating their accommodation to the phenomenon. VIA USA, Telegroup, and TRA do not contest the appropriateness of FCC recognition of international comity, but rather contend that the general requirement contained in the Call-back Order regarding conformity with applicable foreign law fully satisfies this standard. Indeed, they argue that going further would put the United States in the position of enforcing foreign telecommunications service approval procedures, contrary to U.S. declarations in the final protocol to the ITR.

(b) Discussion

45. Our Call-back Order expressly required applicants to provide international call-back offerings "in a manner that is consistent with the laws of countries in which they operate." The submissions of COMTELCA/INTEL and a number of other governments suggest that this general requirement may not have deterred some call-back providers from offering their services in countries which regard them as illegal. We therefore have reviewed international call-back using uncompleted call signaling in light of the doctrine of international comity. We reaffirm our previous finding that call-back providers utilizing the uncompleted call signaling configuration must provide this offering in a manner consistent with the laws of countries in which they operate.

46. Preliminarily, we note that our findings with respect to international comity, as with regard to international law, apply to the uncompleted call signaling configuration of international call-back only. The comments center on this means of offering call-back, and State's analysis limits itself to this methodology.

47. The doctrine of comity reflects the broad concept of respect among sovereign nations, and is useful in determining "the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation." It is a discretionary means for U.S. courts and agencies to take account of foreign sovereign acts, and therefore is distinct from obligations imposed under international law. Indeed, the United States declared, in the Final Protocol adopting the International Telecommunication Regulations in 1988, that we understood the ITR as a whole, and Article 1.7 in particular, to mean that we did not "accept any obligation to enforce any provision of the domestic law or regulations of any other Member." The United States also declared that it did not "endorse, in any way, domestic procedures of other Members which would require approval for providers of telecommunication services...seeking to do business outside the United States of America." These declarations make clear that foreign governments could not, simply by enacting domestic legal, regulatory, or procedural measures, require the United States to implement such measures as a matter of international law. They do not, of course, preclude us from choosing to honor a provision of foreign law or regulation where we believe it warranted by exceptional circumstances.

48. International call-back has been actively debated in international fora in recent years, most notably at the 1994 ITU Plenipotentiary Conference in Kyoto, which passed a resolution on alternative calling services. Comity is a central element of that resolution, which recommends that a member state having jurisdiction over a call-back provider whose operations infringe another member state's laws "inquire into the matter and take such actions as may be appropriate within the constraints of its national law."

49. Foreign governmental views on international call-back are not uniform. Even among the countries of Central and South America, where opposition to international call-back services is particularly strong, certain countries (e.g. Argentina) have found international call-back to be legal. In Asia, Hong Kong has found call-back consistent with its domestic telecommunications regime, while Japan and Singapore have declined to take action to prevent it. The European Commission has noted, without objection, the availability of call-back services within the territories of its member states. A study of call-back and other alternative calling procedures by the Organization for Economic Cooperation and Development (OECD) noted that they are driven by price distortions in monopoly-based markets. The OECD study concluded that, by introducing competition for international telephone service, these services "play a useful role in the market-place and need to be encouraged."

50. Nevertheless, the record demonstrates that some foreign governments regard international call-back services as contrary to their national laws, and that they view activities taking place within the United States by providers who utilize uncompleted call signaling as contributing to the evasion of their laws. The Commission's previous discussion of international comity has not addressed the situation before us today, in which some foreign countries' laws and regulations conflict with U.S. policy. We believe that foreign governments which have decided to outlaw uncompleted call signaling bear the principal responsibility for enforcing their domestic laws, just as our mandate is to implement the statutory requirements of the Communications Act. However, we recognize that foreign governments face unusual difficulties in giving effect to their laws and regulations barring uncompleted call signaling. Our invocation of comity in this circumstance would assist in the effective enforcement of such foreign laws and regulations. We therefore find, as a matter of international comity, that the Commission should prohibit carriers authorized to provide call-back service utilizing uncompleted call signaling from providing this offering in countries where it is expressly prohibited. We would expect no less from foreign governments in a comparable context.

51. Accordingly, we reiterate the requirement articulated in our Call-back Order that applicants may not provide call-back using uncompleted call signaling to countries which have clearly and explicitly prohibited this offering by statute or regulatory decision. Any demonstrated failure to observe this requirement will be subject to FCC enforcement action. Finally, we will use our enforcement authority to identify and sanction those resellers, including call-back providers, which are operating without proper Section 214 authorizations and tariffs.

52. We will ask the Department of State to communicate our findings and conclusions in this proceeding to foreign governments. Any foreign government which has expressly found international call-back using uncompleted call signaling to be unlawful, and which has been unable to enforce its domestic law or regulation against U.S. providers of this offering, may so notify the United States Government. Its notification should include specific documentation of its legal restrictions on international call-back utilizing uncompleted call signaling, evidence of violations by particular carriers, and a description of its enforcement measures. Any foreign government also may convey to the Commission's staff documentation of its specific statutory or regulatory measure in order to put U.S. carriers on notice that international call-back utilizing uncompleted call signaling is illegal in its territory. To facillitate such notification, we will maintain and periodically publish a list of countries which have forwarded such information to the Commission. The Commission's staff will maintain a file of all such communications, for appropriate agency action and for reference.

IV. CONCLUSION

53. In this order, we affirm our order and authorization granting the applications of VIA USA, Ltd., Telegroup, Inc. and Discount Call International Co. to resell international switched services of other carriers using a call-back configuration. Such services are in the public interest because they promote increased competition and create incentives for the reduction of foreign collection rates, to the benefit of U.S. consumers and industry. We affirm our determination that call-back provision utilizing an uncompleted call signaling configuration does not violate the federal wire fraud statute, and is consistent with the Communications Act. We further conclude that call-back services using the uncompleted call signaling configuration are consistent with the International Telecommunication Regulations. Finally, we believe that it is appropriate for the Commission, as a matter of international comity, to take note of foreign governments' legal determinations that international call-back services violate their domestic laws. We affirm that international call-back providers utilizing uncompleted call signaling may provide this offering only when it is not expressly prohibited by the laws of the countries in which they operate, and, accordingly, so condition these authorizations.

V. ORDERING CLAUSES

54. Accordingly, IT IS ORDERED that the petition for reconsideration filed by AT&T IS

DENIED.

55. IT IS FURTHER ORDERED that applicants are prohibited from providing call-back using uncompleted call signaling to a country which has expressly prohibited this offering in its territory by statute or regulatory decision.

56. This order is effective upon release.

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton

Acting Secretary