Common carrier services: International interexchange marketplace policy and rules; biennial regulatory review,

[Federal Register: March 28, 2001 (Volume 66, Number 60)]

[Rules and Regulations]

[Page 16874-16882]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr28mr01-14]

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 0, 42, 43, 61, 63, and 64

[IB Docket No. 00-202, FCC 01-93]

Policy and Rules Concerning the International Interexchange Marketplace and 2000 Biennial Regulatory Review

AGENCY: Federal Communications Commission.

ACTION: Final rule.

SUMMARY: This document forbears from the requirement that U.S. non- dominant interexchange carriers file tariffs for most international services pursuant to the requirements of the Communications Act. The Commission initiated this proceeding to determine whether to extend the complete detariffing regime that it adopted for domestic, interexchange services to the international services of non-dominant commercial mobile radio services and interexchange carriers, including U.S. carriers classified as dominant due to foreign affiliations. The Commission believes that the rules and policies contained in the Order will foster competition in the U.S. international services market and benefit U.S. consumers.

DATES: Effective April 27, 2001. Public and agency comments on the request for emergency approval of the information

[[Page 16875]]

collection requirements are due April 11, 2001. Public and agency comments on the request for regular approval of the information collection requirements are due May 29, 2001.

ADDRESSES: All comments regarding the requests for approval of the information collection, both regular and emergency, should be submitted to Judy Boley, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to jboley@fcc.gov; phone 202-418-0214. In addition, comments on the emergency request for approval of the information collections should be submitted to Edward C. Springer, OMB Desk Officer, Room 10236 NEOB, 725 17th Street, NW, Washington, DC 20503 or via the Internet to edward.springer@omb.eop.gov.

FOR FURTHER INFORMATION CONTACT: Kathryn O'Brien, Policy and Facilities Branch, Telecommunications Division, International Bureau, (202) 418- 1460.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report and Order, FCC 01-93, adopted on March 16, 2001, and released on March 20, 2001. The full text of this document is available for inspection and copying during normal business hours in the Office of Media Relations, Reference Operations Division (Room CY-A257), of the Federal Communications Commission, 445 12th Street, SW, Washington, DC 20554. The document is also available for download over the Internet at http:/ /www.fcc.gov/Bureaus/International/Orders/2001/. The complete text of this document also may be purchased from the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, NW., Washington, DC 20036, (202) 857-3800.

Summary of Report and Order

1. In 1996, the Commission adopted policies and rules regarding the detariffing of domestic interexchange services (Domestic Detariffing Order) (61 FR 59340, November 22, 1996). In the Domestic Detariffing Order, the Commission concluded that complete detariffing with limited exceptions for permissive detariffing, satisfies the criteria set forth in section 10(a) of the Communications Act. The Commission made no determination as to whether detariffing international, interexchange services satisfied the requirements of section 10, as competitive conditions in the international marketplace may vary from those in the domestic interexchange marketplace.

2. On October 12, 2000, the Commission adopted a Notice of Proposed Rulemaking (NPRM) (65 FR 66215, November 3, 2000) to determine whether competitive conditions in the international interexchange marketplace support detariffing non-dominant carriers' provision of international services in accordance with the criteria in section 10 of the Communications Act of 1996. Since adopting the Domestic Detariffing Order, there have been dramatic changes in the market for international interexchange services resulting in increased competition. Thus, the Commission commenced this proceeding to examine whether to continue to require U.S. non-dominant interexchange carriers to file tariffs for international services pursuant to the requirements of section 203 of the Act. In addition, pursuant to the Communications Act of 1996, the Commission is required to review all regulations that apply to operations or activities of any provider of telecommunications service and to repeal or modify any regulation it determines to be no longer necessary in the public interest. In the Order, the Commission adopts a policy of complete detariffing for most of the services of non-dominant interexchange and commercial mobile radio service (CMRS) carriers.

3. In the Order the Commission concluded that the Communications Act requires the FCC to forbear from applying section 213 of the Act, and to adopt a policy of complete detariffing for international interexchange services and CMRS provided by non-dominant carriers, with limited exceptions for permissive detariffing.

4. In the Order, the Commission clarified its use of the term ``interexchange services'' to cover those telecommunications services provided between telephone exchanges, not including exchange access services.

5. The Commission reaffirmed its conclusion that the competitive state of the international interexchange marketplace no longer requires non-dominant carriers to file tariffs to ensure that charges, practices, classification or regulations are just and reasonable. In the Order, the Commission describes its efforts that have led to the competition in the marketplace for international interexchange services, which have resulted in significant benefits to consumers. The Commission concluded that pursuant to section 11 of the Act, the requirement that non-dominant carriers file tariffs pursuant to section 203 of the Act is unnecessary because of meaningful economic competition in the international interexchange marketplace. The Order concluded that the Commission's international rules, policies, and enforcement authority, in conjunction with market forces and a more educated consumer, will generally ensure that the rates, practices, and classifications of non-dominant interexchange carriers for international interexchange services will be just and reasonable and not unjustly or unreasonably discriminatory. Thus, tariffs for international interexchange services provided by non-dominant carriers are no longer necessary to ensure that charges, practices, classifications or regulations are just and reasonable and are not unjustly or unreasonably discriminatory as required by section 10(a). In addition, pursuant to section 11, the Commission concluded that the requirement for non-dominant carriers to file tariffs pursuant to section 203 of the Act is unnecessary because of meaningful economic competition in the interexchange marketplace. The Commission believes that its policy of complete detariffing for non-dominant interexchange carriers will improve market efficiency by permitting carriers to respond to the dynamics of the marketplace and will further the goals of sections 201 and 202 of the Act.

6. The Order concluded that complete detariffing will enhance competition and protect consumers against rates, terms and conditions that violate the Communications Act because complete detariffing will permit carriers to have the flexibility necessary to respond to dynamic price and service changes in the marketplace and will best protect consumers from the rates, terms and conditions that violate sections 201 and 202 of the Act.

7. The Order also concluded that tariffing requirements not only impair market efficiency but also permit carriers to harm consumers through the application of the ``filed-rate'' doctrine. In this proceeding, the Commission has sought to prevent, through the use of its forbearance authority granted in section 10, the invocation of the ``filed-rate'' doctrine and its subsequent potential harm to consumers.

8. The Order concluded that a policy of complete detariffing will produce pro-consumer benefits by forcing carriers to be more responsive to customer demands and to offer a greater variety of innovative price and service packages. The Commission acknowledged that permissive or voluntary detariffing would impede vigorous competition in the market for interexchange services by removing the incentives for competitive price discounting, reducing or eliminating carriers' ability to make rapid, efficient responses to changes in demand and

   [[Page 16876]]

   cost, imposing costs on carriers that attempt to make new offerings, and preventing or discouraging consumers from seeking or obtaining service arrangements specifically tailored to their needs.

9. The Commission concluded that complete detariffing will enhance competition and will be in the public interest. However, the Commission did find that there were limited exceptions for permissive detariffing that would be in the public interest. The Order will allow, on a permissive basis, non-dominant interexchange carriers to file tariffs for dial-around 1+ services and local exchange carrier (LEC) implemented new customer services for a period of forty-five days or until there is a written contract between the carrier and customer, whichever is earlier, is in the public interest. The Commission found that permissive detariffing is appropriate for the provision of international inbound collect calls at this time. The Commission adopted a policy of permissive detariffing for the non-dominant provision of ``on-demand'' Mobile Satellite Services where a customer has not entered into a pre-existing ISP service contract for a particular provider. The Order amended Sec. 63.11 of the Commission's rules to reflect the provisions for permissive detariffing.

10. The Order required the public disclosure and maintenance of information about international interexchange services. This information will promote carrier compliance with the requirements of the Act and permit consumers to have the information necessary to make efficient choices regarding their service plans. Carriers must ensure that information is available to the public in at least one location during the regular business hours, and those carriers that have Internet websites must post this information on-line in a timely an easily accessible manner with regular updates. The Order adopts the requirement that carriers update their internet websites within twenty- four hours and update public information sites within five days of the effective date of a change in the rates, terms, or conditions of a detariffed service. Carriers must inform the public that this information is available when responding to consumer inquiries or complaints and specify the manner in which consumers may obtain the information. Carriers must indicate on the title or first page of their cancelled tariffs, the address of their website and of the pubic information site. Proprietary information that a carrier would not disclose in a public tariff need not be disclosed on-line or elsewhere.

11. The Order required non-dominant carriers to maintain price and service information regarding all of their international interexchange offers and be able to submit this information within ten business days to the Commission upon request. Such price and service information will include the information disclosed to the public, in addition to supporting information regarding the rates, terms, and conditions of the carriers' international interexchange offerings. Carriers should continue to keep the supporting information regarding services that is currently required under part 61 of the Commission's rules for carriers submitting tariffs. Non-dominant interexchange carriers are required to retain the information for a period of at least two years and six months following the data that a carrier ceases to provide services on such rates, terms and conditions. This requirement will assist the Commission in monitoring compliance with the Communications Act and the Commission's rules and will help address potential violations that may require enforcement action.

12. The Commission concluded that it is in the public interest to extend the policy of complete detariffing to all U.S. non-dominant carriers, including those regulated as dominant under Sec. 63.10 of the Commission's rules for a specific route because of an affiliation with a foreign carrier possessing market power.

13. The Commission also concluded that it is in the public interest to adopt a policy of complete detariffing for international interexchange services provided by CMRS providers for affiliate and unaffiliated routes. The Commission limited the application of the maintenance of information requirement to services provided by a CMRS carrier on those affiliated routes where the affiliated foreign carrier has market power and collects settlement payments from U.S. carriers. In addition, it is unnecessary to extend to CMRS providers the public disclosure requirements because such requirements are currently not applicable to the provision of domestic cervices by CMRS providers.

14. The Order amended Sec. 43.51 of the Commission's rules to clarify that the rule applies solely to U.S. carrier contracts for international common carrier service involving: (1) A foreign carrier that has market power in its foreign market, or (2) a U.S. carrier that has been classified as dominant on any route for any service included in the contract except for U.S. carriers classified as dominant due only to a foreign carrier affiliation. The Commission maintained its authority under section 211 to require the filing of copies of contracts when it is necessary for implementation and review of compliance with our rules and policies.

15. Finally, the Order adopted a transition period of nine-months from the effective date of this order to allow non-dominant carriers to cancel their tariffs for international interexchange services and become compliant with the rules contained herein. The Commission will not allow the filing of new or revised contract tariffs or other long- term arrangements for international interexchange services during the transition period. The Commission delegated to the International Bureau the authority to address the other transition issues related to international detariffing that may arise when the rules become effective.

    Procedural Matters

16. Final Regulatory Flexibility Certification. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that a regulatory flexibility analysis be prepared for rulemaking proceedings, unless the agency certifies that ``the rule will not have a significant economic impact on a substantial number of small entities.'' The RFA generally defines the term ``small entity'' as having the same meaning as the terms ``small business,'' ``small organization,'' and ``small governmental jurisdiction.'' In addition, the term ``small business'' has the same meaning as the term ``small business concern'' under the Small Business Act.'' A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). An Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The Final Regulatory Flexibility Certification is attached as Attachment A.

17. Paperwork Reduction Act. The Commission, as part of its continuing effort to reduce paperwork burden, invites the general pubic and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be submit to

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    any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a valid control number. This document contains new or modified information collections subject to the PRA. It will be submitted to the Office of Management and Budget (OMB) for review under the emergency processing provisions of the PRA. The Commission as part of its continuing effort to reduce paperwork burdens, invites the general public to comment on the information collection(s) contained in this Order as required by the PRA. Comments on emergency request for approval of information collections are due on or before April 11, 2001. Public and agency comments on the regular request for approval of the information collections are due on or before May 29, 2001. Comments should address the following: (a) Whether the new or modified collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

    OMB Control Number: 3060-NEW.

    Title: Policy and Rules Concerning the International Interexchange Marketplace.

    Form Number: N/A.

    Type of Review: New Collection.

    Respondents: Business and other for-profit entities.

    Number of Respondents: 1,006.

    Number of Responses: 202.

    Estimated Time Per Response: For part 61 filings, we estimate 10.5 hours per response. For Sec. 43.10-11, we estimate 3 hours. For Sec. 43.51 filings, we estimate 5 hours per response.

    Frequency of Response: On Occasion.

    Total Annual Burden: 10,500 hours.

    Total Annual Costs: $84,000.

    Needs and Uses: The information will be used by the public and the Commission to determine whether the rates, terms and conditions of service offered are just and reasonable as the Act requires. The information will be used by the Commission to assist the Commission in addressing potential violations of the Communications Act and the Commission's rules, which may require enforcement action. Also, the information will be used by other carriers and the Commission to guard against anticompetitive activities by U.S. and foreign carriers.

    Ordering Clauses

18. Accordingly, It is Ordered, that, pursuant to sections 1-4, 10, 11, 201-205, 211, 218, 220, 226, 303(g), 303(r) and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 160, 161, 201-205, 211, 218, 220, 226, 303(g), 303(r) and 332 the Report and Order is Adopted.

19. It is Ordered that, the Commission's Consumer Information Bureau, Reference Information Center shall send a copy of this Report and Order, including the final regulatory flexibility analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

20. It is Further Ordered that, the policies, rules and requirements established in this decision shall take effect thirty days after publication in the Federal Register or in accordance with the requirements of 5 U.S.C. 801 (a)(3) and 44 U.S.C. 3507.

    List of Subjects

    47 CFR Part 0

    Reporting and Recordkeeping requirements.

    47 CFR Part 20

    Communications common carriers.

    47 CFR Parts 42, 43, 61, 63, and 64

    Communications common carriers, Reporting and recordkeeping requirements.

    Federal Communications Commission. LaVera F. Marshall, Chief, Agenda Group.

    Attachment A

1. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that a regulatory flexibility analysis be prepared for rulemaking proceedings, unless the agency certifies that ``the rule will not have a significant economic impact on a substantial number of small entities.'' The RFA generally defines the term ``small entity'' as having the same meaning as the terms ``small business,'' ``small organization,'' and ``small governmental jurisdiction.'' In addition, the term ``small business'' has the same meaning as the term ``small business concern'' under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). An Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The one comment received on the IRFA is discussed below.

2. There have been dramatic changes in the market for international interexchange services due to the increase in privatization and liberalization of foreign markets, the execution of the WTO Basic Telecom Agreement, the decrease in settlement rates, and the increase in competition in the U.S. international services market. These changes have resulted in a substantial increase in the level of competition in the international interexchange services marketplace. Therefore, we believe it is no longer necessary to require tariffs for international interexchange services under section 203 of the Act, except for carriers classified as dominant for particular services on particular routes for reasons other than a foreign carrier affiliation under Sec. 63.10 of the rules. The Commission concludes that detariffing international interexchange services will serve to promote further the pro-competitive goals of the 1996 Telecommunications Act and foster increased competition. The Order requires complete or mandatory detariffing, with limited exceptions, for the international interexchange services provided by non-dominant carriers. The rules and policies contained in the Order apply to all carriers providing international common carrier service pursuant to section 214 of the Act

3. We believe that this Order will reduce carriers' filing costs. Although eliminating the filing of tariffs with the Commission, the Order does require that non-dominant interexchange carriers make information available to the public concerning current rates, terms, and conditions for all international interexchange services, in at least one location during regular business hours. Carriers that have Internet websites also must post this information on-line. The Order also requires that non-dominant international carriers, with the exception of most commercial mobile service providers, maintain price and service information regarding all of their international service offerings. This price and service information should include the information covered by the public disclosure requirement as well as supporting documents for the rates, terms and conditions of the offerings. The Order does not standardize the maintenance of information and public disclosure requirements so that carriers may maintain and disclose their rate information in a manner that is consistent with those business practices. These public disclosure and maintenance requirements are nominal because the information is currently

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   maintained by all carriers, including small entities, in the normal course of business; and therefore, do not impose a significant economic impact on these small entities.

4. In addition, the Order reduces the filing of carrier-to-carrier contracts contained in Sec. 43.51. The Order clarifies that Sec. 43.51 applies solely to U.S. carrier contracts for international common carrier service involving: (1) A foreign carrier that has market power in its foreign market, or (2) a U.S. carrier that has been classified as dominant, for any service, on any route included in the contract, except for U.S. carriers classified as dominant due only to a foreign carrier affiliation. The Order eliminates the current requirement in Sec. 43.51(a)(3) that carriers file contracts related to rights granted by foreign governments, and stipulates that the Commission may obtain contracts and seek remedies against improper activity through the section 208 complaint process initiated by either a competitor or the Commission. These modifications to the rules eliminate filing requirements on small entities and therefore, do not pose a significant economic impact on such entities.

5. The Commission has identified instances when tariffs will be permitted. The Commission's rules will permit carriers, including small entities, to file tariffs for their services with respect to international interexchange direct-dial services initiated by dialing a carrier's access code; and international interexchange services provided during the initial forty-five days of service or until there is a written contract between the carrier and the customer, but in no event shall the carrier provide service to its customer pursuant to tariff for more than forty-five days. The Order also adopts permissive detariffing for those ``on-demand'' mobile satellite services (MSS) services for which customers have not entered into pre-existing service contracts designating a particular provider. Finally, the Order also adopts permissive detariffing for international inbound collect calls. Carriers that permissively file tariffs under the Commission's rules will not be required to file information in addition to what is currently required. Therefore, these rules do not increase burdens on small entities, nor do they create a significant economic impact.

6. Therefore, we certify that none of the requirements of the Order will have a significant economic impact on a substantial number of small entities.

7. Only one commenter, Global Telecompetition Consultants, Inc. (GTC), addresses the issue of the RFA. GTC argues that the Commission did not perform the proper analysis in the RFA contained in the prior domestic detariffing proceeding. GTC raises this issue in this international detariffing proceeding because the international detariffing NPRM relies on the principles adopted in the domestic detariffing proceeding.

8. GTC's arguments focus on the ``filed-rate'' doctrine. GTC construes the Commission's statements, both in the domestic proceeding and in the international detariffing NPRM, that complete detariffing will eliminate the possible invocation of the ``filed-rate'' doctrine, as ``doing away with'' the filedrate doctrine. GTC argues that detariffing, whether domestic or international, is not equivalent to the abolition of the ``filed-rate'' doctrine, which is a judicially- created doctrine that the Commission cannot overturn. Thus, GTC claims that the Commission exceeded its jurisdiction and acted arbitrarily and capriciously in its analysis of how complete detariffing would eliminate the ``filed-rate'' doctrine. Further, GTC claims that the Commission violated the RFA by engaging in a perfunctionary analysis of complete detariffing's effect on the ``filed-rate'' doctrine and how its elimination of the doctrine would affect small carriers. GTC does not, however, cite to any specific harms caused small carriers from either domestic or international detariffing.

9. We disagree with GTC's argument that, by ordering complete detariffing, the Commission has purported to ``overturn'' a judicial doctrine. Rather than ``doing away with'' the filed-rate doctrine, the Commission in the domestic and international proceedings has simply exercised its forbearance authority granted in section 10 of the Act. Congress expressly empowered the Commission to forbear in certain circumstances from the statutory provisions of the Act. The Commission's statutory authority in section 10 to forbear from applying section 203 of the Act and to prohibit the filing of tariffs has been upheld by the U.S. Court of Appeals for the D.C. Circuit. Moreover, commenters concur that, in light of the D.C. Circuit's ruling, the Commission has the authority to require international carriers to cancel their tariffs. As the Commission explained in the domestic proceeding, the ``filed-rate'' doctrine has been applied to the rates, terms, and conditions of services specified in tariffs that are ``duly filed'' with the Commission in accordance with section 203 of the Act. Therefore, in the context of complete detariffing, if the Commission prohibits the filing of tariffs under section 10, there are no tariffs ``duly filed'' with the Commission and carriers have no opportunity to invoke the ``filed-rate'' doctrine. Because we reject GTC's interpretation of the Commission's action, we also dismiss GTC's argument that we have engaged in arbitrary and capricious decisionmaking in proposing to detariff international services.

10. We further note that, although there are similar policy rationales for detariffing domestic and international interexchange services, the Commission developed an independent record for detariffing international interexchange services in this proceeding. Thus, the Commission does not rely on the analysis contained in the domestic detariffing proceeding, but rather analyzes the full impact of the policies contained in this Order on all parties including small businesses. As noted above, the Commission incorporated an IRFA in the NPRM in this proceeding. The Commission tentatively concluded in the IRFA that its detariffing proposals were the least burdensome alternatives on small entities and that eliminating the tariff requirement would reduce administrative costs to all entities, including small entities. The Commission sought comment on those tentative conclusions. In this Order, we affirm the tentative conclusions in the NPRM and determine that complete detariffing will permit all carriers, including small carriers, to have the flexibility necessary to respond to dynamic price and service changes in the marketplace and will best protect consumers from the rates, terms and conditions that violate the Communications Act.

11. Report to Congress: The Commission will send a copy of the Order, including a copy of the Final Regulatory Flexibility Certification, in a report to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. In addition, the Commission will send a copy of the Order, including a copy of the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the SBA. A copy of the Order and Final Regulatory Flexibility Certification will also be published in the Federal Register.

    Rule Changes

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 0, 20, 42, 43, 61, 63 and 64 as follows:

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    PART 0--COMMISSION ORGANIZATION

1. The authority citation for part 0 continues to read as follows:

   Authority: Secs. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155.

2. Section 0.457 is amended by revising paragraph (d)(1)(vi) to read as follows:

   Sec. 0. 457 Records not routinely available for public inspection.

   * * * * *

   (d) * * *

   (1) * * *

   (vi) The rates, terms and conditions in any agreement between a U.S. carrier and a foreign carrier that govern the settlement of U.S. international traffic, including the method for allocating return traffic, if the U.S. international route is exempt from the international settlements policy under Sec. 43.51(e)(3) of this Chapter. * * * * *

   PART 20--COMMERCIAL MOBILE RADIO SERVICES

3. The authority citation for part 20 continues to read as follows:

   Authority: 47 U.S.C. 154, 160, 251-254, 303, and 332 unless otherwise noted.

4. Section 20.15 is amended by revising paragraphs (c) and (d) to read as follows:

   Sec. 20.15 Requirements under Title II of the Communications Act.

   * * * * *

   (c) Commercial mobile radio service providers shall not file tariffs for international and interstate service to their customers, interstate access service, or international and interstate operator service. Sections 1.771 through 1.773 and part 61 of this chapter are not applicable to international and interstate services provided by commercial mobile radio service providers. Commercial mobile radio service providers shall cancel tariffs for international and interstate service to their customers, interstate access service, and international and interstate operator service.

   (d) Except as specified as in paragraphs (d)(1) and (2), nothing in this section shall be construed to modify the Commission's rules and policies on the provision of international service under part 63 of this chapter.

   (1) Notwithstanding the provisions of Sec. 63.21(c) of this chapter, a commercial mobile radio service provider is not required to comply with Sec. 42.10 of this chapter.

   (2) A commercial mobile radio service (CMRS) provider that is classified as dominant under Sec. 63.10 of this chapter due to an affiliation with a foreign carrier is required to comply with Sec. 42.11 of this chapter if the affiliated foreign carrier collects settlement payments from U.S. carriers for terminating U.S. international switched traffic at the foreign end of the route. Such a CMRS provider is not required to comply with Sec. 42.11, however, if it provides service on the affiliated route solely through the resale of an unaffiliated facilities-based provider's international switched services.

   (3) For purposes of paragraphs (d)(1) and (2) of this section, affiliated and foreign carrier are defined in Sec. 63.09 of this Chapter. * * * * *

   PART 42--PRESERVATION OF RECORDS OF COMMUNICATIONS COMMON CARRIERS

5. The authority citation for part 42 continues to read as follows:

   Authority: Sec. 4(i), 48 Stat. 1066, as amended, 47 U.S.C. 154(i). Interprets or applies secs. 219 and 220, 48 Stat. 1077-78, 47 U.S.C. 219, 220.

6. Section 42.10 is amended by revising paragraph (a) to read as follows:

   Sec. 42.10 Public availability of information concerning interexchange services.

   (a) A nondominant interexchange carrier (IXC) shall make available to any member of the public, in at least one location, during regular business hours, information concerning its current rates, terms and conditions for all of its international and interstate, domestic, interexchange services. Such information shall be made available in an easy to understand format and in a timely manner. Following an inquiry or complaint from the public concerning rates, terms and conditions for such services, a carrier shall specify that such information is available and the manner in which the public may obtain the information. * * * * *

7. Section 42.11 is amended by revising paragraph (a) to read as follows:

   Sec. 42.11 Retention of information concerning detariffed interexchange services.

   (a) A nondominant IXC shall maintain, for submission to the Commission and to state regulatory commissions upon request, price and service information regarding all of the carrier's international and interstate, domestic, interexchange service offerings. A commercial mobile radio service (CMRS) provider shall maintain such price and service information only about its international common carrier service offerings and only for those routes on which the CMRS provider is classified as dominant under Sec. 63.10 of this Chapter due to an affiliation with a foreign carrier that collects settlement payments from U.S. carriers for terminating U.S. international switched traffic at the foreign end of the route. Such a CMRS provider is not required to maintain its price and service information, however, on any such affiliated route if it provides service on that route solely through the resale of an unaffiliated facilities-based provider's international switched services. The price and service information maintained for purposes of this paragraph shall include documents supporting the rates, terms, and conditions of the carrier's international and interstate, domestic, interexchange offerings. The information maintained pursuant to this section shall be maintained in a manner that allows the carrier to produce such records within ten business days. For purposes of this paragraph, affiliated and foreign carrier are defined in Sec. 63.09 of this Chapter. * * * * *

   PART 43--REPORTS OF COMMUNICATION COMMON CARRIERS AND CERTAIN AFFILIATES

8. The authority citation for part 43 continues to read as follows:

   Authority: 47 U.S.C. 154; Telecommunications Act of 1996, Pub. L. 104-104, secs. 402(b)(2)(B), (c), 110 Stat. 56 (1996) as amended unless otherwise noted. 47 U.S.C. 211, 219, 220 as amended.

9. Section 43.51 is revised to read as follows:

   Sec. 43.51 Contracts and concessions.

   (a) (1) Any communication common carrier described in paragraph (b) of this section must file with the Commission, within thirty (30) days of execution, a copy of each contract, agreement, concession, license, authorization, operating agreement or other arrangement to which it is a party and amendments thereto with respect to the following:

   (i) The exchange of services; and,

   (ii) The interchange or routing of traffic and matters concerning rates, accounting rates, division of tolls, or the basis of settlement of traffic balances, except as provided in paragraph (c) of this section.

   (2) If the contract, agreement, concession, license, authorization, operating agreement or other arrangement and amendments thereto is

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   made other than in writing, a certified statement covering all details thereof must be filedby at least one of the parties to the agreement. Each other party to the agreement which is also subject to these provisions may, in lieu of also filing a copy of the agreement, file a certified statement referencing the fileddocument. The Commission may, at any time and upon reasonable request, require any communication common carrier not subject to the provisions of this section to submit the documents referenced in this section.

   (b) The following communication common carriers must comply with the requirements of paragraph (a) of this section:

   (1) A carrier that is engaged in domestic communications and has not been classified as non-dominant pursuant to Sec. 61.3 of this Chapter,

   (2) A carrier, other than a provider of commercial mobile radio services, that is engaged in foreign communications and enters into a contract, agreement, concession, license, authorization, operating agreement or other arrangement and amendments thereto with a foreign carrier that does not qualify for the presumption, set forth in Note 3 to this section, that it lacks market power on the foreign end of one or more of the international routes included in the contract, or

   (3) A carrier that has been classified as dominant for any service on any of the international routes included in the contract, except for a carrier classified as dominant on a particular route due only to a foreign carrier affiliation under Sec. 63.10 of this chapter.

   (c) With respect to contracts coming within the scope of paragraph (a)(1)(ii) of this section between subject telephone carriers and connecting carriers, except those contracts related to communications with foreign or overseas points, such documents shall not be filedwith the Commission; but each subject telephone carrier shall maintain a copy of such contracts to which it is a party in appropriate files at a central location upon its premises, copies of which shall be readily accessible to Commission staff and members of the public upon reasonable request therefor; and upon request by the Commission, a subject telephone carrier shall promptly forward individual contracts to the Commission.

   (d) Any U.S. carrier that interconnects an international private line to the U.S. public switched network, at its switch, including any switch in which the carrier obtains capacity either through lease or otherwise, shall file annually with the Chief of the International Bureau a certified statement containing the number and type (e.g., a 64-kbps circuit) of private lines interconnected in such a manner. The certified statement shall specify the number and type of interconnected private lines on a country specific basis. The identity of the customer need not be reported, and the Commission will treat the country of origin information as confidential. Carriers need not file their contracts for such interconnections, unless they are specifically requested to do so. These reports shall be filedon a consolidated basis on February 1 (covering international private lines interconnected during the preceding January 1 to December 31 period) of each year. International private lines to countries for which the Commission has authorized the provision of switched basic services over private lines at any time during a particular reporting period are exempt from this requirement.

   (e) International settlements policy. (1) Except as provided in paragraph (e)(3) of this section, if a carrier files an operating or other agreement with a foreign carrier pursuant to paragraph (a) of this section to begin providing switched voice, telex, telegraph, or packet-switched service between the United States and a foreign point and the terms and conditions of such agreement relating to the exchange of services, interchange or routing of traffic and matters concerning rates, accounting rates, division of tolls, the allocation of return traffic, or the basis of settlement of traffic balances, are not identical to the equivalent terms and conditions in the operating agreement of another carrier providing the same or similar service between the United States and the same foreign point, the carrier must also file with the International Bureau a modification request under Sec. 64.1001 of this chapter. Unless a carrier is providing switched voice, telex, telegraph, or packet-switched service on a route that is exempt from the international settlements policy, the carrier shall not bargain for or agree to accept more than its proportionate share of return traffic.

   (2) Except as provided in paragraph (e)(3) of this section, if a carrier files an amendment, pursuant to paragraph (a) of this section, to an existing operating or other agreement with a foreign carrier to provide switched voice, telex, telegraph, or packet-switched service between the United States and a foreign point, and other carriers provide the same or similar service to the same foreign point, and the amendment relates to the exchange of services, interchange or routing of traffic and matters concerning rates, accounting rates, division of tolls, the allocation of return traffic, or the basis of settlement of traffic balances, the carrier must also file with the International Bureau a modification request under Sec. 64.1001 of this Chapter.

   (3) A carrier that enters into an operating or other agreement with a foreign carrier for the provision of a common carrier service on an international route is not subject to the requirements of paragraphs (e)(1) and (2) of this section if the route appears on the Commission's list of international routes that the Commission has exempted from the international settlements policy.

   Note to Sec. 43.51(e)(3): The Commission's list of international routes exempted from the international settlements policy is available from the International Bureau's World Wide Web site at http://www.fcc.gov/ib. A party that seeks to add a foreign market to the list of markets that are exempt from the international settlements policy must show that U.S. carriers are able to terminate at least 50 percent of U.S.-billed traffic in the foreign market at rates that are at least 25 percent below the benchmark settlement rate adopted for that country in IB Docket No. 96-261, Report and Order, 12 FCC Rcd 19,806, 62 FR 45758, Aug. 29, 1997. A party that seeks to remove a foreign market from the list of markets that are exempt from the international settlements policy must show that U.S. carriers are unable to terminate at least 50 percent of U.S.-billed traffic in the foreign market at rates that are at least 25 percent below the benchmark settlement rate adopted for that country in IB Docket No. 96-261.

   (f) Confidential treatment. (1) A carrier providing service on an international route that is exempt from the international settlements policy under paragraph (e)(3) of this section, but that is otherwise required by paragraphs (a) and (b) of this section to file a contract covering service on that route with the Commission, may request confidential treatment under Sec. 0.457 of this Chapter for the rates, terms and conditions that govern the settlement of U.S. international traffic.

   (2) Carriers requesting confidential treatment under this paragraph must include the information specified in Sec. 64.1001(c) of this Chapter. Such filings shall be made with the Commission, with a copy to the Chief, International Bureau. The transmittal letter accompanying the confidential filing shall clearly identify the filing as responsive to Sec. 43.51(f).

   Note 1 to Sec. 43.51: For purposes of this section, affiliated and foreign carrier are defined in Sec. 63.09 of this chapter.

   Note 2 to Sec. 43.51: To the extent that a foreign government provides telecommunications services directly through

   [[Page 16881]]

   a governmental organization, body or agency, it shall be treated as a foreign carrier for the purposes of this section.

   Note 3 to Sec. 43.51: Carriers shall rely on the Commission's list of foreign carriers that do not qualify for the presumption that they lack market power in particular foreign points for purposes of determining which of their foreign carrier contracts are subject to the contract filing requirements set forth in this section. The Commission's list of foreign carriers that do not qualify for the presumption that they lack market power in particular foreign points is available from the International Bureau's World Wide Web site at http://www.fcc.gov/ib. The Commission will include on the list of foreign carriers that do not qualify for the presumption that they lack market power in particular foreign points any foreign carrier that has 50 percent or more market share in the international transport or local access markets of a foreign point. A party that seeks to remove such a carrier from the Commission's list bears the burden of submitting information to the Commission sufficient to demonstrate that the foreign carrier lacks 50 percent market share in the international transport and local access markets on the foreign end of the route or that it nevertheless lacks sufficient market power on the foreign end of the route to affect competition adversely in the U.S. market. A party that seeks to add a carrier to the Commission's list bears the burden of submitting information to the Commission sufficient to demonstrate that the foreign carrier has 50 percent or more market share in the international transport or local access markets on the foreign end of the route or that it nevertheless has sufficient market power to affect competition adversely in the U.S. market.

   PART 61--TARIFFS

10. The authority citation for part 61 continues to read as follows:

    Authority: Secs. 1, 4(i), 4(j), 201-205, and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 201-205, and 403 unless otherwise noted.

11. Section 61.3 is amended by revising paragraph (y) to read as follows:

    Sec. 61.3 Definitions.

    * * * * *

    (y) Non-dominant carrier. A carrier not found to be dominant. The nondominant status of providers of international interexchange services for purposes of this subpart is not affected by a carrier's classification as dominant under Sec. 63.10 of this chapter. * * * * *

12. Section 61.19 is revised to read as follows:

    Sec. 61.19 Detariffing of international and interstate, domestic interexchange services.

    (a) Except as otherwise provided in paragraphs (b) through (e) of this section, or by Commission order, carriers that are nondominant in the provision of international and interstate, domestic interexchange services shall not file tariffs for such services.

    (b) Carriers that are nondominant in the provision of international and domestic, interstate, interexchange services are permitted to file tariffs for dial-around 1+ services. For the purposes of this paragraph, dial-around 1+ calls are those calls made by accessing the interexchange carrier through the use of that carrier's carrier access code.

    (c) Carriers that are nondominant in the provision of international and domestic, interstate, interexchange services are permitted to file a tariff for such services applicable to those customers who contact the local exchange carrier to designate an interexchange carrier or to initiate a change with respect to their primary interexchange carrier. Such tariff will enable the interexchange carrier to provide service to the customer until the interexchange carrier and the customer consummate a written agreement, but in no event shall the interexchange carrier provide service to its customer pursuant to such tariff for more than 45 days.

    (d) Carriers that are nondominant in the provision of international inbound collect calls to the United States are permitted to file a tariff for such services.

    (e) Carriers that are nondominant in the provision of ``on-demand'' Mobile Satellite Services are permitted to file a tariff for such services applicable to those customers that have not entered into pre- existing service contracts designating a specific provider for such services.

13. Section 61.28 is revised to read as follows:

    Sec. 61.28 International dominant carrier tariff filing requirements.

    (a) Any carrier classified as dominant for the provision of particular international communications services on a particular route for any reason other than a foreign carrier affiliation under Sec. 63.10 of this chapter shall file tariffs for those services pursuant to the notice and cost support requirements for tariff filings of dominant domestic carriers, as set forth in subpart E of this part.

    (b) Other than the notice and cost support requirements set forth in paragraph (a) of this section, all tariff filing requirements applicable to all carriers classified as dominant for the provision of particular international communications services on a particular route for any reason other than a foreign carrier affiliation pursuant to Sec. 63.10 of this chapter are set forth in subpart C of this part.

    Sec. 61.74 [Amended]

14. Section 61.74 is amended by removing paragraph (d) and redesignating paragraphs (e) and (f) as paragraphs (d) and (e).

    PART 63--EXTENSION OF LINES, NEW LINES AND DISCONTINUANCE, REDUCTION, OUTAGE AND IMPAIRMENT OF SERVICE BY COMMON CARRIERS; AND GRANTS OF RECOGNIZED PRIVATE OPERATING AGENCY STATUS

15. The authority citation for part 63 continues to read as follows:

    Authority: Secs. 1, 4(i), 4(j), 10, 11, 201-205, 214, 218, 403 and 651 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 160, 201-205, 214, 218, 403, and 571, unless otherwise noted.

16. Section 63.10 is amended by removing paragraph (c)(1) and redesignating paragraphs (c)(2) through (6) as paragraphs (c)(1) through (5).

17. Section 63.14 is amended by revising paragraph (c) to read as follows:

    Sec. 63.14 Prohibition on agreeing to accept special concessions.

    * * * * *

    (c) This section shall not apply to the rates, terms and conditions in an agreement between a U.S. carrier and a foreign carrier that govern the settlement of international traffic, including the method for allocating return traffic, if the international route is exempt from the international settlements policy under Sec. 43.51(e)(3) of this chapter.

18. Section 63.17 is amended by revising paragraph (b)(3) to read as follows:

    Sec. 63.17 Special provisions for U.S. international common carriers.

    * * * * *

    (b) * * *

    (3) Authorized carriers filing tariffs pursuant to Secs. 61.19 or 61.28 of this chapter that route U.S.-billed traffic via switched hubbing shall tariff their service on a ``through'' basis between the United States and the ultimate point of origination or termination; * * * * *

19. Section 63.21 is amended by revising paragraphs (b) and (c) to read as follows:

    Sec. 63.21 Conditions applicable to all international Section 214 authorizations.

    * * * * *

    [[Page 16882]]

    (b) Carriers must file copies of operating agreements entered into with their foreign correspondents as specified in Sec. 43.51 of this chapter and shall otherwise comply with the filing requirements contained in that section.

    (c) Carriers regulated as dominant for the provision of a particular international communications service on a particular route for any reason other than a foreign carrier affiliation under Sec. 63.10 shall file tariffs pursuant to Section 203 of the Communications Act, 47 U.S.C. 203, and part 61 of this chapter. Except as specified in Sec. 20.15(d) of this chapter with respect to commercial mobile radio service providers, carriers regulated as non- dominant, as defined in Sec. 61.3 of this chapter, and providing detariffed international services pursuant to Sec. 61.19 of this chapter must comply with all applicable public disclosure and maintenance of information requirements in Secs. 42.10 and 42.11 of this chapter. * * * * *

    PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

20. The authority citation for part 64 continues to read as follows:

    Authority: 47 U.S.C. 154, 47 U.S.C. 225, 47 U.S.C. 251(e)(1), 151, 154, 201, 202, 205, 218-220, 254, 302, 303, and 337 unless otherwise noted.

21. Section 64.1001 is amended by revising paragraph (b) to read as follows:

    Sec. 64.1001 International settlements policy and modification requests.

    * * * * *

    (b) If the international settlement arrangement in the operating agreement or amendment referred to in Sec. 43.51(e)(1) or (e)(2) of this chapter differs from the arrangement in effect in the operating agreement of another carrier providing service to or from the same foreign point, the carrier must file a modification request under this section unless the international route is exempt from the international settlements policy under Sec. 43.51(e)(3) of this chapter. * * * * *

    [FR Doc. 01-7708Filed3-27-01; 8:45 am]

    BILLING CODE 6712-01-U