[Federal Register Volume 64, Number 169 (Wednesday, September 1, 1999)]
[Rules and Regulations]
[Pages 47699-47702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22722]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 63

[IB Docket No. 96-261; FCC 99-124]


International Settlement Rates, Report and Order on 
Reconsideration and Order Lifting Stay

AGENCY: Federal Communications Commission.

ACTION: Final rule; reconsideration.

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SUMMARY: This document affirms a previous finding that the Commission 
has authority under the Communications Act to establish settlement rate 
benchmarks and to require U.S. carriers to negotiate settlement rates 
that comply with those benchmarks. In addition, the Commission amended 
the Section 214 condition for facilities-based service to affiliated 
markets, so that it applies only to U.S. affiliates of carriers that 
have market power in the destination country. The Commission took this 
action in response to petitions for reconsideration filed in this 
proceeding.

DATES: Effective October 1, 1999.

FOR FURTHER INFORMATION CONTACT: Lisa Choi, Telecommunications 
Division, International Bureau, (202) 418-1480.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order on Reconsideration and Order Lifting Stay, FCC 99-124, 
adopted on May 28, 1999, and released on June 11, 1999. The full text 
of this Order is available for inspection and copying during normal 
business hours in the FCC Reference Room (Room CY-A257) of the Federal 
Communications Commission, 445 12th Street, SW, Washington, D.C. 20554. 
The document is also available for download over the internet at http:/
/www.fcc.gov/bureaus/international/orders/1999/fcc99124.wp. The 
complete text of this Order also may be purchased from the Commission's 
copy contractor, International Transcription Service, Inc., 1231 20th 
Street, N.W., Washington, D.C. 20036, (202) 857-3800.

[[Page 47700]]

Summary of Report and Order on Reconsideration and Order Lifting 
Stay

    1. In the Benchmarks Order (62 FR 45758, August 29, 1997), the 
Commission established benchmarks that govern the international 
settlement rates that U.S. carriers may pay foreign carriers to 
terminate international traffic originating in the United States. In 
the Final Rule on reconsideration, the Commission upheld its Benchmarks 
Order with one modification.
    2. In the Benchmarks Order, the Commission calculated the benchmark 
rates using foreign carriers' publicly available tariff rates and 
information published by the International Telecommunication Union 
(ITU). The Commission developed a methodology for calculating the 
benchmarks called the ``tariffed component price'' (TCP) methodology. 
It grouped countries by their level of economic development, using a 
World Bank and ITU classification scheme, and calculated benchmarks 
using the TCP methodology for each category. The benchmarks are: 
15 cents for upper income countries; 19 cents for upper-middle and 
lower-middle income countries; and 23 cents for lower income countries.
    3. The Commission established a transition schedule for U.S. 
carriers to negotiate settlement rates that comply with the benchmarks. 
The transition schedule is also based on level of economic development, 
with an additional category for countries with very low levels of 
telecommunications network development. Under the transition schedule, 
U.S. carriers are required to negotiate settlement rates that comply 
with the benchmarks according to the following schedule: one year from 
implementation of the Benchmarks Order for carriers in upper income 
countries; two years for carriers in upper-middle income countries; 
three years for carriers in lower-middle income countries; four years 
for carriers in lower income countries; and five years for carriers in 
countries with teledensity (lines per 100 inhabitants) less than one.
    4. The Philippines Parties, AT&T, and MCI filed petitions 
requesting reconsideration or clarification of various aspects of the 
Benchmarks Order. The Philippines Parties asserted that the benchmark 
rules violate the Due Process Clause of the Fifth Amendment and that 
the Commission does not have jurisdiction to adopt benchmark rates. In 
the Final Order on Reconsideration, the Commission affirmed its 
conclusion in the Benchmarks Order that it has jurisdiction to adopt 
settlement rate benchmarks under the Communications Act and relevant 
case law. The Commission determined that above-cost settlement rates 
paid by U.S. carriers to terminate international traffic are neither 
just nor reasonable, and it acted pursuant to its statutory authority 
in Section 201(b) of the Communications Act to prohibit U.S. carriers 
from continuing to pay such charges. The Commission also concluded that 
its benchmarks are consistent with international obligations of the 
United States.
    5. In the final order on reconsideration, the Commission disagreed 
with the Philippines Parties and found that the complaint procedures 
satisfy whatever process rights a foreign correspondent may have by 
affording them an opportunity to participate in the proceedings.
    6. The Commission adopted two authorization conditions in the 
Benchmarks Order, one that applies to authorizations to provide 
facilities-based service to affiliated markets and one that applies to 
all authorizations to provide switched services over facilities-based 
or resold international private lines. These two authorization 
conditions are intended to address different competitive concerns.
    7. The condition for facilities-based service to affiliated markets 
addresses the potential for a carrier to engage in a predatory price 
squeeze, i.e., to price below the level of its imputed costs when 
providing service from the United States to a foreign market where it 
has an affiliate. In the Benchmarks Order, the Commission found that a 
U.S.-licensed carrier has both the ability and incentive to engage in a 
price squeeze when it provides facilities-based service to a market in 
which its affiliated foreign carrier provides the terminating service 
and collects above-cost settlement rates. The Commission's facilities-
based condition addresses the concern about price squeeze behavior by 
requiring that a carrier's settlement rates be at or below the relevant 
benchmark before its U.S.-licensed affiliate may provide facilities-
based service on the affiliated route. This condition substantially 
reduces the above-cost settlement rates that could be used to execute a 
price squeeze on affiliated routes. However, the Commission recognized 
in the Benchmarks Order that the facilities-based condition does not 
completely eliminate the incentives or the ability of a carrier to 
execute a price squeeze because the settlement rate benchmarks are 
still above-cost. The Commission therefore decided that it will take 
enforcement action if, after the U.S.-licensed carrier has commenced 
service to the affiliated market, the Commission discovers that the 
carrier has attempted to execute a predatory price squeeze or engaged 
in other anticompetitive behavior that distorts market performance. 
That action may include a requirement that the foreign affiliate reduce 
its settlement rate for the route to a level at or below the best 
practices rate the Commission adopted in the Benchmarks Order, 8 cents, 
or a revocation of the U.S.-licensed carrier's authorization to serve 
the affiliated market. The Commission adopted a rebuttable presumption 
that a carrier has distorted market performance if any of the carrier's 
tariffed collection rates on the affiliated route are less than the 
carrier's average variable costs on that route. For purposes of this 
presumption, the Commission adopted a proxy for average variable costs 
that is equal to the carrier's net settlement rate plus any originating 
access charges.
    8. The Commission decided in the Benchmarks Order to apply the 
facilities-based condition to existing Section 214 authorization 
holders that serve affiliated markets (i.e., those that were authorized 
to provide service prior to the January 1, 1998 effective date of the 
Benchmarks Order). The Commission required that existing authorization 
holders comply with the condition by having their foreign affiliates 
negotiate with U.S. international carriers a settlement rate for 
affiliated routes that complies with the appropriate benchmark and is 
in effect within ninety days of the January 1, 1998 effective date. The 
Commission, subsequently, issued a temporary stay of the effectiveness 
of the condition for facilities-based service to affiliated markets as 
it applies to existing Section 214 authorization holders in a March 30, 
1998 Stay Order pending action on reconsideration.
    9. The condition for provision of switched services over private 
lines, also known as ISR, addresses the potential for ``one-way 
bypass'' of the settlements system to occur. To address the concern 
about one-way bypass, the Commission adopted an authorization condition 
that requires that at least 50 percent of the traffic on a route be 
settled at rates at or below the appropriate benchmark level before 
carriers may provide switched services over private lines. The 
Commission reasoned that, if settlement rates are closer to cost, the 
impact of one-way bypass on the level of U.S. settlement payments will 
be diminished. As with the condition for facilities-based service to 
affiliated markets, the Commission recognized that the condition for 
provision of switched services over

[[Page 47701]]

private lines does not completely eliminate the potential for one-way 
bypass to occur. The Commission, therefore, decided that it will take 
enforcement action if the Commission learns that one-way bypass has 
occurred. That enforcement action may include a requirement that 
carriers be prohibited from using their authorizations to provide 
switched services over private lines on a given route until settlement 
rates for at least half of the traffic on that route are at or below 
the best practice rate of 8 cents. It could also include a revocation 
of carriers' authorizations. The Commission adopted a test for 
determining when one-way bypass has occurred. Pursuant to that test, 
the Commission will presume that one-way bypass has occurred if the 
ratio of outbound to inbound settled traffic increases more than 10 
percent in two successive quarterly traffic measurement periods.
    10. In the Order on Reconsideration, the Commission declined to 
modify the benchmark conditions to require compliance with the best 
practice rate rather than the benchmark rates, as AT&T requested. The 
Commission concluded that the combination of this requirement and the 
tests to detect one-way bypass and price squeeze behavior is sufficient 
to prevent anticompetitive distortions in the U.S. market. The 
Commission also declined to revise the proxy for average variable costs 
for purposes of the Commission's test to detect price squeeze behavior. 
The Commission concluded that the more complex test AT&T urged it to 
adopt is not necessary for purposes of the test. The Commission's 
intent was to adopt a ``bright line'' test with a proxy for average 
variable costs that would allow either the Commission or other 
interested parties to identify readily whether a carrier is pricing its 
services at a predatory level. The Commission thus adopted a proxy for 
average variable costs that is based on publicly available data. The 
data necessary to calculate a U.S. carrier's net settlement rate are 
included in carrier's quarterly traffic reports and information on U.S. 
carrier's access charges is available in tariffs filed with the 
Commission and in the Commission's annual Monitoring Report. In 
contrast, the data necessary to identify all possible average variable 
costs will be in the hands of the carrier whose prices are at issue. 
Including all variable costs in the test, as AT&T requested, would 
defeat the purpose of applying a bright line test.
    11. In response to a petition by MCI, the Commission is persuaded 
that it should modify the condition for facilities-based service to 
affiliated markets to apply solely to U.S. carriers that are providing 
service on a route where they have an affiliate with market power. Upon 
review of the record, the Commission concluded that there is not a 
substantial threat of price squeeze behavior by an integrated carrier 
that lacks market power in the foreign market. As a result, the 
Commission will apply the condition for facilities-based service to 
affiliated markets solely to carriers that are providing service on a 
route where they have a foreign affiliate with market power.
    12. Given the decision to apply the condition for facilities based 
service to affiliate markets solely to carriers that are providing 
service on a route where they have an affiliate with market power, the 
Commission also decided to include the condition in the section of the 
Commission's rules that contains the dominant carrier safeguards, 
Sec. 63.10. In the Foreign Participation Order, the Commission 
concluded that it would streamline the Section 214 application of any 
applicant not otherwise eligible for streamlined processing so long as 
the applicant's affiliate is a foreign carrier in a WTO Member country 
and the applicant certifies that it will comply with the Commission's 
dominant carrier regulations. By our action in this Order, those 
regulations now include the condition for facilities-based service to 
affiliated markets.
    13. For purposes of determining which carriers must comply with the 
condition, for facilities-based service to affiliated markets, the 
Commission will apply the rebuttable presumption the Commission adopted 
in our Foreign Participation Order that foreign carriers with less than 
50 percent market share in each relevant market on the foreign end lack 
sufficient market power to affect competition adversely in the U.S. 
market. For purposes of the condition for facilities-based service to 
an affiliated market, the relevant market is international transport 
and facilities, including cable landing station access and backhaul 
facilities.
    14. The Commission also lifted its stay of the effectiveness of the 
condition for facilities-based service to affiliated markets as it 
applies to Section 214 authorization holders that were authorized to 
provide service prior to January 1, 1998. Pursuant to the Benchmarks 
Order, existing Section 214 authorization holders that serve affiliated 
markets would have been required to negotiate with U.S. international 
carriers a settlement rate for affiliated routes that complies with the 
appropriate benchmark within ninety days of January 1, 1998, if the 
Commission had not issued the Stay Order. In accordance with the Order 
on Reconsideration, only Section 214 authorization holders that are 
affiliated with a carrier that has market power in the foreign market 
must comply with the condition for facilities-based service to 
affiliated markets. The Commission will require such existing Section 
214 authorization holders to negotiate with U.S. international carriers 
a rate for terminating traffic for affiliated routes that complies with 
the appropriate benchmark and is in effect within thirty days of the 
effective date of the final rule on reconsideration.

Supplemental Final Regulatory Flexibility Analysis

    15. As required by the Regulatory Flexibility Act (RFA), an Initial 
Regulatory Flexibility Analysis (IRFA) was included in the Notice in IB 
Docket No. 96-261 (61 FR 68702 (December 30, 1996), and a Final 
Regulatory Flexibility Analysis (FRFA) was included in the Benchmarks 
Order. As required by the RFA, the Commission includes the FRFA 
contained in the Benchmarks Order as the Supplemental FRFA for this 
document. The Commission released a public notice announcing that the 
Supplemental FRFA is available to the public (see Public Notice, DA 99-
1655, released, August 18, 1999).

Ordering Clauses

    16. Accordingly, it is ordered, pursuant to Sections 1, 2, 4(i), 
5(c), 201, 211, 214 and 303(r) of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 152, 154(i), 155(c)(5), 201, 211, 214, and 
303(r), and Sec. 1.106 of the Commission's Rules, 47 CFR Part 1.106, 
that the AT&T Petition for Partial Reconsideration and the Petition for 
Reconsideration of the Philippines Parties are denied.
    17. It is further ordered that the MCI Telecommunication Corp. 
Petition for Clarification or Reconsideration is granted in part and 
denied in part.
    18. It is further ordered, pursuant to Sections 1 and 4(i) of the 
Communications Act, 47 U.S.C. 151 and 154(i), that the stay of the 
effectiveness of the condition for facilities-based service to 
affiliated markets as it applies to Section 214 authorization holders 
that were authorized to provide service prior to January 1, 1998, is 
lifted.
    19. It is further ordered, pursuant to Sections 1, 2, 4(i), 
5(c)(5), 201, 211, 214 and 303(r) of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 152, 154(i), 155(c)(5), 201, 211, 214, and 
303(r), that Part 63 of the Commission's rules, 47 CFR Part 63, is 
amended as set forth in the rule changes.

[[Page 47702]]

List of Subjects in 47 CFR Part 63

    Communications common carriers, Reporting and recordkeeping 
requirements.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR Part 63 as follows:

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

    1. The authority citation for Part 63 continues to read as follows:

    Authority: 47 U.S.C. 151, 154(i), 154(j), 160, 161, 201-205, 
218, 403, 533 unless otherwise noted.

    2. Section 63.10 is amended by adding paragraphs (c)(6) and (e) to 
read as follows:


Sec. 63.10  Regulatory classification of U.S. international carriers.

* * * * *
    (c)(6) If authorized to provide facilities-based service, comply 
with paragraph (e) of this section.
* * *
    (e) Except as otherwise ordered by the Commission, a carrier that 
is classified as dominant under this section for the provision of 
facilities-based services on a particular route and that is affiliated 
with a carrier that collects settlement payments for terminating U.S. 
international switched traffic at the foreign end of that route may not 
provide facilities-based service on that route unless the current rates 
the affiliate charges U.S. international carriers to terminate traffic 
are at or below the Commission's relevant benchmark adopted in IB 
Docket No. 96-261. See FCC 97-280 (12 FCC Rcd 19806 (1997) (62 FR 
45758, August 29, 1997)), (available at the FCC's Reference Operations 
Division, Washington, D.C. 20554, and on the FCC's World Wide Web Site 
at http://www.fcc.gov).

[FR Doc. 99-22722 Filed 8-31-99; 8:45 am]
BILLING CODE 6712-01-P