[Federal Register Volume 81, Number 43 (Friday, March 4, 2016)]
[Proposed Rules]
[Pages 11500-11502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04837]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 63

[IB Docket Nos. 11-80, 10-95, 05-254, RM-11322; FCC 16-13]


International Settlements Policy Reform

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, based on recent State Department guidance, 
the Federal Communications Commission (Commission) proposes to remove 
the nondiscrimination prong of the International Settlements Policy 
(ISP) on the U.S.-Cuba route and the nondiscrimination requirement 
condition placed on the waiver of benchmark settlements for the U.S.-
Cuba route by the TeleCuba Waiver Order. Removal of these 
nondiscrimination requirements would allow U.S. carriers to enter into 
individualized contracts with the Cuban carrier.

DATES: Submit comments on or before April 4, 2016, and replies on or 
before April 18, 2016.

ADDRESSES: You may submit comments, identified by Docket Nos. 11-80, 
10-95, 05-254 and RM-11322, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's ECFS Web site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
     People With Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email to [email protected], phone: 202-418-
0530 (voice), tty: 202-418-0432.
    For detailed instructions on submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: David Krech or Jodi Cooper, 
Telecommunications and Analysis Division, International Bureau, FCC, 
(202) 418-1480 or via email to [email protected], 
[email protected]. On PRA matters, contact Cathy Williams, Office of 
the Managing Director, FCC, (202) 418-2918 or via email to 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Further Notice of Proposed Rulemaking in IB Docket Nos. 11-80, 10-95, 
05-254 and RM-11322, FCC 16-13, adopted on February 10, 2016 and 
released on February 12, 2016. The full text of this document is 
available for inspection and copying during normal business hours in 
the FCC Reference Center, 445 12th Street SW., Washington, DC 20554. 
The document also is available for download over the Internet at 
https://apps.fcc.gov/edocs_public/attachmatch/FCC-16-13A1.pdf.

Comment Filing Procedures

    Pursuant to Sec. Sec.  1.415, 1.419, interested parties may file 
comments and reply comments on or before the dates indicated above. 
Comments may be filed using the Commission's Electronic Comment Filing 
System (ECFS). See Electronic Filing of Documents in Rulemaking 
Proceedings, 63 FR 24121 (1998).
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the Commission's ECFS Web site at 
http://apps.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. If more than one docket 
or rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number. Filings can be sent by hand or messenger delivery, 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail. All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours 
are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together 
with rubber bands or fasteners. Any envelopes and boxes must be 
disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street SW., Washington DC 20554.

Summary of Further Notice of Proposed Rulemaking

    1. The Further Notice of Proposed Rulemaking (FNPRM) proposes to 
remove the nondiscrimination

[[Page 11501]]

requirements from the U.S.-Cuba route. Recent policy guidance from the 
U.S. Department of State (State Department) recommends that the 
Commission discontinue application of the nondiscrimination 
requirements on the U.S.-Cuba route in light of the changes in U.S.-
Cuba relations. See Modification of Process Regarding the Licensing of 
Telecommunications Services Between the United States and Cuba, Public 
Notice, 30 FCC Rcd 12458 (IB 2015) (2015 Cuba Public Notice). 
Currently, under Commission policy and rules, the terms and conditions 
of any operating agreement to provide facilities-based switched voice 
service on the U.S.-Cuba route between a U.S. carrier and a carrier 
with market power in Cuba must be identical to the equivalent terms and 
conditions in the agreement of any other U.S. carrier providing the 
same or similar service between the United States and Cuba. The FNPRM 
seeks comment on the State Department's recommendation for removal of 
the nondiscrimination requirements based on the changes in U.S.-Cuba 
relations and whether such a Commission action would serve the public 
interest. Specifically, the FNPRM seeks comment on removing (1) the 
nondiscrimination prong of the International Settlements Policy (ISP), 
as codified in 47 CFR 63.22(f), and (2) the nondiscrimination 
requirement condition placed on the waiver of benchmark settlements by 
the TeleCuba Waiver Order. See IConnect Wholesale, Inc., d/b/a 
TeleCuba; Petition for Waiver of the International Settlements Policy 
and Benchmark Rate for Facilities-Based Telecommunications Services 
with Cuba, Memorandum Opinion and Order, 26 FCC Rcd 5217, 5228, para. 
31 (IB 2011) (TeleCuba Waiver Order).
    2. The FNPRM seeks comment on whether removal of these 
nondiscrimination requirements would serve the public interest, for 
example, by leading to more direct agreements between U.S. carriers and 
the Cuban carrier, ETECSA. In the 2012 ISP Reform Order, 78 FR 11109 
(Feb. 15, 2013), the Commission found that removal of the ISP on all 
routes (except the nondiscrimination prong on the U.S.-Cuba route) 
would provide U.S. carriers greater flexibility to negotiate lower 
settlement rates. See International Settlement Policy Reform et al., 
Report and Order, 27 FCC Rcd 15521 (2012) (2012 ISP Reform Order). Do 
commenters agree that circumstances have now changed sufficiently with 
respect to Cuba to anticipate that the removal of the nondiscrimination 
prong of the ISP on the U.S.-Cuba route will provide similar 
opportunities? More generally, comment is sought on whether removal of 
these nondiscrimination requirements may encourage competition on the 
U.S.-Cuba route. Would the ability of U.S. carriers to negotiate 
individualized operating agreements with ETECSA give U.S. carriers the 
ability to negotiate lower rates? Are there any concerns that removal 
of our nondiscrimination requirements would cause discrimination or 
threats of discrimination or other anticompetitive actions against U.S. 
carriers as a strategy to obtain pricing concessions regarding the 
exchange of traffic between the United States and Cuba?
    3. The FNPRM observes that the operation of the current benchmark 
settlement rate for telecommunications services between the United 
States and Cuba--which we are not proposing to change--will continue to 
provide a safeguard against anticompetitive actions against U.S. 
carriers. (The State Department recommends that the Commission continue 
to apply the benchmarks settlement policy on the U.S.-Cuba route, but 
continue to allow waivers of limited duration. See 2015 Cuba Public 
Notice, 30 FCC Rcd at 12461.) Although carriers may still obtain 
operating agreements above the benchmark rate, such agreements would 
require Commission grant of a waiver of the benchmark rate before they 
could go into effect, and, in considering the waiver, the Commission 
would have the opportunity to assess on a case-by-case basis whether 
allowing an above benchmark settlement rate without the protections of 
a nondiscrimination rule (with or without conditions) would serve the 
public interest. Comment is sought on these observations.
    4. Currently, any agreement with ETECSA is routinely made available 
for public inspection under the nondiscrimination requirement condition 
placed on the waiver of the benchmark settlements in the TeleCuba 
Waiver Order. TeleCuba Waiver Order, 26 FCC Rcd at 5228, para. 31. The 
FPRM seeks comment on whether, if the Commission is to remove the 
nondiscrimination requirement in the TeleCuba Waiver Order, it also 
should no longer consider operating agreements between a U.S. carrier 
and ETECSA to be routinely available for public inspection. In that 
waiver order, the International Bureau adopted other conditions that it 
believed would help ``balance the policy goals of reestablishing direct 
telecommunications links with Cuba by U.S. carriers with promoting 
competition and lower international calling rates for services to Cuba, 
as well as other international routes.'' TeleCuba Waiver Order, 26 FCC 
Rcd at 5222, para. 15. Commenters may address whether it would serve 
the public interest to reevaluate other conditions adopted in the 
TeleCuba Waiver Order in light of the proposed changes. Finally, the 
FNPRM seeks comment on whether there are other actions the Commission 
should take involving the U.S.-Cuba route to facilitate the provision 
of service between the United States and Cuba.

Initial Paperwork Reduction Act of 1995 Analysis

    5. The Further Notice does not contain new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995, 
Public Law 104-13. In addition, therefore, it does not contain any new 
or modified information collection burden for small business concerns 
with fewer than 25 employees, pursuant to the Small Business Paperwork 
Relief Act of 2002.\1\
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    \1\ Public Law 107-198, 116 Stat. 729 (2002); see 44 U.S.C. 3506 
(c)(4).
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Initial Regulatory Flexibility Certification

    6. The Regulatory Flexibility Act of 1980, as amended (RFA),\2\ 
requires that an initial regulatory flexibility analysis be prepared 
for notice-and-comment rule making proceedings, unless the agency 
certifies that ``the rule will not, if promulgated, have a significant 
economic impact on a substantial number of small entities.'' \3\ The 
RFA generally defines the term ``small entity'' as having the same 
meaning as the terms ``small business,'' ``small organization,'' and 
``small governmental jurisdiction.'' \4\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act.\5\ A ``small business concern'' is one 
which: (1) Is independently owned and operated; (2) is not dominant in 
its field

[[Page 11502]]

of operation; and (3) satisfies any additional criteria established by 
the Small Business Administration (SBA).
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    \2\ See 5 U.S.C. 603. The RFA, 5 U.S.C. 2002); Sec. 601-612, has 
been amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 847, 
857 (1996).
    \3\ 5 U.S.C. 605(b).
    \4\ 5 U.S.C. 601(6).
    \5\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in the Small Business Act, 15 U.S.C. 
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency, after consultation with 
the Office of Advocacy of the Small Business Administration and 
after opportunity for public comment, establishes one or more 
definitions of such term which are appropriate to the activities of 
the agency and publishes such definitions(s) in the Federal 
Register''.
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    7. The Commission has licensed facilities-based telecommunications 
between the United States and Cuba based on policy guidance from the 
State due to the unique relationship between the United States and 
Cuba. The State Department has recently provided new guidance that 
recommends that the Commission remove the nondiscrimination 
requirements placed on the U.S.-Cuba route.
    8. In this Further Notice, the Commission seeks comment on 
proposals to remove the nondiscrimination requirements for the 
provision of telecommunications services between the United States and 
Cuba. We seek comment on whether, if we are to remove the 
nondiscrimination requirements, we also should no longer consider 
operating agreements between a U.S. carrier and ETECSA to be routinely 
available for public inspection. The proposals in this Further Notice 
are designed to allow U.S. carriers to negotiate individualized 
operating agreements with ETECSA, the Cuban carrier. Allowing U.S. 
carriers to negotiate individualized operating agreements may lead to 
more U.S. carriers entering into operating agreements with ETECSA, more 
direct connections between the United States and Cuba, and lower 
settlement rates on the U.S.-Cuba route.
    9. The proposals in this Further Notice, if adopted, would not 
change the need for a U.S. carrier to reach an agreement with the Cuban 
carrier and to file the agreement with the Commission. Therefore, these 
rule changes should not have a significant economic impact on any 
carrier. Further, these requirements are only applicable to facilities-
based carriers, which are generally large companies and do not come 
within the definition of small businesses. Consequently, we do not 
believe that the proposals affect a substantial number of small 
businesses. Accordingly, the Commission certifies that the proposed 
rule change will not have a significant economic impact on a 
substantial number of small entities. The Commission will send a copy 
of the Further Notice, including a copy of this Initial Regulatory 
Flexibility Certification, to the Chief Counsel for Advocacy of the 
SBA. This initial certification will also be published in the Federal 
Register.

Ordering Clauses

    10. IT IS ORDERED that, pursuant to Sections 1, 2, 4(i), 4(j), 201-
205, 208, 211, 214, 303(r), 309, and 403, of the Communications Act of 
1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 201-205, 208, 
211, 214, 303(r), 309, and 403, this Further Notice of Proposed 
Rulemaking IS ADOPTED.
    11. IT IS FUTHER ORDERED that NOTICE IS HEREBY GIVEN of the 
proposed regulatory changes to Commission policy and rules described in 
this Further Notice of Proposed Rulemaking and that comment is sought 
on these proposals.
    12. IT IS FURTHER ORDERED that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, SHALL SEND a 
copy of this Further Notice of Proposed Rulemaking, including the 
Initial Regulatory Flexibility Certification, to the Chief Counsel for 
Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 63

    Communications common carriers, Telecommunications.

Federal Communications Commission.
Gloria J. Miles,
Federal Register Liaison Officer, Office of the Secretary.
    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 63 as follows:

Proposed Rules

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

0
1. The authority citation for part 63 continues to read as follows:

    Authority: Sections 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.


63.22  [Amended].

0
2. In Sec.  63.22 remove and reserve paragraph (f).

[FR Doc. 2016-04837 Filed 3-3-16; 8:45 am]
 BILLING CODE 6712-01-P