What Resellers May Not Know about 214 Authority

Posted: 3/2004

What Resellers May Not Know about 214 Authority

By Edward A. Maldonado, Esq.

Many resellers are confused about the

mandate and obligations of securing international service authority from
the FCC under Section 214 of the Communications Act. Some believe it to be a
one-time inconvenience required for international resale. Others simply view it
as a requirement to pass universal service fund (USF) contribution or federal
excise tax responsibility. Still others believe it to be a requirement of large
wholesale carriers in order to purchase traffic. Although a kernel of truth lies
in each of these views, the reality is that most resellers do not have a
complete picture of what Section 214 authority requires and
prohibits.

A streamlined online application process, enabling such
authority to be obtained without the need of an attorney or regulatory advisor,
has further exacerbated this unawareness. Seeing a cost-saving advantage,
resellers increasingly are using this online process to file for their own
Section 214 licenses without any understanding as to what is required of them,
which can lead to increased costs over the long run.

Since the year 2000, the FCC and other federal agencies
increasingly are using Section 214 authority as a benchmark for potential
regulatory and tax liability between telecom providers and end-users of those
services. Resellers are receiving more requests from federal regulatory agencies
and the IRS for reporting associated with Section 214 authority or the FCCms
Commission Registration System (CORES) registration. Recent rumblings from
within the FCC suggest that stricter reporting to the FCC may be implemented in
coming months that will be targeted to international resellers and
carriers.

Federal regulation places specific conditions on Section 214
authority that are not understood until regulations have been fully reviewed or
all too often until carriers are confronted with violations. Five such
conditions are of particular importance to the average reseller:

1. Under CFR Sec. 63.21 (a) the resale carrier is responsible
for the continuing accuracy of the certifications made in its application and
must notify the FCC if its certificate information is inaccurate. This includes
an array of information including changes of ownership, business address,
affiliations with foreign dominant carriers or any other information that
differs between the first application and a companys present state of business.
If a provider updates its certificate, the FCC will adjust that 214 certificate,
but also reserves the right to review that certification anew to determine if
the providers regulatory status has changed for any reason. The purpose of this
requirement is simple: to maintain an updated public file that consumers and
other carriers can check to verify carriers. The problem is that the current
listing of 214 carriers on the FCC Web site is more a gallery of the living and
the dead than an accurate listing of active carriers. Because of this, the FCC
is likely to begin cleaning house and increasing enforcement CFR Sec. 63.21
(a) by making providers responsible for updates that should have been
filed.

2. Under CFR Sec. 63.21 (c) non-dominant resellers that provide
de-tariffed international services must comply with public disclosures
requirements of CFR 42.10 and 42.11. Specifically, CFR Sec. 42.10(a) requires
non-dominant IXCs to make available to the public information concerning its
current rates, terms and conditions for all of its international and interstate
services and detail how the public may obtain the information. Although called
service information in the regulations, the contents of this requirement more
or less constitute a tariff. This point is reinforced in CRF 42.11 (a), which
requires a non-dominant IXC to maintain the same information, regarding price
and service, for submission to the commission and to state regulatory
commissions regarding all of the carriers international and interstate service
offerings. This information must be maintained in a way that allows the reseller
to produce it within 10 business days if requested by the commission or any
state regulatory commission. The result is resellers still are required to
maintain rate and service information as if they filed a tariff even though
they are not required to file such information with the FCC. Not surprisingly,
most resellers in the market do not maintain this information and few are
prepared to remit this information within 10 days.

3. In regard to de-tariffed resellers and the permissive filing
of tariffs, CFR 61.19 Sec. (b) allows reseller to file tariffs if they are
common carriers that are non-dominant in the provision of international and
domestic services for dialaround 1+ services (for example, those using the
carriers carrier access code). As many resellers have branched into this service arena since
2000, this permissive filing with the FCC may be a wise move in order to seek
protection under the filed-rate doctrine in state or federal courts in consumer
claims. However, very few resellers in this service area have filed this
permissive tariff, though it would be to their benefits.

4. Under CFR Sec. 63.21 (c) common carriers must file annual
reports of overseas telecommunications traffic pursuant to CRF 43.61(a) (1), (2)
and (3), which require resale carriers engaged international services in the
continental United States, off-shore and in any country outside the United
States, to file a report with the commission no later than July 31 of each year
for service actually provided in the preceding calendar year. This information
must include actual traffic and revenue data for each and every service
provided, divided among services billed in the United States, outside the United
States, and services transiting the United States. In essence, what Form 499-A
is to end-user service reporting for USF contributions, the overseas traffic
report is (or will be) to the FCC for international services. Similar to USF
contribution reporting, the overseas telecommunication traffic report has a
quarterly report element required for the carriers aggregate minutes of
facilities resale switched telephone traffic for:

The result for
resellers is that this information should be reported, regardless of whether or
not they have in the past. Review of the FCCs annual report of international
telecommunications traffic clearly shows a historic lack of input and data from
the resale side of the industry. The FCC is aware of this, and there are
numerous internal rumblings within the FCC that enforcement of these regulations
will become a reality in the very near future. The prime motive behind this
effort is to improve record keeping at the FCC, and its associated institutions,
required by statue and regulations. Since the 499-A reporting of end-user traffic has significantly
increased through USAC, the FCC can now crosscheck reported international
traffic in that call path between carriers. Likewise, carriers and resellers
reporting international traffic must now prove-up on traffic previously reported
as international in the 499-A.

5. Finally, there are two prohibitions related to the reseller
at the international level that are worth knowing. These include customer proprietary network information and
unlawful disclosure by entities outside the United States. Pursuant to CFR 63.21
(e) and (f), Section 214 resellers are prohibited from having access to or
making use of specific U.S. customer proprietary network information that is
derived from a foreign network unless the Section 214 reseller obtains approval
from that U.S. based customer. Most of the U.S. customers mentioned in this regulation are
non-dominant U.S. based resellers engaged in resale at the international level.
Should a reseller seek this kind of information, the reseller first must notify
the U.S. customer and require the foreign carrier to disclose the information
only upon written request. Likewise, U.S. resellers also are prohibited from
receiving from a foreign carrier any proprietary or confidential information
pertaining to a competing U.S. carrier obtained by the foreign carrier in the
course of its normal business dealings, unless the competing U.S. carrier
provides its permission in writing. The purpose is to protect the integrity of
U.S. resold networks built in other countries from our jurisdiction. While there
have been few documented administrative forfeiture or enforcement actions by the
FCC on this prohibition, the increased growth of resellers at the international
level, and their contact with PTTs, both within the United States and
internationally, raises the potential for violations of this provision being
brought before the FCC for administrative remedy.

For most resellers, the reporting requirements and international
prohibitions attached to their Section 214 authority are not unknown and often
are learned through the school of hard knocks. The caveat in this kind of learning curve is the FCC reserves
the right to review a carriers authorization and, if warranted, impose
additional requirements pursuant to CFR 63.21(g) for all the requirements of
presented above. Unlike state regulatory fines or penalties, violations of these
regulations, reports and conduct can lead to a provider defending its Section
214 authority itself. If it loses, it officially is out of telecom as a common
carrier. For this reason, it is crucial for providers to familiarize themselves
with Section 214 authority and learn the requirements before they become
problems as this will be an area of increased regulatory activity in
2004.

Edward A. Maldonado is a senior partner in the law office of
Maldonado & Glenn LLP, a telecom legal firm and a principal of the Regnum
Group Inc., a telecom and satellite regulatory and technical consulting group.
He can be reached at [email protected] or
[email protected].