Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| **In the Matter of**             | * | **IB Docket No. 00-202**     |
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| **Policy and Rules Concerning    |   |                              |
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**NOTICE OF PROPOSED RULE MAKING**

**Adopted:** **October 12, 2000 Released: October 18, 2000**

Comment Date: November 17, 2000

Reply Date: December 4, 2000

By the Commission: Commissioner Furchtgott-Roth concurring and issuing a
statement.

**TABLE OF CONTENTS**

Paragraph

I. INTRODUCTION AND BACKGROUND [3](#introduction-and-background)

II\. REGULATORY FORBEARANCE [8](#regulatory-forbearance)

A. Analysis of Statutory Requirements
[8](#analysis-of-statutory-requirements)

1\. Are Tariff Filing Requirements Necessary to Ensure that the Charges,
Practices, Classifications or Regulations for the International
Interexchange Services of Non-dominant Interexchange Carriers Are Just
and Reasonable, and Are Not Unjustly or Unreasonably Discriminatory?
[8](#are-tariff-filing-requirements-necessary-to-ensure-that-the-charges-practices-classifications-or-regulations-for-the-international-interexchange-services-of-non-dominant-interexchange-carriers-are-just-and-reasonable-and-are-not-unjustly-or-unreasonably-discriminatory)

2\. Are Tariff Filing Requirements for the International Interexchange
Services of Non-dominant Interexchange Carriers Necessary for the
Protection of Consumers?
[11](#are-tariff-filing-requirements-for-the-international-interexchange-services-of-non-dominant-interexchange-carriers-necessary-for-the-protection-of-consumers)

3\. Is Forbearance from Applying Section 203 Tariff Filing Requirements
to the International Interexchange Services Offered by Non-Dominant
Interexchange Carriers Consistent with the Public Interest?
[13](#is-forbearance-from-applying-section-203-tariff-filing-requirements-to-the-international-interexchange-services-offered-by-non-dominant-interexchange-carriers-consistent-with-the-public-interest)

B. Maintenance and Disclosure of Price and Service Information
[15](#b.-maintenance-and-disclosure-of-price-and-service-information)

C. Application of Proposed Policies to U.S.-Authorized Affiliated
Carriers Classified as Dominant for Specific International Routes.
[17](#c.-application-of-proposed-policies-to-u.s.-authorized-affiliated-carriers-classified-as-dominant-for-specific-international-routes.)

D. Complete Detariffing of International CMRS Services
[18](#d.-complete-detariffing-of-international-cmrs-services)

E. Filing of Carrier-to-Carrier Contracts
[20](#filing-of-carrier-to-carrier-contracts)

F. Ex Parte Presentations [24](#ex-parte-presentations)

G. Initial Regulatory Flexibility Analysis
[24](#initial-regulatory-flexibility-analysis)

H. Comment Filing Procedures [27](#comment-filing-procedures)

I. Paperwork Reduction Act [29](#paperwork-reduction-act)

J. Further Information [29](#further-information)

III\. ORDERING CLAUSES [29](#ordering-clauses)

IV\. CONCURRING STATEMENT OF COMMISSIONER HAROLD FURCHTGOTT-ROTH
[42](#concurring-statement-of-commissioner-harold-furchtgott-roth)

**APPENDIX A: Proposed Rules**

# INTRODUCTION AND BACKGROUND

1.  On February 8, 1996, Congress enacted the Telecommunications Act of
    1996 (the 1996 Act), which amends the Communications Act of 1934
    (the Act).[^1] The major purpose of the 1996 Act is to establish "a
    pro-competitive, deregulatory national policy framework" designed to
    make available to all Americans advanced telecommunications and
    information technologies and services "by opening all
    telecommunications markets to competition."[^2] Congress empowered
    the Commission with an important tool to realize this goal in
    Section 10 of the Act. The Commission is required to forbear from
    applying provisions of the Act, or of the Commission's regulations,
    to a telecommunications carrier or telecommunications service, or
    class thereof, if the Commission makes certain findings with respect
    to such provisions or regulations as required in Section 10.[^3]

2.  For over twenty years, the Commission has made efforts to deregulate
    the domestic interexchange marketplace through several proceedings,
    including the *Competitive Carrier proceeding*.[^4] After prolonged
    litigation regarding the Commission's authority to move to a
    nontariffed environment for non-dominant interexchange carriers, the
    Commission, pursuant to the new power to forbear in Section 10 and
    consistent with the decision affirming its authority to mandate
    detariffing policies by the Court of Appeals for the District of
    Columbia, forbore from the requirements of Section 203 of the Act
    and detariffed domestic, interstate, interexchange services.[^5]
    Specifically, the Commission determined that complete
    detariffing,[^6] with limited exceptions for permissive detariffing,
    satisfies the criteria set forward in Section 10(a) that:

> \[T\]he Commission shall forbear from applying any regulation or any
> provision of this Act to a telecommunications carrier or
> telecommunications service, or class of telecommunications carriers or
> telecommunications services, in any or some of its or their geographic
> markets, if the Commission determines that --
>
> \(1\) enforcement of such regulation or provision is not necessary to
> ensure that the charges, practices, classifications or regulations by,
> for, or in connection with that telecommunications carrier or
> telecommunications service are just and reasonable, and are not
> unjustly or unreasonably discriminatory;
>
> \(2\) enforcement of such regulation or provision is not necessary for
> the protection of consumers; and

\(3\) forbearance from applying such provision or regulation is
consistent with the public interest.[^7]

The Commission made no determination as to whether detariffing
international, interexchange services satisfies the requirements of
Section 10, as competitive conditions in the international marketplace
may vary from those in the domestic interexchange marketplace.[^8]
Therefore, we commence this proceeding 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 and whether the
detariffing of international services should mirror the detariffing of
domestic services. We note that the regulatory safeguards imposed on
carriers that are regulated as dominant on particular routes because of
an affiliation or alliance with a foreign carrier with market power are
set forth in 47 C.F.R. § 63.10 and differ from the regulatory safeguards
imposed on carriers that are dominant for reasons other than a foreign
carrier affiliation, *i.e.* price cap regulation. For purposes of this
proceeding, when referring to the non-dominant status of carriers,
unless otherwise noted, we intend to invoke the latter reference to
dominant classification due to reasons *other* than a foreign carrier
affiliation. We address separately, in Part II.C, the concerns
applicable to international carriers regulated as dominant for specific
international routes because of their affiliations with foreign carriers
that possess market power in the destination market and welcome further
comment on these issues. [^9]

3.  We also initiate this proceeding as part of our biennial review of
    the regulations concerning the operations or activities of any
    provider of telecommunications services. Specifically, Section 11 of
    the Act directs the Commission to undertake this review in every
    even-numbered year, beginning with 1998.[^10] The Act directs the
    Commission to make a determination whether a particular regulation
    is no longer necessary "as a result of meaningful economic
    competition between providers of such service."[^11] If the
    Commission deems any regulation "no longer necessary in the public
    interest," it is required to repeal or modify the regulation.[^12]
    The Commission recently raised the issue of whether tariffs for
    international interexchange services and the filing of contracts
    under Section 43.51 of the Commission's rules should be examined as
    part of its 2000 biennial regulatory review of Commission
    rules.[^13] We note that in response to the Commission's staff
    report, we received comments supporting efforts to detariff
    international interexchange services and to simplify and amend
    Commission reporting rules.[^14]

4.  Examining conditions in the current marketplace, we find that there
    have been dramatic changes in the market for international
    interexchange services in recent years. In particular, in the past
    few years, the international interexchange marketplace has
    experienced, to the benefit of consumers and competition in the U.S.
    market, increased privatization and liberalization of foreign
    markets, rapidly declining international settlement rates, and
    larger numbers of providers of international interexchange
    service.[^15] In light of the World Trade Organization (WTO) Basic
    Telecom Agreement and WTO Members' commitments to open markets, the
    Commission determined in a series of proceedings that it serves the
    public interest to adopt rules to promote competition in the
    international interexchange marketplace by opening further the U.S.
    market to competition from foreign companies and to reform and
    streamline its rules and policies governing the provision of U.S.
    international services.[^16] As a result of these new deregulatory
    policies, in conjunction with market forces, there has been a
    substantial increase in the level of competition in the
    international interexchange marketplace that has benefited
    consumers. Therefore, we find that it is timely for us to examine
    whether it is necessary, in the context of the pro-competitive goals
    of the 1996 Act and the increased competition resulting from the
    liberalization and privatization policies of the WTO and the
    Commission's deregulatory policies, 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.

5.  Specifically, we propose, pursuant to the forbearance authority
    provided in Section 10 of the Act, to extend the complete
    detariffing regime that we adopted for domestic, interexchange
    services to the international services of non-dominant,
    interexchange carriers, including U.S. carriers classified as
    dominant due to foreign affiliations.[^17] In addition, we
    tentatively conclude that we should adopt each of the following
    proposals:

> \(a\) *Limited Exceptions for Permissive Detariffing*: We tentatively
> conclude that limited exceptions for permissive detariffing for
> international interexchange direct-dial services to which end-users
> obtain access by dialing a carrier's access code (CAC); and for the
> first 45 days of service to new customers that contact the local
> exchange carrier (LEC) to choose their primary interexchange carrier
> (PIC) are in the public interest.[^18]
>
> \(b\) *Public Disclosure Requirement*: Moreover, we propose adopting a
> public disclosure requirement that non-dominant interexchange carriers
> make information available to the public concerning current rates,
> terms, and conditions for all of their international interexchange
> services, in at least one location during regular business hours, and
> that such carriers that have Internet websites post this information
> on-line.[^19]
>
> \(c\) *Maintenance of Price and Service Information*: We also propose
> to require non-dominant interexchange carriers to maintain price and
> service information regarding all of their international interexchange
> service offerings. This price and service information should include
> the information provided in the public disclosure requirement as well
> as supporting documents for the rates, terms, and conditions of the
> offerings, all of which should be provided to the Commission within
> ten business days of receipt of a Commission request. We further
> propose that non-dominant interexchange carriers retain the price and
> service information for a period of at least two years and six months
> following the date the carrier ceases to provide international
> services on such rates, terms and conditions, in order to afford the
> Commission sufficient time to notify a carrier of the filing of a
> Section 208 complaint.[^20]
>
> \(d\) *Complete Detariffing of International Commercial Mobile Radio
> Services (CMRS)*: We propose revisiting the conclusion that permissive
> detariffing of CMRS providers for international services on
> unaffiliated routes is in the public interest. Instead, we tentatively
> conclude that our analysis regarding the public interest need for
> complete detariffing of international interexchange services by
> non-dominant carriers in order to protect consumers and further
> competition is applicable to CMRS providers of international services
> and, therefore, complete detariffing of international interexchange
> services provided by CMRS providers for affiliated and unaffiliated
> routes is warranted.[^21]
>
> \(e\) *Filing of Carrier-to-Carrier Contracts*: We tentatively
> conclude that only interexchange carriers classified as dominant for
> reasons other than a foreign affiliation under Section 63.10 of the
> Commission's rules should be required to file carrier-to-carrier
> contracts under Section 43.51 of the Commission's rules. We also
> propose maintaining the requirement for all authorized carriers,
> whether classified as dominant or non-dominant, contracting directly
> for services with foreign carriers that possess market power.[^22]

We invite parties to comment on these proposals and tentative
conclusions and on any other relevant issues, including transition
issues, concerning the detariffing of international interexchange
services provided by non-dominant carriers. With respect to each issue,
parties should specify the bases upon which they believe we can make the
findings required to meet the statutory criteria for forbearance.

# REGULATORY FORBEARANCE

## Analysis of Statutory Requirements

6.  As noted above, Section 10(a) of the Communications Act requires the
    Commission to forbear from applying to a telecommunications carrier
    or telecommunications service regulations or provisions of the
    Communications Act, if the Commission makes three specific
    determinations.[^23] Moreover, in determining whether forbearance
    from enforcing a particular provision or regulation is in the public
    interest, the Commission is specifically required to consider
    whether forbearance will promote competitive market conditions,
    including the extent to which forbearance will enhance competition
    among providers of telecommunications services.[^24] Accordingly, as
    explained in the following sections, we tentatively conclude that
    the Communications Act requires us to forbear from applying Section
    203 of the Act and to adopt a policy of complete detariffing for
    international interexchange services with limited exceptions for
    permissive detariffing.

### Are Tariff Filing Requirements Necessary to Ensure that the Charges, Practices, Classifications or Regulations for the International Interexchange Services of Non-dominant Interexchange Carriers Are Just and Reasonable, and Are Not Unjustly or Unreasonably Discriminatory? 

7.  Regarding the first criterion of Section 10, as the Commission has
    previously concluded with respect to the domestic services of
    non-dominant interexchange providers and the international services
    of CMRS providers for unaffiliated routes, we tentatively conclude
    that tariff filing requirements are not necessary to ensure that the
    charges, practices, classifications or regulations for the
    international interexchange services of non-dominant interexchange
    carriers are just and reasonable, and are not unjustly or
    unreasonably discriminatory.[^25] We find as the basis for this
    tentative conclusion the fact that competitive conditions in the
    global telecommunications market have significantly improved in the
    recent past to reduce, in most cases, the likelihood of dramatic
    price increases or the wide-scale proliferation of unfavorable terms
    and conditions offered to consumers.[^26] We further tentatively
    conclude that, to the extent there are market segments where
    increased competition has not benefited consumers, the filing of
    tariffs is not necessary to ensure that rates are just and
    reasonable and are not unjustly or unreasonably discriminatory.

8.  In the 1995 *AT&T International Non-Dominance Order*, the Commission
    identified two "structural problems" in the international services
    market that prevented the market from being fully competitive and
    discouraged innovative price reductions: (1) inflated international
    accounting rates; and (2) the need for additional competition in the
    U.S. market.[^27] Since 1995, the Commission has made significant
    progress in addressing these problems through the modification of
    its accounting rate and settlement policies and the adoption of
    policies that encourage entry into the U.S. international services
    market.

9.  With respect to the concern about inflated international accounting
    rates, the Commission has made significant progress toward lowering
    accounting rates through reform of its accounting rate and
    international settlement policies.[^28] The Commission has pursued a
    two-pronged approach to accounting rate reform by relaxing
    regulations governing accounting rate negotiations on routes where
    there is competition in the foreign market and by adopting
    "benchmark" settlement rates to help reduce rates on routes where
    foreign carriers are not subject to competitive pressures.[^29]
    These accounting rate policies, in conjunction with market forces,
    have led to substantial decreases in settlement rates. Since 1995,
    the U.S. average accounting rate declined from 81¢ at year end 1995
    to 38¢ in mid-2000, a decrease of 58%.[^30]

10. The second concern has been alleviated by the increase in
    competition for international services spurred by commitments made
    by the U.S. and other countries in the WTO Basic Telecom Agreement.
    The Commission's *Foreign Participation Order,* adopted in response
    in part to the WTO Basic Telecom Agreement, established policies
    that encourage entry into the U.S. market by foreign carriers. Since
    the *Foreign Participation Order*'s "open entry" policies for WTO
    Members became effective on February 9, 1998, the Commission has
    granted more than 1,767 Section 214 authorizations to provide
    international telecommunications services and 376 of those carriers
    with authorizations are providing minutes of services on
    international routes.[^31]

11. We believe that our accounting rate reform policies, market forces,
    and increased competitive entry into the U.S. market have led to
    substantial reductions in consumer rates for international
    interexchange services. Since 1996, the average rate for
    international telephone service has decreased from \$0.74 per minute
    in 1996 to \$0.59 per minute in 1998.[^32] Discount calling plan
    rates have decreased even more dramatically. For example, on the
    United States to United Kingdom route, discount residential rates
    for the peak period charged by the major carriers varied between
    \$0.30 and \$0.80 per minute in 1996; by 1999, these rates were as
    low as \$0.10 per minute.[^33] On the United States to Japan route,
    discount rates varied between \$0.45 and \$1.30 per minute in 1996;
    by 1999, these rates were as low as \$0.16 per minute.[^34] On the
    United States to India route, discount rates varied between \$0.73
    and \$1.70 per minute in 1996; by 1999, these rates were as low as
    \$0.55 per minute.[^35] The Commission has previously determined
    that consumers generally are highly sensitive to prices and are
    likely to switch carriers to take advantage of price
    promotions.[^36] Based upon this evidence of the positive impact of
    increased competition on consumer prices and consumer demand
    behavior, we tentatively conclude that tariffs are no longer
    necessary to ensure that charges, practices, classification or
    regulations are just and reasonable and are not unjustly or
    unreasonably discriminatory. We seek comment on this tentative
    conclusion and on whether there remains a justification to retain
    tariffs on certain routes on which sufficient competition may not
    exist.

12. We note, however, that despite competition among U.S. international
    carriers, we can identify two cases in which consumers have not
    benefited from lower rates. In the first case, rates remain
    excessive on routes on which competition has not taken hold in the
    foreign market. On such routes, excessive settlement costs are being
    passed through to U.S. consumers, even though there may be adequate
    competition on the U.S. end. Nevertheless, we do not believe that
    tariffs will benefit U.S. carriers or consumers in alleviating this
    problem regarding the lack of competition in foreign markets. Where
    foreign carriers possess market power, our International Settlements
    Policy (ISP) serves to ensure that, as a threshold protection, all
    U.S. carriers will receive nondiscriminatory settlement rates. In
    such instances, we expect that competition on the U.S. end obviates
    the need for tariffs in order to prevent harm to U.S. consumers. In
    the second case, rates remain excessive for consumers who do not
    subscribe to carriers' discount calling plans or take advantage of
    competitive dial-around rates. As a general trend over recent years,
    "basic" rates have increased from already high levels. These higher
    prices may be due to consumer information problems, potentially
    including consumers\' difficulty in obtaining easily understandable
    and reliable information about calling plans and other competitive
    alternatives, such as dial-around services. We do not believe,
    however, that tariffs would cure the underlying cause for this
    market anomaly. We believe that one of the primary reasons these
    consumers still pay high basic rates rather than discount rates is
    that they lack timely and reliable information about available
    rates. We tentatively conclude that the public disclosure
    requirement we propose below will help address this consumer
    information issue, particularly because we do not believe that
    tariff filings generally provide rate and service information that
    is easily understood by consumers and that permits them to compare
    and choose suitable calling plans. We believe that, as consumers
    become aware of the competitive options for international services,
    non-dominant interexchange carriers will be unable successfully to
    charge rates, or impose terms and conditions for international
    services that violate Sections 201 or 202 of the Act.[^37] Moreover,
    as the Commission concluded in the *Detariffing Order*, we have the
    ability to remedy potential violations of the provisions of Sections
    201 and 202 of the Act through the exercise of our authority to
    investigate and adjudicate complaints and to examine relevant legal
    and policy issues under Section 208 of the Act.[^38] Thus, we
    tentatively find that our 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. We seek comment on this tentative
    conclusion.

13. As we discuss further below, we propose to adopt a policy of
    complete detariffing for non-dominant interexchange carriers that,
    along with competitive market forces, 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. We
    seek comment on this tentative conclusion that our proposal to adopt
    complete detariffing meets the first prong of the statutory
    forbearance criteria of Section 10(a).[^39]

### Are Tariff Filing Requirements for the International Interexchange Services of Non-dominant Interexchange Carriers Necessary for the Protection of Consumers?

14. We also tentatively conclude that requiring non-dominant
    interexchange carriers to file tariffs for international offerings
    is not necessary for the protection of consumers of interexchange
    services. To the contrary, we believe that tariff filing
    requirements, though initially required to prevent discrimination
    among consumers, may harm consumers by undermining the development
    of competition and possibly leading to higher rates by stifling
    price reductions and marketing innovations.

15. In accordance with our conclusions in the *Detariffing Order on
    Reconsideration*,[^40] we tentatively conclude that tariffs for
    international interexchange services may have negative consequences
    for consumers because of the application of the "filed-rate"
    doctrine.[^41] Section 203(c) requires a carrier to provide service
    at the rates, terms, and conditions set forth in the tariffs on file
    with the Commission until the carrier files a superseding tariff
    canceling, or changing the rates, terms, and conditions in the
    tariffed offering.[^42] Therefore, if a carrier has signed an
    underlying contract with a customer on different terms from those
    contained in the tariff, Section 203(c), in most circumstances,
    requires the carrier to provide the service on the terms set forth
    in the tariff. Because of carriers' rights to invoke the
    "filed-rate" doctrine and bind customers to tariffed offerings,
    tariffs, even if filed on a permissive basis, preclude consumers
    from pursuing remedies under state consumer protection and contract
    laws that are generally available to consumers in any other
    unregulated, competitive environment. We tentatively conclude that
    only with complete detariffing can we be certain to avoid the
    uncertainty, confusion, and potential harm to consumers associated
    with the "filed-rate" doctrine.[^43] We believe that the ability of
    a carrier to alter or abrogate a contract unilaterally undermines
    consumers' legitimate expectations and that the effects of the
    "filed-rate" doctrine are particularly harmful to mass market
    residential and small business consumers who may not be as savvy and
    informed as larger business users and, therefore, are more reliant
    upon marketing agents and carrier advertisements.[^44] For example,
    most residential customers may generally assume that carriers would
    not change their offerings without actual notice to a customer;
    nevertheless, in the event of a dispute over a rate change, a
    customer would be bound to the rates, terms and conditions of the
    tariff. Therefore, tariffing requirements may not only impair market
    efficiency, as we discuss in conjunction with our evaluation of the
    third criterion of Section 10(a), but may also harm and increase
    costs to consumers.

16. We tentatively conclude that detariffing will better protect
    consumers against rates, terms and conditions that violate the
    Communications Act because it will permit carriers to respond to
    price and service changes in an unregulated manner.[^45] Moreover,
    as we discussed above, we believe that the Commission's enforcement
    authority and market forces will afford sufficient protection for
    consumers. We seek comment on our proposal to avoid these harms to
    consumers by adopting a complete detariffing regime that we believe
    satisfies the second prong of the statutory forbearance criteria of
    Section 10(a).[^46]

### Is Forbearance from Applying Section 203 Tariff Filing Requirements to the International Interexchange Services Offered by Non-Dominant Interexchange Carriers Consistent with the Public Interest?

17. Finally, we tentatively conclude that not permitting non-dominant
    interexchange carriers to file tariffs for the provision of
    international interexchange services is consistent with the public
    interest, with limited exceptions discussed below. Section 10(b)
    specifically requires the Commission, in determining whether
    forbearance from enforcing a provision of the Communications Act or
    a regulation is in the public interest, to consider whether
    forbearance will promote competitive market conditions, including
    the extent to which forbearance will enhance competition among
    providers of telecommunications services.[^47] As we concluded with
    respect to domestic, interstate, interexchange services, we
    tentatively conclude that a deregulatory detariffing policy that
    does not require or permit interexchange carrier tariffs for
    international interexchange services will create the most
    pro-competitive conditions for the international interexchange
    marketplace. Complete detariffing will enhance competition among
    providers of such services, promote competitive market conditions,
    and achieve other objectives that are in the public interest,
    including eliminating the possible invocation of the "filed-rate"
    doctrine by non-dominant interexchange carriers and establishing
    market conditions that more closely resemble an unregulated
    environment. [^48] On the other hand, permissive detariffing for
    international interexchange services would generally undermine
    several of these pro-competitive benefits, and, therefore, would not
    be in the public interest. Thus, we tentatively conclude that we
    should adopt a policy of complete detariffing for international
    interexchange sevrices.

18. In the domestic detariffing proceeding, the Commission concluded
    that requiring or permitting non-dominant carriers under a
    permissive detariffing policy to file tariffs impedes vigorous
    competition in the market for interexchange services by : (1)
    removing the incentives for competitive price discounting; (2)
    reducing or eliminating carriers' ability to make rapid, efficient
    responses to changes in demand and cost; (3) imposing costs on
    carriers that attempt to make new offerings; and (4) preventing or
    discouraging consumers from seeking or obtaining service
    arrangements specifically tailored to their needs.[^49] In contrast,
    a policy of complete detariffing will enable a legal relationship
    between carriers and customers that mirrors those in unregulated
    competitive markets. In the *Detariffing Order*, the Commission
    determined that the elimination of non-dominant carrier tariff
    filings would prevent potential situations in which carriers refuse
    to negotiate with customers based upon the Commission's tariff
    filing and review processes.[^50] Therefore, under a policy of
    complete detariffing, carriers would be more responsive to customer
    demands and offer a greater variety of price and service packages to
    suit customer needs.

19. We tentatively conclude, given current international interexchange
    market conditions, that the Commission's analysis of the benefits of
    complete detariffing for domestic, interstate, interexchange
    services applies to international interexchange services. In
    addition, as we discuss above, the absence of tariffs will also
    eliminate the possible invocation by carriers of the "filed-rate"
    doctrine and its resulting potential harm to consumers. As we
    described in the previous section, if a carrier has signed an
    underlying contract with a customer on different terms from those
    contained in the tariff, Section 203(c), in most circumstances,
    requires the carrier to provide the service on the terms set forth
    in the tariff. Thus, application of the "filed-rate" doctrine harms
    consumers by permitting carriers unilaterally to alter rates, terms,
    and conditions. Therefore, in order to establish a more
    market-based, deregulatory environment that will help prevent
    negative consequences for consumers, we tentatively conclude that,
    with a few exceptions noted below, it would be in the public
    interest to prohibit non-dominant interexchange carriers from filing
    tariffs with respect to international interexchange services. In
    making this tentative conclusion, we note that detariffing will
    promote flexibility and reduce the regulatory burdens on all
    non-dominant providers of international interexchange services,
    including smaller carriers. We seek comment on this tentative
    conclusion and whether complete detariffing is in the public
    interest and satisfies the third prong of the statutory forbearance
    criteria in Section 10(a).[^51]

20. In a market environment without tariffs, carriers and customers must
    enter into legal contracts for services. The Commission concluded in
    the domestic detariffing proceeding that because of the difficulty
    of establishing a contractual legal relationship between carriers
    and customers in two limited circumstances, carriers should be
    permitted to file tariffs for their services. Similarly, we
    tentatively conclude here that permissive detariffing, as opposed to
    complete detariffing, is in the public interest and warranted with
    respect to: (1) international interexchange direct-dial services to
    which end-users obtain access by dialing a carrier access code,
    *i.e.,* 10-10-XXX, ("dial-around 1+ services"), and (2)
    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, in those limited circumstances
    in which a prospective customer contacts the LEC to select an
    interexchange carrier or to initiate a PIC change ("LEC-implemented
    new customer services").[^52] Regarding casual calling services,
    [^53] neither contract law nor the provision of credit card
    information or a billing number guarantees that non-dominant
    interexchange carriers will have an enforceable contract with
    customers of casual calling services if callers do not have notice
    of a carrier's rates, terms, and conditions prior to completion of a
    call.[^54] For most casual calling services, notice is not a
    problem, because, as we determined in the domestic proceeding, most
    casual calling services already require intervention by an
    interexchange carrier that can provide notice to customers prior to
    the completion of a call.[^55] Yet, with regard to a particular
    subset of casual calling services, dial-around 1+ services, notice
    remains unlikely. A means of ensuring the establishment of an
    enforceable contract with customers of dial-around 1+ services has
    not been determined because interexchange carriers have not
    implemented universally the technology to allow them to distinguish
    a caller using dial-around 1+ services from direct dial 1+
    services.[^56] Therefore, we tentatively conclude that adoption of
    complete detariffing at this time for dial-around 1+ services would
    not be in the public interest until the cost burdens on non-dominant
    interexchange carriers to install the necessary signalling equipment
    to distinguish dial-around 1+ services and to provide recorded
    announcements regarding information about rates, terms, and
    conditions of dial-around 1+ services to customers are reduced; or
    alternative ways to notify customers become more widespread.[^57] We
    seek comment on this tentative conclusion and if there are any other
    unique issues with respect to the provision of international casual
    calling services.

21. Additionally, we tentatively conclude that permissive detariffing is
    appropriate for the initial forty-five days of non-dominant
    interexchange carriers' provision of international interexchange
    mass market services to new residential and business customers, or
    until a written contract is consummated, whichever is earlier. When
    a new customer chooses only to contact a LEC to select an
    interexchange carrier or intiate a PIC-change, the interexchange
    carrier has no direct contact with the customer and may not be able
    to ensure that a legal relationship is established with that
    customer for some period of time. Because customers choose their
    interexchange carrier for both domestic and international services,
    we believe that the conclusions in the domestic proceeding regarding
    LEC-implemented new customer services should apply equally to both
    domestic and international interexchange services. As we previously
    concluded in the domestic proceeding, a period of forty-five days
    appears to be reasonable to assume that a carrier-customer contract
    for international interexchange services can be established.[^58]
    Therefore, we tentatively conclude that allowing on a permissive
    basis non-dominant interexchange carriers to file tariffs for
    dial-around 1+ services and 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. We seek comment on all of these tentative
    conclusions and the accompanying modifications to our rules.[^59]

## B. Maintenance and Disclosure of Price and Service Information {#b.-maintenance-and-disclosure-of-price-and-service-information .unnumbered}

22. While we recognize the benefits of complete detariffing to
    consumers, we also believe that consumers must have adequate
    information concerning carriers' rates, terms and conditions to
    ensure carrier compliance with the requirements of the Act and in
    order for consumers to determine the most appropriate rate plans
    that may meet their individual calling patterns. Pursuant to our
    conclusions in the *Detariffing Order*, we do not believe that
    tariffs are the only or best means of disseminating such information
    about international interexchange services.[^60] Customers will
    still receive rate information through the billing process, and
    carriers will likely be obligated, as part of their contractual
    relationship with customers, to provide notice of rate changes, etc.
    Moreover, customers, particularly mass market customers rarely, if
    ever, consult tariff filings and when they do, they find them
    difficult to understand.

23. Although we believe most carriers will have incentives to provide
    some information about their offerings in an accessible format in
    order to remain competitive for consumers, we believe that consumers
    may have difficulty obtaining complete information concerning all of
    the international interexchange service offerings available. Without
    ready access to this information, some consumers may have difficulty
    determining the best available calling plans for their individual
    usage. In addition, we believe that information about rates, terms
    and conditions of service offerings will assist consumers in
    bringing complaints, if necessary, to enforce the provisions of the
    Act and the Commission's rules. Accordingly, we propose extending to
    non-dominant interexchange providers of international services the
    requirement, currently applicable to non-dominant interexchange
    providers of domestic services, that they disclose information about
    their rates, terms and conditions to the public; maintain price and
    service information regarding the international offerings that can
    be submitted to the Commission upon request; and post information
    about their offerings on their Internet websites. We seek comment on
    these proposed requirements and the resulting proposed modifications
    to our rules.

24. We note that concerns were raised in the domestic detariffing
    proceeding about the potential harm to competition from requiring
    public disclosure of rate and service information because it would
    increase the ability of carriers to engage in tacit price
    coordination.[^61] We found, however, that potential harms about
    collusive behavior resulting from public disclosure generally are
    outweighed by the benefits of public disclosure for several reasons.
    First, as set forth in the *Detariffing Second Order on
    Reconsideration,* there is abundant evidence that disclosure of
    information is beneficial to competition. The evidence to the
    contrary is "sparse and indeterminate."[^62] Generally, in a
    marketplace with many competitors and low barriers to entry, the
    likelihood of oligopolistic behavior is low. Second, even if there
    were conclusive evidence of tacit price coordination in the
    international interexchange marketplace, a public disclosure
    requirement would pose little, if any, additional risk of harm to
    competition. As the Commission has previously recognized,
    nondominant interexchange carriers will still obtain information
    about their competitors' rates and service offerings regardless of
    whether we require public disclosure.[^63] Carriers generally have
    far more resources than residential and small business consumers to
    obtain this information directly. Therefore, consumers will
    potentially experience the most harm in the absence of a public
    disclosure requirement. We tentatively conclude consistent with our
    findings in the *Detariffing Second Order on Reconsideration,* the
    best balance is struck in favor of consumer concerns and propose
    that information about rates, terms, and conditions be made
    available to the public.[^64]

25. In order to comply with the public disclosure requirement, we do not
    propose requiring that information about rates, terms and conditions
    be provided in any particular format or any particular location. We
    do propose, however, that carriers make such information available
    to the public in at least one location during regular business hours
    and that carriers that have Internet websites post this information
    on-line in a timely and easily accessible manner with regular
    updates.[^65] Also, we propose that carriers 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 and indicate on the title or first page of their
    cancelled tariffs the website address and the address of the public
    information site where the rates, terms, and conditions for their
    international interexchange services can be found.[^66]

26. Finally, consistent with the requirements we adopted in the
    *Detariffing Order*, we tentatively conclude that non-dominant
    interexchange carriers must maintain price and service information
    regarding all of their international interexchange offerings and
    that they be able to submit this information within ten business
    days to the Commission upon request, consistent with the
    requirements we applied to domestic, interstate, interexchange
    services.[^67] We anticipate that this information will also include
    information disclosed to the public, as well as supporting
    information regarding the rates, terms, and conditions of the
    carriers' international interexchange offerings. We also propose to
    require non-dominant interexchange carriers to retain the foregoing
    information for a period of at least two years and six months
    following the date that a carrier ceases to provide services on such
    rates, terms, and conditions, in order to afford the Commission
    enough time to notify a carrier of the filing of a complaint, which
    generally must be commenced within two years from the time the cause
    of action accrues. We seek comment on these tentative conclusions.

## C. Application of Proposed Policies to U.S.-Authorized Affiliated Carriers Classified as Dominant for Specific International Routes. {#c.-application-of-proposed-policies-to-u.s.-authorized-affiliated-carriers-classified-as-dominant-for-specific-international-routes. .unnumbered}

27. In its 1997 *Benchmarks Order*, the Commission addressed the
    potential of a U.S. carrier to engage in an anticompetitive price
    squeeze against other carriers in its provision of international
    facilities-based switched services that would harm competition in
    the U.S. International Messaging Telephone Services (IMTS)
    market.[^68] A "price squeeze" is a predatory tactic in which a U.S.
    affiliate of a foreign carrier sets its prices so close to the
    international settlement rate, a significant cost component in the
    provision of international interexchange services that is paid to
    foreign carriers, that it precludes other carriers from competing
    without losing money. In order to prevent the competitive distortion
    of a price squeeze, the Commission imposed a condition on U.S.
    carriers' section 214 authorizations.[^69] The condition requires
    that before a U.S. carrier may provide facilities-based switched or
    private line service on a route where it is affiliated with a
    foreign carrier with market power, the foreign affiliate must offer
    all U.S. carriers on the route a rate for settling traffic that is
    at or below the relevant benchmark rate. In adopting the condition,
    the Commission stated that it would take enforcement action if it
    determined that a carrier is engaging in price squeeze behavior. As
    a trigger to determine when price squeeze behavior has occurred, the
    Commission established a rebuttable presumption that a carrier has
    engaged in price squeeze behavior if any of a carrier's tariffed
    collection rates on an affiliated route are less than the carrier's
    average variable costs on that route, which the Commission defined
    as a carrier's net settlement rate plus any originating access
    charges.[^70]

28. We seek comment on whether our proposal to require complete
    detariffing will affect our ability to monitor potential price
    squeeze behavior. We tentatively conclude that our proposal will not
    do so because of our proposed requirement that carriers maintain
    price and service information, including documents supporting the
    rates, terms, and conditions of the carriers' international
    interexchange offering.[^71] As we discuss above, we tentatively
    conclude that, in addition to the public disclosure requirement,
    carriers should be able to produce price and service information
    about their international interexchange offerings in a timely
    manner, *i.e.,* within ten business days of a Commission request. We
    believe that this maintenance of information requirement will
    address any concerns regarding potential anticompetitive pricing
    strategies by U.S. carriers classified as dominant due to their
    foreign affiliations. Therefore, we seek comment on whether we
    should continue to require facilities-based carriers whose foreign
    affiliates have market power to file tariffs for the purpose of
    detecting price squeeze behavior on affiliated routes and whether
    the maintenance of price and service information is a sufficient
    alternative to the monitoring of tariffs for purposes of detecting
    price squeeze behavior by facilities-based carriers affiliated with
    foreign carriers that possess market power.

## D. Complete Detariffing of International CMRS Services {#d.-complete-detariffing-of-international-cmrs-services .unnumbered}

29. In the *CMRS Second Report and Order*, the Commission adopted
    complete detariffing for CMRS providers of domestic services
    pursuant to its authority in Section 332 of the Act.[^72] In 1998,
    the Commission adopted permissive detariffing of international
    services to unaffiliated points for CMRS providers in its *CMRS
    Forbearance Order*.[^73] In that order, the Commission determined
    that the forbearance criteria of Section 10(a)(1) and (a)(2) were
    satisfied. The Commission found that tariffs are unnecessary to
    ensure that unaffiliated CMRS providers' charges, practices,
    classifications, or regulations for international interexchange
    services are just and reasonable and are unnecessary to protect
    consumers.[^74] Nevertheless, the Commission determined that
    permissive detariffing, rather than complete detariffing, would
    reduce transaction costs and administrative burdens on service
    providers; therefore, the Commission adopted permissive detariffing
    as consistent with the public interest under Section 10(a)(3).[^75]
    In this Notice, we propose revisiting this conclusion that
    permissive detariffing of CMRS providers for international services
    on unaffiliated routes is in the public interest. Instead, we
    tentatively conclude that our analysis regarding the public interest
    need for complete detariffing of international interexchange
    services by non-dominant carriers in order to protect consumers and
    further competition applies equally to CMRS providers of
    international services. Therefore, the complete detariffing of
    international interexchange services, as we have previously found
    with respect to domestic services provided by CMRS carriers, is
    warranted.[^76]

30. Our previous concern with complete detariffing was that it would
    increase the transactional and administrative burden on carriers by
    forcing them to contact and negotiate individual contracts with
    customers, rather than by voluntarily filing, pursuant to permissive
    detariffing, a tariff for the service with the Commission. We
    believe that, consistent with our analysis of domestic detariffing,
    these burdens are minimal. As we concluded with respect to the same
    concern in the *Detariffing Order*, tariffs are not the only
    feasible way for carriers to establish legal relationships with
    customers.[^77] Non-dominant carriers do not necessarily need to
    negotiate contracts for service with each, individual customer and
    could find alternatives such as issuing short, standard contracts
    with basic information about rates, terms and conditions. We believe
    that these alternatives to tariffs are not unduly burdensome and
    warrant our review of our decision to require permissive detariffing
    of international services by CMRS providers. Moreover, we believe
    the negative consequences for consumers of the "filed-rate" doctrine
    likewise exist for consumers of international CMRS services and can
    only be eliminated with complete detariffing.[^78] In addition, as
    discussed above, we find persuasive the possibility that permissive
    detariffing for international interexchange services would generally
    undermine the pro-competitive benefits of an unregulated marketplace
    by not permitting carriers to respond quickly to changes in service
    offerings.[^79]

31. With respect to affiliated routes, the Commission concluded in the
    *CMRS Forbearance Order* that it should not detariff CMRS providers
    serving international routes where the CMRS carrier is affiliated
    with a foreign carrier that terminates U.S. international
    traffic.[^80] The Commission's reasoning was based upon the
    Commission's conclusions in the *Benchmarks Order* regarding the
    potential for anticompetitive price squeeze behavior on U.S.
    carriers' affiliated routes.[^81] As we discussed and proposed above
    with respect to the detariffing of non-dominant interexchange
    carriers that are affiliated with foreign carriers with market
    power, we believe that our proposed requirement for maintenance of
    price and service information will address any concerns that U.S.
    carriers on affiliated routes may engage in price squeeze
    strategies.[^82] Therefore, we also tentatively conclude that we
    should extend the application of the requirement that carriers
    maintain price and service information to CMRS providers of
    international interexchange services for only those routes on which
    they are affiliated with foreign carriers that possess market power.
    We tentatively conclude that we should not extend to CMRS providers
    the other requirements discussed in this Notice. In this regard, we
    note that such requirements are not currently applicable to the
    domestic services of CMRS providers. We seek comment on these
    tentative conclusions and the proposed modifications to our rules.

## Filing of Carrier-to-Carrier Contracts

32. Section 43.51 of the Commission's rules requires common carriers
    providing domestic services and dominant carriers providing
    international services to file with the Commission copies of
    carrier-to-carrier contracts for domestic and international
    services, respectively. In light of the proposed deregulatory
    policies we set forth above to detariff the international
    interexchange services of non-dominant carriers, we propose
    modifying Section 43.51 to simplify the language of the provision
    and clarify that the rule only applies to U.S. carrier contracts for
    common carrier service between the U.S. and foreign points
    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 included in the contract, except for U.S.
    carriers classified as dominant on a particular route due only to a
    foreign carrier affiliation pursuant to Section 63.10.[^83] Under
    the detariffing proposals set forward in this *Notice*, non-dominant
    carriers would disclose information about their international
    service offerings to the public, as well as maintain price and
    service information in order for the Commission to monitor
    compliance with its rules and policies. In this proceeding we
    address whether we should require the filing of these types of
    contracts with the Commission on an ongoing basis, regardless of
    whether they are currently required under the rule. We seek comment
    on the effect of Section 43.51 on our proposed detariffing policies
    and the accompanying proposed modifications to our rules. [^84]

33. Section 43.51, among other things,[^85] relates to the filing by a
    common carrier of contracts, agreements, concessions, licenses,
    authorizations or other arrangements to which it is a party.[^86] In
    that regard, Section 43.51 implements Section 211 of the
    Communications Act.[^87] Section 211(a) requires that every carrier
    file contracts with other carriers affecting traffic regulated under
    the Communications Act.[^88] Section 211(b), however, provides that
    the Commission \"shall also have the authority to exempt any carrier
    from submitting copies of such minor contracts as the Commission may
    determine.\"[^89] The Commission has found that Section 211(b) gives
    the Commission \"the discretion to exempt carriers from filing
    contracts, including those referred to in Section 211(a), when we
    determine that those contracts are of minor significance to the
    regulatory scheme.\"[^90]

34. The filing of copies of contracts between carriers helps the
    Commission to monitor whether carriers are following the
    Commission\'s rules or are otherwise acting in an anti-competitive
    manner.[^91] The Commission does not require that the contracts be
    filed, however, when the Commission determines that filing a copy of
    a contract is not useful in monitoring a carrier or that the burdens
    placed on the Commission and the carriers outweigh the benefits of
    having the carriers file copies of contracts.[^92] The Commission
    has found that in those situations, to the extent that a carrier
    acts in an anti-competitive manner or otherwise violates our rules
    or policies, the Commission can obtain these contracts and seek
    remedies against such improper activity through the Section 208
    complaint process initiated by either a competitor or the
    Commission. [^93] The Commission also retains 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.[^94]

35. In the context of common carrier service between the U.S. and
    foreign points, the Commission has been concerned with arrangements
    involving foreign carriers that possess market power on the foreign
    end of a route. For example, with regard to the International
    Settlements Policy (ISP),[^95] the Commission is concerned that a
    foreign carrier with market power would have the ability to
    "whipsaw" U.S. carriers because the foreign carrier may unilaterally
    set the prices, terms and conditions under which U.S. carriers are
    able to exchange traffic. [^96] The filing requirements in Section
    43.51 enable the Commission to enforce the ISP and maintain
    regulatory oversight of accounting rate agreements.[^97] In the *ISP
    Reform Order*, the Commission found, however, that foreign carriers
    that lack market power have no ability to whipsaw U.S. carriers, and
    the ISP therefore should not apply to settlements arrangements
    between U.S. carriers and foreign carriers that lack market power.
    Thus, it concluded that requiring the filing of copies of contracts
    with such foreign carriers is an unnecessary regulatory burden, and
    determined that U.S. carriers that conclude settlement rate
    arrangements with foreign carriers that lack market power in the
    foreign market no longer need to file copies of those
    contracts.[^98]

36. Similarly, with regard to the "No Special Concessions" rule, the
    Commission has found that an exclusive arrangement between a U.S.
    carrier and a foreign carrier that lacks market power would not
    result in harm to competition and consumers in the U.S. market.
    Accordingly, the "No Special Concessions" rule prohibits U.S.
    international carriers from agreeing to accept special concessions
    directly or indirectly from any foreign carrier with respect to any
    U.S. international route where the foreign carrier possesses
    sufficient market power on the foreign end of the route to affect
    competition adversely in the U.S. market.[^99] The rule is limited
    to arrangements with foreign carriers that have market power in
    their home market because if a foreign carrier with market power
    were to enter into an exclusive arrangement, competing carriers on
    the foreign end, if any, might not have sufficient capacity to
    accommodate rival U.S. carriers\' needs.[^100] If the foreign
    carrier lacks market power in the foreign market, on the other hand,
    the Commission has found that it would not have the ability to
    adversely affect competition in the U.S. market.[^101] Consequently,
    in the *ISP Reform Order*, the Commission also amended the "No
    Special Concessions" rule to eliminate the requirement that a U.S.
    carrier file a copy of an exclusive arrangement with a foreign
    carrier lacking market power under Section 43.51.[^102]

37. In the *ISP Reform Order*, the Commission further found that the
    \"Section 43.51 contract filing requirement should no longer apply
    to *any* U.S. carrier arrangement with a foreign carrier that lacks
    market power.\"[^103] We find, however, that the language of Section
    43.51 is difficult to follow and somewhat unclear on this issue. We
    propose to amend Section 43.51 to simplify the language of the rule
    and make clear that the rule generally only requires the filing of
    contracts for common carrier service between the U.S. and foreign
    points when the foreign carrier has market power in the foreign
    market.[^104]

38. The Commission has also found that it is not necessary to require
    the filing of copies of contracts between non-dominant carriers for
    U.S.-domestic services because the carriers do not have market
    power.[^105] The filing of these contracts is not necessary for the
    Commission to detect possible anti-competitive behavior by carriers
    because neither carrier has market power. We believe that carriers
    that lack market power will generally be unable to engage in
    anticompetitive behavior because of their lack of control over
    bottleneck facilities and competitive pressures from other carriers.
    We tentatively conclude that the same analysis applies to contracts
    between U.S. carriers regarding common carrier service between the
    U.S. and foreign points. We therefore propose to amend Section 43.51
    to eliminate the filing requirement if both contracting U.S.
    carriers lack market power.[^106] We seek comment on this tentative
    conclusion and proposal. We also seek comment on whether there are
    factors unique to the provision of international service which make
    the filing of contracts necessary.

39. We also seek comment on whether to amend Section 43.51(a) to remove
    the language regarding rights granted to a U.S. carrier by a foreign
    government.[^107] As an initial matter, we find this language
    confusing because it refers to rights granted by a foreign
    government while the rest of the subsection deals with contracts
    between carriers. We also question whether it is necessary to
    require carriers to file copies of agreements with foreign
    governments. As discussed above, we require the filing of copies of
    contracts to monitor whether carriers with market power are acting
    in a manner that may adversely affect competition in the U.S.
    market. As a general matter, we do not have that concern with
    agreements between U.S. carriers and foreign governments. We note
    that to the extent that a foreign government is acting as a foreign
    carrier by directly providing international telecommunications
    services, the contract filing requirements would apply. We seek
    comment on whether there are other reasons to retain this filing
    requirement, such as national security concerns. Commenters should
    address whether we should continue to require all or certain
    agreements between U.S. carriers and foreign governments under
    Section 43.51 or if we should eliminate the requirement.

40. In sum, we propose to simplify and clarify Section 43.51 to provide
    that the only copies of contracts that should be filed with the
    Commission are those U.S. carrier contracts for common carrier
    service between the U.S. and foreign points 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 included
    in the contract, except for U.S. carriers classified as dominant on
    a particular route due only to a foreign carrier affiliation.[^108]
    We also propose to make several other changes to Section 43.51 to
    make the rule easier to follow, and we propose amending Section
    63.21, regarding the conditions applicable to international
    authorizations, to reflect these changes. We seek comment on these
    proposed amendments to our rules.[^109] Commenters should address
    whether there are any competitive harms that the filing of copies of
    contracts between carriers that both lack market power would help
    prevent.

## Ex Parte Presentations

41. This proceeding shall be treated as a "permit-but-disclose"
    proceeding in accordance with the Commission's *ex parte*
    rules.[^110] Persons making oral *ex parte* presentations are
    reminded that memoranda summarizing the presentations must contain
    summaries of the substance of the presentations and not merely a
    listing of the subjects discussed. More than a one or two sentence
    description of the views and arguments presented is generally
    required.[^111] Other rules pertaining to oral and written
    presentations are set forth in Section 1.1206(b) of the Commission's
    rules as well.

## Initial Regulatory Flexibility Analysis

42. As required by the Regulatory Flexibility Act,[^112] the Commission
    has prepared this present Initial Regulatory Flexibility Analysis
    (IRFA) of the possible significant economic impact on small entities
    by the policies and rules proposed in this Notice. Written public
    comments are requested on this IRFA. Comments must be identified as
    responses to the IRFA and must be filed by the deadlines for
    comments on the Notice,[^113] including this IRFA, to the Chief
    Counsel for the Advocacy of the Small Business Administration. *See*
    5 U.S.C. § 603(a). In addition, the Notice and IRFA comments will be
    published in the Federal Register.

43. *Need for, and Objectives, of, the Proposed Rules:* The Commission
    is issuing this Notice of Proposed Rulemaking to review our
    regulatory regime for international interexchange telecommunications
    services, and to implement certain provisions of the 1996 Act. In
    light of the dramatic changes in the market for international
    interexchange services resulting from increased privatization and
    liberalization of foreign markets, the World Trade Organization
    (WTO) Basic Telecom Agreement, decreasing settlement rates and
    increased competition in the U.S. international services market, we
    believe it is timely for us to review our requirement that U.S.
    carriers file tariffs for international interexchange services under
    Section 203 of the Act. Because tariffs can limit the flexibility
    necessary for all U.S. carriers, including smaller carriers, to
    offer new services in a competitive market and may harm consumers
    through the effect of the 'filed rate doctrine," we propose
    requiring complete or mandatory detariffing, with limited
    exceptions, in this Notice of Proposed Rulemaking for the
    international interexchange services provided by non-dominant
    carriers. Complete detariffing will reduce carriers' filing costs,
    and, on balance, the public disclosure and maintenance of
    information requirements proposed in this item are minimal and do
    not outweigh the benefits to all U.S. carriers and U.S. consumers to
    be gained from detariffing. The objective of the Notice of Proposed
    Rulemaking is to provide an opportunity for public comment and to
    provide a record for a Commission decision on the issues stated
    above.

44. *Legal Basis:* We tentatively conclude that Section 10 of the
    Communications Act[^114] authorizes the Commission to forbear
    completely from the tariff requirements contained in Section 203 of
    the Communications Act. In addition, Section 11 of the
    Communications Act directs the Commission to undertake a biennial
    review of its regulations concerning the operations or activities of
    any provider of telecommunications services. Thus, the Notice is
    adopted pursuant to Sections 1, 2, 4, 10, 11, 201-205, 218, 220,
    226, 303(g), 303(r) and 332 of the Communications Act of 1934, as
    amended.[^115]47 U.S.C. §§ 151, 152, 154, 160, 161, 201-205, 215,
    218, 220, 226, 303(g), 303(r) and 332.

45. *Description and Estimate of the Number of Small Entities To Which
    the Proposed Rules Will Apply:* The RFA directs agencies to provide
    a description of, and, where feasible, an estimate of the number of
    small entities that may be affected by the proposed rules, if
    adopted.[^116] The Regulatory Flexibility Act defines the term
    "small entity" as having the same meaning as the terms "small
    business," "small organization," and "small business concern" under
    section 3 of the Small Business Act.[^117] 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 SBA.[^118] Any rule changes that might
    occur as a result of this proceeding could impact entities which are
    small business entities, as defined in Section 601(3) of the
    Regulatory Flexibility Act. The proposed rules in this Notice of
    Proposed Rulemaking will reduce regulatory burdens on all
    non-dominant providers of international interexchange services,
    including small business entities.

46. The SBA has developed a definition of small entities for telephone
    communications companies other than radiotelephone (wireless)
    companies. The Census Bureau reports that there were 2,321 such
    companies that had been operating for at least one year at the end
    of 1992.[^119] According to the SBA\'s definition, a wireline
    telephone company is a small business if it employs no more than
    1,500 persons.[^120] All but 26 of the 2,321 wireline companies
    listed by the Census Bureau were reported to have fewer than 1,000
    employees. Thus, even if all 26 of those companies had more than
    1,500 employees, there would still be 2,295 wireline companies that
    might qualify as small entities or small incumbent LECs. Although it
    seems certain that some of these carriers are not independently
    owned and operated, we are unable at this time to estimate with
    greater precision the number of wireline carriers and service
    providers that would qualify as small business concerns under the
    SBA\'s definition. Consequently, we estimate that fewer than 2,295
    of these wireline companies are small entities that might be
    affected by these proposals.

47. Specifically, the proposals contained in the Notice apply to
    entities seeking authorization to provide international service. The
    proposals contained in the Notice are intended to improve market
    efficiency by permitting carriers to respond to the dynamics of the
    marketplace and further the goals of the Communications Act. At this
    time, we are not certain as to the number of small entities that
    will be affected by the proposals. Agency data indicates there has
    been a steady increase in the number of Section 214 applications
    filed with the Commission. The total number of licensees is
    difficult to determine, because many licenses are jointly held by
    several licensees. Based on agency data, we would estimate that
    there could be 800 applicants that might be a small entity. The
    Commission encourages interested parties to comment on the proposals
    in the Notice.

48. *Description of Projected Reporting, Recordkeeping, and Other
    Compliance Requirements:* We believe that the proposed rules will
    reduce significantly the reporting burdens placed on small entities.
    The proposed rules would eliminate the requirement of filing tariffs
    for non-dominant interexchange carriers. These carriers would be
    required to retain business records containing price and service
    information regarding their international interexchange offerings.
    This information, however, is maintained by carriers in the normal
    course of business. The proposed rules only impose a requirement
    that providers of international interexchange services maintain this
    information for a period of at least two years and six months. It is
    likely that carriers maintain this information for this specific
    time period, as a normal business practice.

49. We propose that carriers adopt a public disclosure requirement to
    make information available to the public concerning current rates,
    terms, and conditions for all of their international interexchange
    services, in at least one location during regular business hours.
    For those carriers with Internet websites, we propose that the
    carriers make the information available on their websites and update
    the websites within twenty-four hours prior to making changes to the
    rates, terms, and condition of any international interexchange
    service. In lieu of tariffs, the public disclosure requirement will
    ensure that the information is readily available to the public in an
    accessible format

50. The rules also propose to modify the requirement for filing
    carrier-to-carrier contracts, thereby reducing the filing burden on
    most carriers. We propose to simplify and modify our rules and set
    forth specific criteria that would trigger the carrier contract
    filing requirement.

51. The proposals should enhance competition among providers of
    services, promote competitive market conditions and achieve benefits
    for the consumers while reducing he regulatory burdens on all
    non-dominant providers of international interexchange services,
    including small business entities.

52. *Steps Taken to Minimize Significant Economic Impact on Small
    entities, and Significant Alternatives Considered*: The RFA requires
    an agency to describe any significant alternatives that it has
    considered in reaching its proposed approach, which may include the
    following four alternatives: (1) the establishment of differing
    compliance or reporting requirements or timetables that take into
    account the resources available to small entities; (2) the
    clarification, consolidation, or simplification of compliance or
    reporting requirements under the rule for small entities; (3) the
    use of performance, rather than design standards; and (4) an
    exemption from coverage of the rule, or any part thereof, for small
    entities.

53. We believe that the proposals will facilitate the development of
    increased competition in the international telecommunications
    marketplace and provide more flexibility for carriers to respond to
    the dynamics of the marketplace. Accounting rate reform policies,
    market forces, and increased competitive entry into the U.S. market
    have led to substantial reductions in consumer rates for
    international interexchange services. We believe that tariffs are no
    longer necessary to ensure that charges, practices, classification
    or regulations are just and reasonable and are not unjustly or
    unreasonably discriminatory. In addition, we believe that our
    proposals will contribute to market efficiency by permitting
    carriers to respond to the dynamics of the marketplace.

54. In considering alternatives for small entities, we believe that the
    proposals contained in the Notice are the least burdensome on small
    entities. We do not propose to standardize the requirements because
    the information is unique to the carrier and may be maintained in a
    manner that is consistent with the carrier's business practices. We
    propose to reduce the administrative costs to small entities by
    eliminating the tariff filing requirement. In addition, the public
    disclosure requirement should not impose burdens on small entities
    because the information is maintained in the normal course of
    business.

55. In this Notice, we are proposing to extend the policies and rules
    regarding the detariffing of domestic interexchange services to the
    international interexchange services of non-dominant carriers. We
    request comment on whether small entities would be adversely
    affected by the proposals herein and whether the proposals will
    enable small entities to respond to the demands of the market with
    minimum regulatory oversight, delays, and expenses. We believe that
    our proposals would have either no impact, or would reduce, any
    economic burdens on small entities. After evaluating the comments in
    this proceeding, the Commission will further examine the impact of
    any rule changes on small entities and set forth findings in the
    Final Regulatory Flexibility Analysis.

56. *Federal Rules Which Overlap, Duplicate or Conflict with the
    Commission's Proposal*: None.

## Comment Filing Procedures

57. Pursuant to Sections 1.415 and 1.419 of the Commission's rules, 47
    C.F.R. §§ 1.415, 1.419, interested parties may file comments with
    the Secretary, FCC, in response to this Notice no later than
    November 17, 2000. Reply comments to these comments may be filed
    with the Secretary, FCC, no later than December 4, 2000. All
    pleadings are to reference IB Docket No. 00-202. Comments may be
    filed using the Commission's Electronic Comment Filing System (ECFS)
    or by filing paper copies. *See Electronic Filing of Documents in
    Rulemaking Proceedings*, 63 Fed. Reg. 24,121 (1998). Comments filed
    through the ECFS can be sent as an electronic file via the Internet
    to \<http://www/fcc/gov/e-file/ecfs.html\>. Generally, only one copy
    of an electronic submission must be filed. In completing the
    transmittal screen, commenters should include their full name,
    Postal Service mailing address, and the applicable docket or
    rulemaking number, which in this instance is IB Docket No. 00-202.
    Parties may also submit an electronic comment by Internet e-mail. To
    get filing instructions for e-mail comments, commenters should send
    an e-mail to <ecfs@fcc.gov,> and should include the following words
    in the body of the message, "get form \<your e-mail address\>." A
    sample form and directions will be sent in reply.

58. Parties who choose to file by paper must file an original and four
    copies of each filing. All filings must be sent to the Commission's
    Secretary, Magalie Roman Salas, Office of the Secretary, Federal
    Communications Commission, 445 Twelfth St., S.W., Washington, D.C.
    20554.

59. Parties who choose to file by paper should also submit their
    comments on diskette. These diskettes should be submitted to Peggy
    Reitzel, International Bureau, Telecommunications Division, 445
    Twelfth St., S.W., Room 6A822, Washington D.C. 20554. Such a
    submission should be on a 3.5 inch diskette formatted in an IBM
    compatible format using Word for Windows or compatible software. The
    diskette should be accompanied by a cover letter and should be
    submitted in "read only" mode. The diskette should be clearly
    labeled with the commenter's name, proceeding (including the docket
    number in this case, IB Docket No. 00-202), type of pleading
    (comment or reply comment), date of submission, and the name of the
    electronic file on the diskette. The label should also include the
    following phrase "Disk Copy -- Not an Original." Each diskette
    should contain only one party's pleadings, preferably in a single
    electronic file.

60. Regardless of whether parties choose to file electronically or by
    paper, parties should also file one copy of any documents filed in
    this docket with the Commission's copy contractor, International
    Transcription Services, Inc., 1231 20^th^ Street, N.W., Washington,
    D.C., 20036. Comments and reply comments will be available for
    public inspection during regular business hours in the FCC Office of
    Media Relations, Reference Operations Division, Room CY-A257, 445
    Twelfth Street, S.W. Washington, D.C. 20554. Copies also can be
    obtained from International Transcription Services, Inc. at 1231
    20^th^ Street, S.W., Washington, D.C. 20036, or by calling ITS
    at (202) 857-3800 or by faxing ITS at (202) 857-3805.

61. Comments and reply comments must include a short and concise summary
    of the substantive arguments raised in the pleading. Comments and
    reply comments must also comply with Section 1.49 and all other
    applicable sections of the Commission's rules.[^121] All parties are
    encouraged to utilize a table of contents, to include the name of
    the filing party and the date of the filing on each page of their
    comments length of their submission. We also strongly encourage that
    parties track the organization set forth in this Notice in order to
    facilitate our internal review process.

62. Written comments by the public on the proposed and/or modified
    information collections are due the same day comments on the Notice
    of Proposed Rulemaking are due. Written comments must be submitted
    by the Office of Management and Budget (OMB) on the proposed and/or
    modified information collections on or before 60 days after the date
    of publication in the Federal Register of the Notice of Proposed
    Rulemaking. In addition to filing comments with the Secretary, a
    copy of any comments on the information collection(s) contained
    herein 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 and to Edward Springer, OMB
    Desk Officer, Room 10236 NEOB, 725 17th Street, N.W., Washington, DC
    20503 or via the Internet to edward.springer@omb.eop.gov.

## Paperwork Reduction Act

63. This NPRM contains either a new or modified information collection.
    It will be submitted to the Office of Management and Budget (OMB)
    for review under the PRA. As part of its continuing effort to reduce
    paperwork burdens, we will invite the general public and the Office
    of Management and Budget (OMB), the general public, and other
    federal agencies to take the opportunity to comment on the
    information collections contained in this NPRM, as required by the
    Paperwork Reduction Act of 1995, Pub. L. No. 104-13. Comments should
    address: (a) whether the proposed 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 estimates; (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.

## Further Information

64. For further information regarding this proceeding, contact Kathryn
    O'Brien, Deputy Division Chief, Telecommunications Division,
    International Bureau, at (202) 418-0439 or <KOBrien@fcc.gov> or Lisa
    Choi, Attorney/Advisor, Telecommunications Division, International
    Bureau, at (202) 418-1384, or [LChoi@fcc.gov](mailto:Lchoi@fcc.gov).
    Information regarding this proceeding and others may also be found
    Initial Regulatory Flexibility Analysis.

# ORDERING CLAUSES 

65. 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 NOTICE
    OF PROPOSED RULEMAKING is hereby ADOPTED.

66. IT IS FURTHER ORDERED that, the Commission's Consumer Information
    Bureau, Reference Information Center shall send a copy of this
    NOTICE OF PROPOSED RULEMAKING, including the initial regulatory
    flexibility analysis, to the Chief Counsel for Advocacy of the Small
    Business Administration, in accordance with paragraph 603(a) of the
    Regulatory Flexibility Act, Public Law No. 96-354, 94 Stat. 1164, 5
    U.S.C. § 601, *et seq*. (1981).

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas Secretary

**APPENDIX A -- PROPOSED RULES**

**AMENDMENTS TO THE CODE OF FEDERAL REGULATIONS**

For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 C.F.R

parts 20, 42, 61, 63 and 64 as follows:

PART 20 -- COMMERCIAL MOBILE RADIO SERVICES

1.  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.

2.  Section 20.15 is amended by revising paragraph (c) to read as
    follows:

\(c\) Commercial mobile radio service providers shall not file tariffs
for international and interstate service to their customers,
international and interstate access service, or international and
interstate operator service. Sections 1.771-1.773 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, international and interstate
access service, and international and interstate operator service.

> 3\. Section 20.15 is amended by revising paragraph (d) to read as
> follows:

\(d\) 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. A commercial mobile radio service
provider is required to comply with the requirement in § 42.11 if it
provides international service to markets where it has an affiliation
with a foreign carrier that possesses market power and that collects
settlement payments from U.S. carriers. For purposes of this paragraph,
*affiliation* is defined in § 63.18(h)(1)(i) of this chapter.

**\*\*\*\*\***

PART 42 -- PRESERVATION OF RECORDS OF COMMUNICATIONS COMMON CARRIERS

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

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

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

**[§ 42.10 Public availability of information concerning interexchange
services.]{.underline}**

\(a\) 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.

\*\*\*\*\*

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

**[§ 42.11 Retention of information concerning detariffed interexchange
services.]{.underline}**

67. \(a\) 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 provider of international service
    shall only maintain such price and service information about its
    international service offerings and only for those routes on which
    the commercial mobile radio service provider is affiliated with a
    foreign carrier that possesses market power. 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.

\*\*\*\*\*

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

7\. 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, sec. 402(b)(2)(B), (c), 110 Stat. 56 (1996) as amended unless
otherwise noted. 47 U.S.C. 211, 219, 220 as amended.

8\. Section 43.51 is revised to read as follows:

**[§ 43.51 Contracts and concessions.]{.underline}**

\(a\) (1) Any carrier set forth in paragraph (b) of this section must
file with the Commission within 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 made
other than in writing, a certified statement covering all details
thereof must be filed by 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 filed document. 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 carriers must comply with the requirements of
paragraph (a) of this section:

\(1\) a communications common carrier that is engaged in domestic
communications and has not been classified as non-dominant pursuant to §
61.3 of this chapter,

\(2\) a U.S. common carrier, other than a provider of commercial mobile
radio services, that enters into a contract, agreement, concession,
license, authorization, operating agreement or other arrangement and
amendments thereto with a foreign carrier that has market power in a
foreign market, or

\(3\) a U.S. carrier that has been classified as dominant on any of the
international routes included in the contract, except for carriers
classified as dominant on a particular route due only to a foreign
carrier affiliation under section 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 filed with
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 filed on 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.

\(1\) If a U.S. carrier files an operating agreement (whether in the
form of a contract, concession, license, etc.) with a foreign carrier
with market power in that foreign market 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 § 64.1001 of this chapter. Unless a carrier is
providing switched voice, telex, telegraph, or packet-switched service
between the United States and a foreign point pursuant to an operating
agreement 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.

\(2\) If a carrier files an amendment to an existing operating agreement
with a foreign carrier with market power in that foreign market 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 § 64.1001 of this chapter.

\(3\) A carrier that enters into a contract, including an operating
agreement, with a carrier in a foreign point for the provision of a
common carrier service between the United States and that point is not
subject to the requirements of this subsection if the foreign point
appears on the Commission\'s list of international routes that the
Commission has exempted from the international settlements policy.

\(f\) 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 that route with the
Commission, may request confidential treatment under § 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 § 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 §
43.51(f).

Note 1 to § 43.51: To the extent that a foreign government provides
telecommunications services directly through a governmental
organization, body or agency, it shall be treated as a carrier for the
purposes of this section.

Note 2 to § 43.51: Carriers may 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 foreign carriers are subject to the contract filing requirements
set forth in this section. The Commission\' 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.

Note 3 to § 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>.

\(i\) 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).

\(ii\) 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.

PART 61 -- TARIFFS

> 9\. The authority citation for part 61 continues to read as follows:

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

> 10\. Section 61.3 is amended by revising paragraph (u) to read as
> follows:

**[§ 61.3 Definitions.]{.underline}**

\*\*\*\*\*

\(u\) *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 as defined in § 63.10 of this Chapter.

\*\*\*\*\*

11\. Section 61.19 is revised to read as follows:

**[§ 61.19 Detariffing of international and interstate, domestic
interexchange services.]{.underline}**

\(a\) Except as otherwise provided in paragraphs (b) and (c) 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.

> 12\. Section 61.28 is revised to read as follows:

**[§ 61.28 International dominant carrier tariff filing
requirements.]{.underline}**

\(a\) 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 pursuant to § 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
paragraphs (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 §
63.10 of this chapter are set forth in subpart C of this part.

13\. Section 61.74 is amended by removing paragraph (d) and re-designate
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

13. 14\. The authority citation for part 63 continues to read as
    follows:

Authority: Section 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.

15\. Section 63.10 is amended by revising paragraph (c)(1) to read as
follows:

[§ 63.10 Regulatory classification of U.S. international
carriers.]{.underline}

\*\*\*\*\*

\(c\) \*\*\*

\(1\) Authorized carriers regulated as dominant for the provision of
international communications services on a particular route for any
reason other than a foreign carrier affiliation pursuant to this section
shall file tariffs for those services as set forth in § 61.28 of this
chapter.

\*\*\*\*\*

> 16\. Section 63.17 is amended by revising paragraph (b)(3) to read as
> follows:

[§ 63.17 Special provisions for U.S. international common
carriers.]{.underline}

\*\*\*\*\*

\(b\) \*\*\*

\(3\) Authorized carriers filing tariffs pursuant to §§ 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;

\*\*\*\*\*

17\. Section 63.21 is amended by revising paragraph (b) to read as
follows:

[**§ 63.21** **Conditions applicable to all international Section 214
authorizations**]{.underline}**.**

\*\*\*\*\*

\(b\) Carriers must file copies of operating agreements entered into
with their foreign correspondents that possess market power within 30
days of their execution, and shall otherwise comply with the filing
requirements contained in [§ 43.51]{.underline} of this chapter.

\*\*\*\*\*

> 18\. Section 63.21 is amended by revising paragraph (c) to read as
> follows:

**[§ 63.21 Conditions applicable to all international Section 214
authorizations.]{.underline}**

\*\*\*\*\*

\(c\) Carriers regulated as dominant for the provision of international
communications services on a particular route for any reason other than
a foreign carrier affiliation under § 63.10 shall file tariffs pursuant
to Section 203 of the Communications Act, 47 U.S.C. 203, and
[part]{.underline} 61 of this chapter. Carriers regulated as
non-dominant, as defined in § 61.3 of this chapter, and providing
detariffed interexchange services pursuant to § 61.19 of this chapter
must comply with all applicable public disclosure, and maintenance of
information requirements in §§ 42.10, and 42.11 of this chapter.

\*\*\*\*\*

# CONCURRING STATEMENT OF COMMISSIONER HAROLD FURCHTGOTT-ROTH

*Re: 2000 Biennial Regulatory Review; Policy and Rules Concerning the
International, Interexchange Marketplace, IB Docket No. 00-202, Notice
of Proposed Rulemaking (rel. October 18, 2000).\
*

I applaud the Commission's decision to detariff the vast majority of
international telecommunications services. Tariffs are anachronistic
regulatory tools that have outlived their usefulness. Eliminating the
burdensome requirement that companies file monumental tariff documents
and that the FCC reviews them is a step in the right direction.
Moreover, detariffing eliminates the filed rate doctrine defense against
many consumer claims and moves the telecommunications marketplace closer
to a fully competitive traditional open market -- with regulation as the
exception rather than the rule.

Nonetheless, some aspects of today's Notice trouble me. Fundamentally,
the Notice is designed to create symmetry with the 1997 decision to
de-tariff domestic long distance service that was recently affirmed by
the Court of Appeals.[^122] I understand the goal of symmetry, however I
cannot support extending antiquated regulatory requirements to
international services simply because we imposed them domestically.
Instead, I believe the better approach would be to propose to eliminate
these obligations internationally and call for comment on changing these
requirements domestically. In a fast changing technological environment,
our rules need to evolve quickly as well. Waiting until the 2002
biennial review or later -- as some have proposed \-- to revisit this
requirement reflects regulation on "rotary dial" time not "Internet"
time.

Two examples illustrate this residual outdated approach. Today's Notice
proposes that all non-dominant international interexchange services make
information available on the Internet concerning current rates, terms,
and conditions for all of their international interexchange services.
Although one can dispute the ultimate necessity of such a rule in a
fully competitive market, such public disclosure may be sensible as we
transition away from the highly regulatory (but information intensive)
world of tariffs. The Notice goes from the marginally useful to the
completely useless, however, when it also proposes that carriers make
such rate, term, and condition information available in "at least one
location during regular business hours . . .. "[^123] In today's wired
world, Internet access is available in the vast majority of communities.
Whether the one mandated physical location for the file is Washington,
D.C. or Hilo, HI, it will virtually always be easier for all but a
random handful of Americans to access the records from the Internet than
to travel to the carrier's office. It's not that the requirement is all
that burdensome, it simply does not make any sense in today's wired
world. Moreover, the mandate creates a regulatory requirement that we
are duty bound to enforce. Do we really wish to define and police
"regular business hours" or what it means to "make available"?[^124]

Second, the Notice also adopts an old school view of what it means to
give notice to consumers about rates and terms. Based primarily on
concerns about the sufficiency of notice, the NPRM permits tariffs for
dial-around services and new customers of international carriers. [^125]
More specifically, the Notice posits that consumers in these contexts
have no way to receive notice of the rates and terms for these services
because there is not necessarily an existing relationship between the
parties. Placing hundreds of pages long documents in some government
building in Washington DC is a far cry from the meaningful notice that
can be placed on an Internet website. Yet, in the NPRM, for services
where it matters most, the Commission chooses to allow the 1950's style
notice of federal tariffs over the 21^st^ Century notice of the
Internet. Posting such information on the Internet achieves the same
goal -- while removing government paperwork and limiting the filed rate
doctrine defense for carriers.

In each of these examples, the majority is not willing to entertain
these streamlined alternatives because it will create asymmetry with the
domestic proceeding. However, I believe that such a deregulatory,
pro-consumer tact that takes advantage of current technological access
at least deserves public comment. We rarely have a chance to
thoughtfully examine the utility of new regulatory requirements in light
of rapid technological change -- we should not squander that opportunity
here. In the end, I would rather have a useful and updated rule, than an
outdated, but symmetrical one.

[^1]: The Communications Act of 1934, 47 U.S.C. §§ 151 *et seq.* The
    Telecommunications Act of 1996 (the 1996 Act) amends the
    Communications Act of 1934. Hereinafter, all citations to the
    Communications Act will be to the relevant section of the United
    States Code unless otherwise noted. The Communications Act of 1934,
    as amended, will be referred to herein as the Communications Act or
    the Act.

[^2]: *Joint Explanatory Statement of the Committee of Conference*, S.
    Conf. Rep. No. 230, 104^th^ Cong., 2d Sess. 113 (1996) (*Joint
    Explanatory Statement*).

[^3]: *See* 47 U.S.C. §§ 160, 160(d) (prohibiting the use of forbearance
    except as provided in Section 251(f) to the requirements of Sections
    251(c) or 271 until the Commission determines that the requirements
    have been fully implemented).

[^4]: *See* *Policy and Rules Concerning Rates for Competitive Common
    Carrier Services and Facilities Authorizations Therefor*, CC Docket
    No. 79-252, Notice of Inquiry and Proposed Rulemaking, 77 FCC 2d 308
    (1979) (*Competitive Carrier NPRM*); First Report and Order, 85 FCC
    2d 1 (1980) (*Competitive Carrier First Report and Order*); Further
    Notice of Proposed Rulemaking, 84 FCC Rcd 445 (1981) *(Competitive
    Carrier Further NPRM*); Second Further Notice of Proposed
    Rulemaking, FCC 82-187, 47 Fed. Reg. 17,308 (1982); Second Report
    and Order, 91 FCC 2d 59 (1982); Order on Reconsideration, 93 FCC 2d
    54 (1983); Third Report and Order, 48 Fed. Reg. 46,791 (1983);
    Fourth Report and Order, 95 FCC 2d 554 (1983) (*Competitive Carrier
    Fourth Report and Order*), *vacated, AT&T v. FCC*, 978 F.2d 727
    (D.C. Cir. 1992), *cert. denied*, *MCI Telecommunications Corp. v.
    AT&T*, 113 S.Ct. 3020 (1993); Fourth Further Notice of proposed
    Rulemaking, 96 FCC 2d 1191 (1984); Fifth Report and Order, 98 FCC 2d
    1191 (1984) (*Competitive Carrier Fifth Report and Order*); Sixth
    Report and Order, 99 FCC 2d 1020 (1985) (*Competitive Carrier Sixth
    Report and Order*), *vacated, MCI Telecommunications Corp. v. FCC*,
    765 F.2d 1186 (D.C. Cir. 1985) (collectively referred to as the
    *Competitive Carrier proceeding*).

[^5]: Section 203 requires every common carrier, except connecting
    carriers, to file with the Commission tariffs for itself and
    connecting carriers for the provision of interstate and foreign wire
    or radio communications. 47 U.S.C. § 203. *See* *In the Matter of
    Policy and Rules Concerning the Interstate, Interexchange
    Marketplace; Implementation of Section 254(g) of the Communications
    Act of 1934, as amended*, CC Docket No. 96-61, Notice of Proposed
    Rulemaking, 11 FCC Rcd 7141 (1996) (*Detariffing NPRM*); Report and
    Order, 11 FCC Rcd 9564 (1996); Second Report and Order, 11 FCC Rcd
    20,730 (1996) (*Detariffing Order*); *stay granted, MCI
    Telecommunications Corp. v. FCC*, No. 96-1459 (D.C. Cir. Feb. 13,
    1997); Order on Reconsideration, 12 FCC Rcd 15,014 (1997)
    (*Detariffing Order on Reconsideration*); Second Order on
    Reconsideration and Erratum, 14 FCC Rcd 6004 (1999) (*Detariffing
    Second Order on Reconsideration*); *stay lifted and aff'd*, *MCI
    WorldCom, Inc., et al. v. FCC*, 209 F.3d 760 (D.C. Cir. April 28,
    2000).

[^6]: "Complete detariffing" refers to a policy of neither requiring nor
    permitting nondominant interexchange carriers to file tariffs
    pursuant to Section 203 of the Act for their interstate, domestic
    interexchange services. "Permissive detariffing" refers to a policy
    of allowing, but not requiring, non-dominant interexchange carriers
    to file tariffs for such services.

[^7]: 47 U.S.C. § 160(a). The Commission, in making the public interest
    determination, is required to consider whether forbearance will
    promote competitive market conditions, including the extent to which
    forbearance will enhance competition among providers of
    telecommunications services. 47 U.S.C. § 160(b).

[^8]: *Detariffing NPRM*, 11 FCC Rcd at 7160, para. 33 (defering to this
    proceeding the question of whether the Commission should consider
    generally forbearing from requiring tariffs for international
    services provided by a non-dominant carrier, but seeking comment on
    whether to forbear from applying tariffs to the international
    portion of domestic and international bundled service offerings);
    *Detariffing Order*, 11 FCC Rcd at 20,781-83, paras. 94-98 (finding
    that there is insufficient evidence to determine if forbearance is
    required for the international portion of domestic and international
    bundled service offerings); *Detariffing Order on Reconsideration*,
    12 FCC Rcd at 15,043-44, paras. 51-52 (affirming decision that there
    is insufficient evidence to make a determination).

[^9]: *See* 47 C.F.R. § 61.41(a)(1) (imposing price caps).

[^10]: 47 U.S.C. § 161.

[^11]: 47 U.S.C. § 161(a)(2).

[^12]: *Id.*

[^13]: *Federal Communications Commission Biennial Review 2000*, CC
    Docket No. 00-175, Staff Report, FCC 00-346 (rel. Sept. 19, 2000).

[^14]: *See* *e.g.,* Alloy LLC Comments, General Services Administration
    Comments, Sprint Corp. Comments, Telecommunications Management
    Information Systems Coalition Comments, Verizon Wireless Comments,
    Worldcom, Inc. Comments (filed Oct. 10, 2000).

[^15]: *See infra* paras. 8-12.

[^16]: The results of the WTO basic telecommunications services
    negotiations are incorporated into the General Agreement on Trade in
    Services (GATS) by the Fourth Protocol to the GATS, April 30, 1996,
    36 I.L.M. 366 (1997). These results, as well as the basic
    obligations contained in the GATS, are referred to herein as the
    "WTO Basic Telecom Agreement." *See Rules and Policies on Foreign
    Participation in the U.S. Telecommunications Market*, IB Docket Nos.
    97-142 and 95-22, Report and Order and Order on Reconsideration, 12
    FCC Rcd 23,891 (1997) (*Foreign Participation Order*), Order on
    Reconsideration, FCC 00-339 (rel. September 19, 2000);
    *International Settlement Rates*, IB Docket No. 96-261, Report and
    Order, 12 FCC Rcd 19,806 (1997) (*Benchmarks Order*); Report and
    Order on Reconsideration and Order Lifting Stay, 14 FCC Rcd 9256
    (1999) (*Benchmarks Reconsideration Order*); *aff'd sub nom. Cable &
    Wireless P.L.C. v. FCC*, 166 F.3d 1224 (D.C. Cir. 1999); *1998
    Biennial Regulatory Review, Reform of the International Settlements
    Policy and Associated Filing Requirements*, IB Docket Nos. 98-148
    and 95-22, CC Docket No. 90-337 (Phase II), Report and Order and
    Order on Reconsideration, 14 FCC Rcd 7963 (1999) (*ISP Reform
    Order*).

[^17]: *See infra* Parts II.C & D. We note that these proposals are
    similar to those adopted in the domestic proceeding.

[^18]: *See Detariffing Order on Reconsideration*, 12 FCC Rcd at 15,018,
    para. 5. *See infra* Part II.A.3.

[^19]: *See Detariffing Second Order on Reconsideration*, 14 FCC Rcd at
    6015-16, para. 18. *See infra* Part II.B.

[^20]: *See infra* Part II.B.

[^21]: *See infra* Part II.D. We do not propose extending to CMRS
    providers the additional proposals set forth for interexchange
    carriers, except to the extent set forth in Part II.D. We note that
    the Commission has previously detariffed the domestic interexchange
    services of CMRS providers without such conditions, and has
    permissively detariffed the international services of CMRS providers
    to unaffiliated points. *See Implementation of Sections 3(n) and 332
    of the Communications Act, Regulatory Treatment of Mobile Services*,
    Second Report and Order, 9 FCC Rcd 1411 (1994) (*CMRS Second Report
    and Order*). *See* *Personal Communications Industry Association's
    Broadband Personal Communications Services Alliance's Petition for
    Forbearance for Broadband Personal Communications* Services,
    Memorandum Opinion and Order and Notice of Proposed Rulemaking, 13
    FCC Rcd 16,857 (1998) (*CMRS Forbearance Order*).

[^22]: *See infra* Part II.E.

[^23]: *See supra* note 7.

[^24]: 47 U.S.C. § 160(b).

[^25]: *Detariffing Order*, 20,739-47 paras. 16-27. *CMRS Forbearance
    Order*, 13 FCC Rcd at 16,884-85, paras. 55-57.

[^26]: *See supra* para. 4.

[^27]: *See Motion of AT&T Corp. to be Declared Non-Dominant for
    International* Services, Order, 11 FCC Rcd 17,963 (1996) (*AT&T
    International Non-Dominance Order*). *Id.* at 17,994-95, paras.
    82-85, and at 18,000, para. 101.

[^28]: The current international accounting rate system was developed as
    part of a regulatory tradition in which international
    telecommunications services were supplied through a bilateral
    correspondent relationship between national monopoly carriers. An
    accounting rate is the price a U.S. facilities-based carrier
    negotiates with a foreign carrier for handling one minute of
    international telephone service. Each carrier's portion of the
    accounting rate is referred to the settlement rate. In almost all
    cases, the settlement rate is equal to one-half of the negotiated
    accounting rate.

[^29]: *Benchmarks Order*, 12 FCC Rcd 19,806 (1997). The *Benchmarks
    Order* requires U.S. carriers to negotiate settlement rates that
    comply with the "benchmark" rates established by the Commission. The
    benchmark rates, and the transition schedule for achieving these
    rates, vary based upon a country's economic classification. In the
    *Benchmarks Order*, the Commission established benchmark settlement
    rates of \$0.15 per settled minute for upper income countries;
    \$0.19 for upper middle income and lower middle income countries;
    and \$0.23 for lower income countries and countries with teledensity
    \< 1. *Id.* at 19,815-16, para. 19. Since the *Benchmarks Order*
    took effect on January 1, 1998, at least 99% of the settled minutes
    for countries in the upper income category and 93% of the settled
    minutes for countries in the upper middle income category are in
    compliance with the benchmark rates. *See also Regulation of
    International Accounting Rates*, CC Docket No. 90-337, Phase II,
    Fourth Report and Order, 11 FCC Rcd 20,063 (1996) (*Flexibility
    Order*); *ISP Reform Order*, 14 FCC Rcd 7963 (1999).

[^30]: The U.S. average accounting rate is a figure composed of the
    rates between the United States and all international points where
    each country\'s rate is weighted by its minutes to and from the
    United States.

[^31]: FCC, Section 43.61 International Telecommunications Data, Fig. 6,
    January 2000.

[^32]: FCC, Section 43.61 International Telecommunications Data, Table
    A1, 1996 and 1998.

[^33]: Rates are based upon publicly available tariffs of AT&T, MCI
    Worldcom, and Sprint. Monthly recurring charges for calling plans
    for which these rates were available remained the same at \$3.00 per
    month or dropped to \$2.00 per month.

[^34]: *See* note 31.

[^35]: *Id*.

[^36]: *AT&T International Non-dominance Order*, 11 FCC Rcd at 17,980,
    para. 46.

[^37]: 47 U.S.C. §§ 201-202. Section 201(b) requires that "\[a\]ll
    charges, practices, classifications, and regulations for and in
    connection with such communication services, shall be just and
    reasonable, and any such charge, practice, classification or
    regulation that is unjust or unreasonable is hereby declared to be
    unlawful." 47 U.S.C. § 201(b). Section 202 declares it "unlawful for
    an common carrier to make any unjust or unreasonable discrimination
    in charges, practices, classifications, regulations, facilities, or
    services for or in connection with like communication service . . .
    ." 47 U.S.C. § 202.

[^38]: 47 U.S.C. § 208. *Detariffing Order*, 11 FCC Rcd at 20,742-43,
    para. 21 (ability under Section 208 to investigate and adjudicate
    complaints is sufficient to address illegal carrier conduct);
    *Competitive Carrier Sixth Report and Order,* 99 FCC 2d at 1029,
    para. 12 (tariffs "are not essential" to the Commission's ability to
    ensure that carriers' rates comply with the Act, because the
    Commission has "other means to ensure our enforcement of the
    mandates of the Act," -- including the Commission's Section 208
    complaint process); *CMRS Second Report and Order* at 1478-79.

[^39]: 47 U.S.C. § 160(a)(1).

[^40]: *Detariffing Order on Reconsideration*, 12 FCC Rcd at 15,022-24,
    paras. 12-13.

[^41]: It is well established that, pursuant to the "filed-rate"
    doctrine, in a situation where a filed tariff rate, term or
    condition differs from a rate, term, or condition set in a
    non-tariffed carrier-customer contract, the carrier is required to
    assess the tariff rate, term or condition. *See Armour Packing Co.
    v. United States*, 209 U.S. 56 (1908); *American Broadcasting Cos.,
    Inc. v. FCC*, 643 F.2d 818 (D.C. Cir. 1980); *see also Aero
    Trucking, Inc. v. Regal Tube Co.*, 594 F.2d 619 (7^th^ Cir. 1979);
    *Farley Terminal Co., Inc. v. Atchison, T. & S.F. Ry.,* 522 F.2d
    1095 (9^th^ Cir.), *cert. denied*, 423 U.S. 996 (1975).
    Consequently, if a carrier unilaterally changes a rate by filing a
    tariff revision, the newly filed rate becomes the applicable rate
    unless the revised rate is found to be unjust, unreasonable, or
    unlawful under the Communications Act. *See* 47 U.S.C. § 201(b);
    *see also Maislin Industries, U.S., Inc. v. Primary Steel, Inc.,*
    497 U.S. 116 (1990).

[^42]: 47 U.S.C. § 203(c).

[^43]: *Detariffing Order*, 11 FCC Rcd at 20,765-66, para. 60.

[^44]: We note that the Commission recently issued jointly with the
    Federal Trade Commission guidelines for the marketing practices of
    telecommunications common carriers in response to concerns about the
    effects of deceptive advertising on consumers. *In the Matter of
    Joint FCC/FTC Policy Statement for the Advertising of Dial-Around
    and Other Long-Distance Services to Consumers*, Policy Statement, 15
    FCC Rcd 8654 (2000).

[^45]: *Detariffing Order*, 11 FCC Rcd at 20,750, para. 37.

[^46]: 47 U.S.C. § 160(a).

[^47]: 47 U.S.C. § 160(b).

[^48]: *Detariffing Order*, 11 FCC Rcd at 20,773, para. 4, and at
    20,760, para 52.

[^49]: *Competitive Carrier Sixth Report and Order,* 99 FCC 2d at 1030,
    para. 13; *Detariffing Order*, 11 FCC Rcd at 20,760-61, para. 53.

[^50]: *Detariffing Order*, 11 FCC Rcd at 20,761, para. 54 (noting the
    accounts of commenters claiming that carriers refuse to negotiate
    requested terms and conditions on the grounds that the requested
    terms and conditions are not contained in carriers' tariffs and that
    the Commission would reject any differing terms and conditions).

[^51]: 47 U.S.C. § 160(a).

[^52]: "1+ dial-around services" are transactional services for which a
    consumer can "dial-around" its presubscribed long distance carrier
    by dialing a carrier access code, *i.e.,* 10-10-XXX, and access the
    network of another long distance carrier. "LEC-implemented new
    customer services" describe the services provided by a long distance
    carrier that a customer has selected by contacting its local
    exchange carrier rather than the long distance carrier directly. In
    both circumstances, a long distance carrier would likely be unable
    to contact the customer to provide notice of rate and service
    information prior to the completion of the call. *Detariffing Order
    on Reconsideration*, 12 FCC Rcd 15,014 at 15,026-41, paras. 18-44.

[^53]: Casual calling services are those services that do not require
    the calling party to establish an account with an interexchange
    carrier or otherwise presubscribe to a service.

[^54]: *Detariffing Order on Reconsideration*, 12 FCC Rcd at 15,031-32,
    para. 28.

[^55]: *Id.* at 15,032-33, para. 30.

[^56]: *Id.* at 15,034, para. 32.

[^57]: *Id.* at 15,034-35, para. 33.

[^58]: *Id.* at 15,037-38, para. 39.

[^59]: *See* Appendix A.

[^60]: *Detariffing Order*, 11 FCC Rcd at 20,745-46, para. 25.

[^61]: *Detariffing Order on Reconsideration*, 12 FCC Rcd at 15,050-54,
    paras. 66-73.

[^62]: *Detariffing Second Order on Reconsideration*, 14 FCC Rcd at
    6013-15, para. 16.

[^63]: *Detariffing Order on Reconsideration*, 12 FCC Rcd at 15,052,
    para. 69.

[^64]: *Detariffing Second Order on Reconsideration*, 14 FCC Rcd at
    6015-16, para. 18.

[^65]: *Id.* at 6015-16, para. 18.

[^66]: *Detariffing Order*, 11 FCC Rcd at 20,776-77, paras. 84-86.

[^67]: *Id.* at 20,777-78, para. 87. We note that we do not propose
    requiring that carriers make such supporting documentation available
    to the public.

[^68]: *Benchmarks Order*, 12 FCC Rcd at 19,896, para. 192.

[^69]: *Id.* at 19,911-12, para. 231. In the Commission's 1999
    *Benchmarks Reconsideration Order*, the Commission further narrowed
    the application of this condition to U.S. carriers with foreign
    carrier affiliates that possess market power. *Benchmarks
    Reconsideration Order*, 14 FCC Rcd 9256 (1999).

[^70]: *Benchmarks Order,* 12 FCC Rcd at 19,908-09, para. 224.

[^71]: *See supra* Part II.B.

[^72]: *CMRS Second Report and Order*, 9 FCC Rcd 1411 (1994). 47 C.F.R.
    § 332.

[^73]: *CMRS Forbearance Order*, 13 FCC Rcd at 16,884, para. 56.

[^74]: *Id.* at 16,885, paras. 57-58.

[^75]: *Id.* at 16,885-86, para 59.

[^76]: *See supra* Parts II.A.1-3.

[^77]: *Detariffing Order*, 11 FCC Rcd at 20,762-65, paras. 56-59.

[^78]: *See supra* Part II.A.2.

[^79]: *See supra* Part II.A.3.

[^80]: *CMRS Forbearance Order*, 13 FCC Rcd at 16,886-87, para. 60.

[^81]: *See supra* Part II.C.

[^82]: *Id. See supra* para. 26.

[^83]: 47 C.F.R. §§ 63.10, 43.51.

[^84]: 47 C.F.R. § 43.51. We note that the Commission has forborne from
    applying the contract filing provisions of 47 U.S.C. § 211 to CMRS
    providers. *See Implementation of Sections 3(n) and 332 of the
    Communications Act; Regulatory Treatment of Mobile Services,* GN
    Docket No. 93-252, 9 FCC Rcd 1411, 1480, 1511, paras. 181, 272, 275
    (1994). Further, the Commission\'s rules specifically state that
    CMRS providers are not required to \"\[f\]ile with the Commission
    copies of contracts entered into with other carriers . . . .\" 47
    C.F.R. § 20.15(b)(1). We will continue to follow that policy, and do
    not intend our proposals in this proceeding regarding the filing of
    contracts to apply to CMRS providers.

[^85]: Section 43.51 also contains a reporting requirement that applies
    to any U.S. carrier that interconnects an international private line
    to the U.S. public switched network at the carrier\'s switch, 47
    C.F.R. § 43.51(d), and the Commission\'s international settlements
    policy, 47 C.F.R. § 43.51(e).

[^86]: *See* 47 C.F.R. § 43.51(a).

[^87]: 47 U.S.C. § 211.

[^88]: 47 U.S.C. § 211(a).

[^89]: 47 U.S.C. § 211(b).

[^90]: *Amendment of Sections 43.51, 43.52, 43.53, 43.54 and 43.74 of
    the Commission\'s Rules to Eliminate Certain Reporting
    Requirements*, CC Docket No. 85-346, Report and Order, 1 FCC Rcd
    933, 934, para. 10 (1986) (*Reporting Streamlining Order*) .

[^91]: *See, e.g, Foreign Participation Order*, 12 FCC Rcd at 24007,
    para. 259 (\"\[O\]ur contract filing requirement in Section 43.51 of
    the Commission\'s rules enables us to detect instances where
    carriers enter into arrangements that are inconsistent with our
    rules and policies.\").

[^92]: *See Reporting Streamlining Order*, 1 FCC Rcd 933, 934, paras.
    2-4, 10.

[^93]: 47 U.S.C. § 208. *See Detariffing Order on Reconsideration*, 12
    FCC Rcd at 15051, para. 68 (\"\[Commission\] can remedy any carrier
    conduct that violates the requirement that carriers make
    individually-negotiated service arrangements available to
    similarly-situated customers through the section 208 complaint
    process. . .\").

[^94]: *Reporting Streamlining Order*, 1 FCC Rcd at 933, para. 3.

[^95]: The ISP, among other things, requires U.S. telecommunications
    carriers to pay nondiscriminatory rates for termination of
    international traffic in foreign countries. 47 C.F.R. § 43.51(d).

[^96]: "Whipsawing" is a practice that occurs when a foreign carrier
    with monopoly power pits competing U.S. carriers against one another
    in settlement rate negotiations, exploiting the fact that U.S.
    carriers unwilling to pay settlement rates demanded by foreign
    carriers would lose business on those routes to higher-bidding U.S.
    competitors, as there are no alternative means of terminating
    international traffic. The Commission has determined that this
    practice can be detrimental to U.S. consumers as it can drive up the
    cost to U.S. carriers of terminating international traffic in
    foreign markets and hence, the prices to U.S. consumers. *ISP Reform
    Order*, 14 FCC Rcd at 79773-74, para. 31.

[^97]: *See 1998 Biennial Regulatory Review: Reform of the International
    Settlements Policy and Associated Filing Requirements*, IB Docket
    Nos. 98-148 and 95-22, CC Docket No. 90-337 (Phase II), Notice of
    Proposed Rule Making, 13 FCC Rcd 15,320 at 15,328-29, para. 21 (*ISP
    Reform NPRM*).

[^98]: *ISP Reform Order*, 14 FCC Rcd at 7971-73, paras. 21-29. *See
    also* 47 C.F.R. § 43.51(g).

[^99]: 47 C.F.R. § 63.14. The specific types of arrangements covered by
    the "No Special Concessions" rule are set forth in 47 C.F.R. §
    63.14(b). *See also Foreign Participation Order*, 12 FCC Rcd at
    23960-62, para. 163 (carriers must file contracts under Section
    43.51).

[^100]: *Foreign Participation Order*, 12 FCC Rcd at 23,958, para. 157.

[^101]: *Id.* at 23,958, para. 158; *ISP Reform Order*, 14 FCC Rcd at
    7971-73, paras. 21-29.

[^102]: *ISP Reform Order*, 14 FCC Rcd at 7980-81, para. 49.

[^103]: *Id.* at 7972, para. 29 (citing *ISP Reform NPRM*, 13 FCC Rcd
    15,320, 15,328-29, para. 21) (emphasis added).

[^104]: Concurrently with the release of the *ISP Reform Order*, the
    Commission released a Public Notice containing a list of foreign
    carriers that are presumed to possess market power in foreign
    markets for purposes of determining when to apply the ISP, the "No
    Special Concessions" rule, and the Commission\'s rules governing the
    provision of switched services over private lines. *See List of
    Foreign Telecommunications Carriers that are Presumed to Possess
    Market Power in Foreign Telecommunications Markets*, Public Notice
    DA 99-809 (correction rel. June 18, 1999). The list will be updated
    periodically. The most recent version is available from the
    International Bureau\'s World Wide Web site at
    \<http://www.fcc.gov/ib\>.

[^105]: *See Amendment of Sections 43.51, 43.52, 43.53, 43.54 and 43.74
    of the Commission\'s Rules to Eliminate* *Certain Reporting
    Requirements*, CC Docket No. 85-346, Notice of Proposed Rule Making,
    102 FCC 2d 531, para. 4 (\"Due to non-dominant carriers\' lack of
    market power, and the competitive forces which surround them, we
    conclude that any contract between non-dominant carriers can be
    reasonably interpreted as \'minor\' and thus subject to our
    exemption power under Section 211(b).\"). *See also Reporting
    Streamlining Order*, 1 FCC Rcd at 933-34, paras. 2-3.

[^106]: In the situation where there are more than two contracting
    carriers, the contracts would need to be filed if any one of the
    carriers has market power on any of the routes included in the
    contract.

[^107]: *See* 47 C.F.R. § 43.51(a)(3).

[^108]: *See* 47 C.F.R. § 63.10.

[^109]: Proposed revisions to Sections 43.51 and 63.21 are included in
    Appendix A.

[^110]: 47 C.F.R. §§ 1.1200, 1.1206; *Amendment of 47 C.F.R. § 1.1200 et
    seq. Concerning Ex Parte Presentations in Commission Proceedings*,
    GC Docket No. 95-21, Report and Order, 12 FCC Rcd 7348 (1997).

[^111]: 47 C.F.R. § 1.1206(b)(2).

[^112]: *See* 5 U.S.C. § 603. The RFA, *see* U.S.C. § 601 *et. seq.*,
    has been amended by the Contract With American Advancement Act of
    1996, Pub. L. No. 104-121, 110 Stat. 847 (1996)(CWAAA). Title II of
    the CWAAA is the Small Business Regulatory Enforcement Fairness Act
    of 1996 (SBREFA).

[^113]: *See infra* paras. 57-62.

[^114]: 47 U.S.C. § 160.

[^115]: *See* 47 U.S.C. §§ 151, 152, 154, 160, 161, 201-205, 215, 218,
    220, 226, 303(g), 303(r) and 332.

[^116]: 5 U.S.C. § 63(b)(3).

[^117]: *Id*. § 601(3).

[^118]: *Id*. § 632.

[^119]: U.S. Department of Commerce, *Bureau of the Census, 1992 Census
    of Transportation, Communications, and Utilities: Establishment and
    Firm Size*, at Firm Size 1‑123 (1995).

[^120]: 13 C.F.R. § 121.201, Standard Industrial Classification (SIC)
    Code 4812.

[^121]: 47 C.F.R. § 1.49.

[^122]: MCI Worldcom, Inc. v. FCC, 209 F.3d 760 (D.C. Cir. 2000).

[^123]: ¶ 5.

[^124]: The Commission has already had difficulty defining and enforcing
    these terms in the broadcast context. *See Queen of Peace Radio*, 15
    FCC Rcd. 1934 (EB 2000)(imposing \$ 7000 forfeiture for failure to
    maintain open files during "normal business hours"), *recon.
    denied*, 15 FCC Rcd. 7538 (EB 2000), application for review granted
    and forfeiture cancelled, 2000 WL 1051790 (2000).

[^125]: See ¶ 20.