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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C.  20554

In the Matter of                    )
                                     )
PHILIPPINE LONG DISTANCE             )
TELEPHONE COMPANY,                   )
     Complainant                     )
                                     )
     v.                             )    File No. E-95-29
                                     )
INTERNATIONAL TELECOM, LTD.,         )
D/B/A/ KALLBACK DIRECT,             )
     Defendant                       )

                  MEMORANDUM OPINION AND ORDER
                                
      Adopted:  March 22, 2000;  Released:  March 29, 2000

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

                        I.  INTRODUCTION

     1.   In this Order, we deny a Petition for Reconsideration (Petition) filed by
International Telecom, Ltd., d/b/a/ Kallback Direct (ITL) concerning the lawfulness of providing
call-back access to customers located in the Philippines.  ITL asks us to reconsider the
Commission's Memorandum Opinion and Order in which the Commission granted a complaint
filed by the Philippine Long Distance Telephone Company (PLDT), finding that ITL violated the
Commission's policy by using the uncompleted call signalling configuration of call-back to provide
international service to customers in the Philippines, where the use of call-back is unlawful.    For
the reasons discussed below, we deny ITL's Petition.

                        II.  BACKGROUND

A.  The Call-Back Proceeding

     2.   "Call-back" is a technology used to provide international telecommunications
service from a foreign country through a U.S. switch.  In the Call-Back Proceeding, the
Commission stated generally that the use of call-back utilizing uncompleted call signalling was
consistent with its policy favoring resale of international switched service.  The Commission
concluded that call-back "advances the public interest, convenience, and necessity by promoting
competition in international markets and driving down international phone rates, [and that it] is in
the best interests of consumers--and eventually of economic growth--around the world"  

     3.   Notwithstanding its recognition of this procompetitive policy, the Commission
required U.S. carriers to provide call-back service "in a manner that is consistent with the laws of
countries in which they operate."  The Commission reaffirmed this requirement in its
Reconsideration Order, stating that "U.S.-based carriers may not offer international call-back using
uncompleted call signalling in countries that have specifically prohibited this practice."

B.  The PLDT Complaint

     4.   On May 8, 1995, PLDT filed a complaint with the Commission alleging, inter alia,
that ITL violated the Commission's requirements in the Call-Back proceeding by offering
international common carrier service using call-back to customers in the Philippines, a country that
prohibited call-back.  In the ITL Order, the Commission reached the following conclusions:  (1)
pursuant to Section 208 of the Communications Act of 1934, as amended (the Act), PLDT had
standing to file its complaint against ITL; (2) ITL was acting as a common carrier in its provision of
service to the Philippines, and was, therefore, subject to Commission regulation; (3) PLDT made a
sufficient showing under the criteria set out in the Call-Back Proceeding that the Philippine
government had declared unlawful the use of call-back in its country and had taken enforcement
action against several carriers providing the service; and (4) in providing call-back in the
Philippines via use of the uncompleted call signalling configuration, ITL violated the requirements
of the Commission's Call-Back Proceeding and Section 214 of the Act.  Based on the
Commission's conclusions, the Commission directed ITL to terminate its call-back service to the
Philippines to the extent that it used uncompleted call signalling.

                        III.  DISCUSSION

     5.   In its Petition, ITL argues that the Commission erred in granting PLDT's complaint. 
ITL asserts that the Commission's decision conflicts with its position that call-back using
uncompleted call signalling comports with U.S. and international law, and that the Commission
misconstrued the doctrine of international comity.  ITL also argues that the Commission ignored
the procedural requirements of the Call-Back Reconsideration and failed to follow the
Commission's own requirements for enforcement of foreign laws.  Lastly, ITL contends that the
Commission erred by not considering previous comments by the Philippine government that, ITL
asserts, controverts the evidence that the complainant presented regarding the effect of Philippine
law.  We address these arguments below.  We note at the outset, however, that some of ITL's
arguments ultimately question the wisdom of the Commission's policy on international call-back.
In resolving this formal complaint proceeding, we apply existing Commission rules and orders, and
our decision here has no bearing on our evaluation of whether to modify these policies in the future.

A.  The Commission's Policy on Call-Back

     6.   We reject ITL's claim that the Commission's holding in the ITL Order was
inconsistent with the Commission's previously-stated position on international call-back.  As ITL
correctly observed, the Commission has favored call-back since mid-1994, and has noted its
positive impact on competition and prices in the international telecommunications arena.  The
Commission's decision in the ITL Order is nevertheless consistent with the Call-Back Proceeding. 
Despite the Commission's support for call-back as a procompetitive policy, the Commission
decided in the Call-Back Proceeding to forbid U.S. carriers from providing call-back in countries
that "clearly and explicitly prohibited this offering by statute or regulatory decision."  In
determining whether a foreign government prohibits call-back, the Commission requires specific
documentation of the relevant legal restrictions, evidence of violations by particular carriers, and a
description of enforcement measures.  After carefully evaluating the evidence presented by PLDT,
the Commission found in the ITL Order that it had made a sufficient showing that call-back was
indeed prohibited in the Philippines.  

B.  The Doctrine of International Comity

     7.   We also reject ITL's claims that the Commission has misconstrued the doctrine of
international comity and that the ITL Order conflicts with the Commission's previous statement
that foreign governments bear the responsibility for enforcing their domestic laws.  As the
Commission recognized in the Call-Back Reconsideration, choosing to honor a provision of
foreign law or regulation is discretionary, and with respect to call-back, some foreign countries'
laws and regulations may conflict with U.S. policy.  The Commission nevertheless concluded that
given the unique characteristics of call-back, it would be appropriate to observe a foreign 
government's determination that call-back violated its domestic laws, and, in some instances, to
assist in the foreign government's law enforcement efforts.  

     8.   ITL argues that the Commission should not enforce a foreign law that is contrary to
U.S. policy unless there are "exceptional circumstances." The Commission found in the Call-Back
Reconsideration that the circumstances at that time surrounding the call-back issue were
sufficiently exceptional that, as a matter of international comity, the Commission should prohibit
U.S. carriers from providing call-back in countries that prohibit it.  We decline to disturb that
determination in this proceeding.  In the ITL Order, the Commission found that the procedures
established in the Call-Back Reconsideration were followed, and we affirm that decision here.      
     9.   We also reject ITL's assertion that the Commission has incorrectly accorded to a
foreign private interest rights properly accorded only to foreign governments.  While it is true that
the procedures set forth in the Call-Back Proceeding relating to requests for law enforcement
assistance apply only to requests from foreign governments, nothing the Commission said in that
Proceeding precludes a nongovernmental entity from filing a complaint under Section 208 of the
Act.  As the Commission explained in its ITL Order, PLDT's complaint was properly filed pursuant
to Section 208 of the Act. It was filed by a "person" against a carrier (ITL) for alleged violations
of the Act, a Commission order, or a Commission rule.  The instant proceeding is not a matter of
mutual cooperation between governments but rather is a dispute between private parties.  We
therefore reject ITL's claim that in granting PLDT's complaint, the Commission misconstrued the
international comity concerns underlying the Call-Back Reconsideration.

C.  The Call-Back Reconsideration Order Procedural Requirements

     10.  In a related vein, we find unpersuasive ITL's argument that the Commission erred in
declaring that the procedures set forth in the Call-Back Reconsideration were irrelevant to the
Section 208 complaint.  In the Call-Back Proceeding, the Commission made two distinct rulings: 
(1) U.S. carriers may not provide service using call-back to countries where call-back was clearly
prohibited, and, (2) foreign governments may obtain the Commission's assistance by following
certain procedures.  ITL persists with its argument that unless PLDT follows the procedures by
which foreign governments may seek U.S. government assistance in enforcing their laws, PLDT
may not file its complaint.    But as the Commission explained in the ITL Order, as a private
corporation PLDT has every right to file a section 208 complaint, regardless of the procedures
prescribed for foreign governments.  While PLDT is required to satisfy the same quantum of proof
as a government entity regarding the effect of Philippine law,  we conclude that PLDT has made a
sufficient showing in this regard.  As the Commission previously has held, PLDT was not
required to follow the procedures set forth in the Call-Back Proceeding for foreign governments
seeking U.S. law enforcement assistance.

     11.   ITL also claims that section 208 requires a complainant to allege a substantive
violation of the Act, and that PLDT has not done so.   ITL's view of section 208 is too restrictive. 
Under the Commission's general pleading requirements, formal complaints against common
carriers must, inter alia, contain a complete statement of facts, which if true, are sufficient to
constitute a violation of the Act, or of a Commission rule, or order.  Here, PLDT alleged a
violation of the Commission's order in the Call-Back Proceedings.  Accordingly, the complaint was
proper under section 208.

     12.  Finally, ITL restates its earlier argument that the Commission's determination not to
grant immediately ITL's Section 214 application justifies ITL's attempt to offer service to the
Philippines as a private carrier.  The Commission explained in the ITL Order why this argument
fails and we decline to address it again here.  Reconsideration generally is not available for
purposes of rearguing matters on which there has been deliberation and decision.

D.  Enforcement of Foreign Laws

     13.  We also reject ITL's assertion that the Commission erred in its ITL Order because it
inappropriately enforced foreign laws.  ITL argues that under the Call-Back Reconsideration, call-
back using uncompleted call signalling can only be considered unlawful when a complainant shows
that a foreign government has sought the assistance of the U.S. government in its law enforcement
efforts, in addition to showing that the foreign government has clearly made call-back illegal and
has failed in its efforts to enforce its call-back prohibition against U.S. carriers.  Once again, ITL
confuses the Call-Back Reconsideration procedures with the section 208 complaint process.  As the
Commission explained in the ITL Order and above, the section 208 complaint process is
independent of the Call-Back Reconsideration procedures applicable to foreign governments
seeking U.S. law enforcement assistance.    

     14.  Furthermore, we reject ITL's assertion that there has been no demonstration that any
law, statute, or ordinance of the Philippines prohibits uncompleted call signalling call-back, and its
argument that much of the evidence relied upon by the Commission fails to support this
proposition.  PLDT submitted into evidence the Memorandum Circular, issued January 16, 1995
by the National Telecommunications Commission (NTC), an agency of the Philippine government,
which directs anyone offering call-back to cease and desist unless previously authorized.  The
Memorandum Circular not only describes the general policy that offering any communications
service without NTC authorization is against the law, but also expressly orders anyone offering
call-back to stop doing so, unless authorized by the NTC.  PLDT also submitted the May 1996
Kintanar letter.  This letter is more than simply a list of U.S. carriers, as suggested by ITL.  To the
contrary, it was set in the context of "tak[ing] action against U.S. carriers that continue to provide
international call-back service to the Philippines in spite of the prohibition for such service in our
country."  The evidence sufficiently demonstrates that the government of the Philippines prohibits
call-back, and meets the standards set forth in the Call-Back Reconsideration.

E.  International Settlement Rates Proceeding

     15.  Finally, we are not persuaded that certain comments made by the Philippine
government in an unrelated context contradict the Commission's conclusion that Philippine law
prohibits call-back.  ITL points to comments submitted by the NTC in the International Settlement
Rates proceeding which state that the Philippine government is generally committed "to allowing
or encouraging competition."  ITL argues that this statement contradicts the Commission's
determination that the Philippine government has prohibited call-back.  We disagree.   The record
evidence discussed above demonstrates to our satisfaction that the Philippine government has
prohibited call-back.  The NTC's general policy on competition has no necessary bearing on this
issue.  Accordingly, we find ITL's arguments in this regard unpersuasive.

                    IV.  OUTSTANDING MOTIONS

A.  Motions to Strike

     16.  We grant ITL's motion to strike the six pages of material that PLDT attached to its
Opposition to ITL's Petition for Reconsideration.  The attachments submitted by PLDT fail to
address the issues raised in ITL's Petition and are thus irrelevant to our reconsideration of the ITL
Order.  PLDT submitted this material as proof that ITL continues to offer call-back to the
Philippines, an issue that is not germane to any of the issues decided in the ITL Order. 
Accordingly, with respect to the attachments to PLDT's Opposition, and the references in the
Opposition to those attachments, we grant ITL's motion.

     17.  We deny ITL's Motion to Strike PLDT's reference to a letter from the Chief of the
Telecommunications Division, International Bureau, to the Chairman of the Philippine National
Telecommunications Commission.  ITL claims that it has been unable to locate the document and,
therefore, unable to respond to it.  As PLDT correctly points out in its opposition to the motion to
strike, this letter was attached to PLDT's Reply Brief, filed March 29, 1996, as tab 18 of the
appendix.  

B.  Motion to Dismiss

     18.  ITL also filed a motion to dismiss the complaint, presenting the same arguments on
the issues of jurisdiction, lack of a cause of action, and standing that it has argued throughout this
proceeding.  We have already resolved these issues in favor of the complainant with this order. 
ITL also raised two issues regarding PLDT's entitlement to damages.  On June 16, 1998, the
Enforcement Division, Common Carrier Bureau, granted PLDT's motion to withdraw its
supplemental complaint for damages.  Accordingly, we dismiss as moot those portions of the
Motion to Dismiss.

              V.  CONCLUSION AND ORDERING CLAUSES

     19.  For the reasons discussed above, we conclude that the Commission did not err in its
findings that ITL violated the requirements of the Call-Back Proceeding as well as Section 214 of
the Act.  We therefore deny ITL's Petition for Reconsideration.  

     20.  Accordingly, IT IS ORDERED, pursuant to Sections 1, 4(i), 4(j), 208, and 405 of
the Act, 47 U.S.C.  151, 154(i), 154(j), 208, 405, that the Petition for Reconsideration filed by
ITL IS DENIED.

     21.  IT IS FURTHER ORDERED that the Motion to Strike, filed by ITL, IS
GRANTED IN PART and DENIED IN PART.  

     22.  IT IS FURTHER ORDERED that the Motion to Dismiss the Formal Complaint,
filed by ITL, IS DISMISSED.  


                         FEDERAL COMMUNICATIONS COMMISSION



                              Magalie Roman Salas
                              Secretary

SEPARATE STATEMENT OF COMMISSIONER HAROLD FURCHTGOTT-ROTH

Re: Philippine Long Distance Company v. International Telecom, Ltd., File No. E-95-29,
Philippine Long Distance Company v. USA Global Link. Inc., File No. E-95-33.

I have no qualms with the bottom lines reached in these two orders.  In fact, I believe that
generally enforcement decisions should apply the law as they find it.  Here, we have held that "U.S.
carriers may not offer international call-back using uncompleted call signalling in countries that
have specifically prohibited this practice."  Therefore I believe it is proper to apply that standard
to Global Link and International Telecom.  

Nonetheless, I want to emphasize that today's decisions in no way reflect my endorsement of our
current international call-back policies.  I am increasingly troubled by the idea that a foreign
government can limit the otherwise lawful operations of U.S. carriers.  Despite the Commission's
conclusion that international call-back services are pro-competitive and strengthen the marketplace,
our current policy allows a foreign government (often also the owner of the foreign monopoly
carrier) to snuff out these competitive services.  In light of these doubts and the pending rulemaking
on this issue, I write separately to clarify the limited nature of today's decisions.