Academic journal article The George Washington Journal of International Law and Economics

The FCC's Call-Back Order: Proper Respect for International Comity?

Academic journal article The George Washington Journal of International Law and Economics

The FCC's Call-Back Order: Proper Respect for International Comity?

Article excerpt

I. INTRODUCTION

International comity is based on the principle of respect.' Comity is implicated where domestic and foreign laws conflict.2 When a conflict occurs, a country must decide whether to respect the foreign law or to enforce its own domestic law.3 In making such a decision, the domestic body balances domestic public interests against international considerations.4 The domestic body is under no obligation to abide by the foreign law; the decision of whether to respect foreign law is entirely discretionary.5

The Federal Communications Commission's (Commission) responsibilities include regulating telecommunications operators offering services between the United States and foreign countries.6 In its exercise of this obligation, the Commission has at times discussed international comity, but the Commission has never been presented with a conflict between foreign and domestic law.7

In VIA USA, Ltd. (Call-Back Order 1), the Commission approved three telecommunications companies' applications to provide international "call-back services."8 A year later, the American Telegraph and Telephone Company (AT&T) challenged the decision by submitting a petition for reconsideration. After a reconsideration proceeding (Call-Back Order II), however, the Commission affirmed its decision to grant the applications.9

The Commission based its Call-Back Order II decision on several domestic legal factors.lo In addition, the Commission elaborated on its concerns about international law and international comity. 11 The Commission concluded that "as a matter of international comity. . . [it] should prohibit carriers authorized to provide call-back service utilizing uncompleted call signalling from providing this offering in countries where it is expressly prohibited. We would expect no less from foreign governments in a comparable context" 12 This prohibition appears, on its face, to be an act of respect for foreign law. The Commission's conclusions in Call-Back Order II, however, when coupled with Call-Back Order ITs enforcement procedures requiring foreign governments to take certain steps before the Commission will act, make it difficult for foreign governments to block a U.S. call-back operator from providing services in those foreign countries.

This Note explores whether Call-Back Order II properly respects the doctrine of international comity. Part II of this Note describes how call-back services operate and discusses the Commission's rationale in favoring this form of international service. Part III discusses U.S. treatment of comity in its courts and administrative agencies in order to provide a framework for analyzing the Commission's handling of comity in Call-Back Order II. Part IV elaborates on Call-Back Order II, including its procedural history and comments filed during proceedings. Finally, Part V analyzes whether the Commission has applied comity in a manner consistent with U.S. law and recommends ways that the Commission can better serve comity.

II. OVERVIEW OF CALL-BACK SERVICES AND COMMISSION OBJECIWES

A. Inernational Call^Back

1. How Call-Back Works

The term "call-back" gets its name from the way in which the service operates.ls The user in a foreign country dials a number that is usually in the United States.l4 After one ring the user hangs up.15 A computer at the other end of the line recognizes the number and immediately "calls back" the user.l6 After picking up the call-back, the user gets a U.S. dial tone and is able to make calls at U.S. international long-distance calling rates.l7

2. The Need for Call-Back

In order to understand how call-back works, one must also understand why call-back is an attractive option for a consumer utilizing international telephone services. International calling rates for telephone calls originating outside the United States are generally much higher than the rates for international telephone calls originating inside the United States. …

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