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(#O"8$,^(^(JJH"Ԍ X-ԙx2.` ` Discussion  X- ` x 12.` ` The threshold substantive question that the Commission must answer before  x>treating ITL as a common carrier is whether its service is being offered on a common carrier  X- xbasis.%TM {O -#X\  P6G;gP#эXxSouthwestern Bell Tel. v. FCC, 19 F.3d 1475, 1484 (D.C. Cir. 1994).(#Ʃ The Communications Act defines a common carrier as "any person engaged as a  X- xcommon carrier for hire."4&BTM yO -  #X\  P6G;gP#э Xx47 U.S.C.  153(10). In addition, the Commission's regulations state that a common carrier is "any person engaged in rendering communication service for hire to the public." 47 C.F.R.  21.2.(#4 Common carriers may offer their services as facilitiesbased carriers,  Xv- x.or as resellers.'vTM {O-#X\  P6G;gP#эXxSee, e.g., PLDT v. WorldCom, 8 FCC Rcd at 758 n.30.(#Ɵ Resale has been defined as "an activity wherein one entity subscribes to the  x communications services and facilities of another entity and then reoffers communications  XH- x<services and facilities to the public (with or without 'adding value') for profit."(^H, TM {O%-  #X\  P6G;gP#эXxRegulatory Policies Concerning Resale and Shared Use of Common Carrier Services and Facilities, 60  {O-  0FCC 2d 261, 271 (1976) ("Resale and Shared Use Order"), aff'd on reconsideration, 62 FCC 2d 588  {O-(1977), aff'd sub nom. AT&T v. FCC, 572 F.2d 17 (2d Cir.), cert. denied, 439 U.S. 875 (1978).(# The Commission  X1- xjhas held that "resale is a common carrier activity,")1R TM {O4-#X\  P6G;gP#э XxPLDT v. WorldCom, 8 FCC Rcd at 755 (citing Resale and Shared Use Order, 60 FCC 2d at 308). (# and that "any entity reselling international  xNcommon carrier services for the provision of basic communications service must receive  X -authorization pursuant to Section 214 of the Communications Act of 1934."* TM {O-  #X\  P6G;gP#э XxCallBack Order, 9 FCC Rcd at 2290 n.19; accord Regulation of Internal Accounting Rates, 7 FCC Rcd   at 562 ("Because resale is a common carrier activity, a user wishing to resell international private lines   \for the provision of a basic telecommunications service must first obtain certification as an international  {O-  jcommon carrier under Section 214 of the Communications Act." (citation omitted)); Interlink Telecom Co.,   9 FCC Rcd at 710 (authorizing the resale of international public switched services under tariff and pursuant to Section 214).(#  X - ` }x 13.` ` We conclude that in offering the services at issue here, ITL is acting as a common  xcarrier and not as a private carrier as it claims. Common carriers and private carriers have  xjdistinct differences and obligations. A common carrier must "provide a service indifferently to  X- xall potential customers,"P+$`TM {O$-  #X\  P6G;gP#э XxIndependent Data Communications, 10 FCC Rcd 13717, 1372324 (1995) (citations omitted); accord   {Ok%-  Beehive Tel., Inc. v. Bell Operating Cos., 10 FCC Rcd 10562, 10564 (1995), remanded, No. 951479 (D.C.   Cir. Dec. 27, 1996) ("[T]he key feature of common carriage is that the service provider undertakes to  yO&-provide service indifferently to all potential customers." (citations omitted)).(#P and that service must enable customers to "transmit intelligence of their"L+,^(^(JJ"  X- xown design and choosing."%,TM {Oy-  >#X\  P6G;gP#э XxNational Ass'n. of Regulatory Util. Comm'rs. v. FCC, 533 F.2d 601, 609 (D.C. Cir. 1976) ("NARUC II");  {OC-  see also National Ass'n. of Regulatory Util. Comm'rs. v. FCC, 525 F.2d 630, 641 n.58 (D.C. Cir. 1976),  {O -  cert. denied, 425 U.S. 992 (1976) ("NARUC I") ("The fundamental concept of a communications common   carrier is that such a carrier makes a public offering to provide, for hire, facilities by wire or radio whereby   all members of the public who choose to employ such facilities may communicate or transmit intelligence of their own design and choosing").(#% A private carrier, on the other hand, may choose its clients on an  X- xjindividual basis, determining in each particular case whether and on what terms to serve ,-FTM {O-  #X\  P6G;gP#э XxSouthwestern Bell, 19 F.3d at 1481; accord Independent Data Communications, 10 FCC Rcd at 13724.   kIndicative of private carriage are: (1) lack of a legal compulsion to serve the public indiscriminately; (2)   insignificant carrier market power; (3) mediumtolong range service contracts, that ensure a relatively  {O: -  stable clientele, and (4) contracts tailored to the particular needs of the carrier's customers. NorLight, 2 FCC Rcd 132, 134 (1986).(#ƍ and  X- xmay design its system to meet its own communications needs rather than those of its customers..$ TM {O}-  #X\  P6G;gP#эXxFor example, in Norlight, a private carrier had no set prices or terms of service, proposed to tailor each   contract to the specific operational needs of each user, and had the primary objective of preserving the  {O-  integrity of its system to meet its own communications needs, not the needs of its customers. Norlight, 2 FCC Rcd at 13435.(#  xjThus, the terms and conditions of a carrier's particular service and the way it holds itself out to  xthe public are the key determinants as to whether a carrier is a common or private carrier. The  X- x.widespread, general solicitation of customers from the general population, i.e., "indiscriminate  Xx-offering of service on generally applicable terms,"/xTM {O-#X\  P6G;gP#э XxSouthwestern Bell, 19 F.3d at 1481.(#Ɗ constitutes common carriage.  XJ- ` Bx 14.` ` Since June 1993, ITL has provided basic international long distance telephone  xservice by reselling the international switched services of various authorized common carriers  X - xbetween points within the United States and international locations, including the Philippines.0 xTM yOE-#X\  P6G;gP#э XxInitial Brief of ITL at 4; Initial Brief of PLDT, app. tab 9 (Kallback* Brochure).(#ƶ  xITL does not dispute that it has actively marketed its international long distance services by  xmeans of telemarketing and print advertising in various international and United States  X - xpublications, targeting the general public, not a specific clientele with specialized needs .1 TM {O-  #X\  P6G;gP#э XxSee Initial Brief of ITL at 4; Initial Brief of PLDT at 11 (citing ITL Opposition to Motion to Compel at 45) and app. tab 15 for examples of ITL's advertisements.(# In  xaddition, ITL had set generally applicable prices and terms of service; it did not tailor each  X - xcontract to the specific operational needs of its customers.2 bTM {O#-#X\  P6G;gP#эXxSee, e.g., Initial Brief of PLDT, app. tab 7 (Kallback* World Wide Rates). (#Ƶ ITL has stated that its prices, terms  xand conditions of service vary among its customers in the Philippines based on changing market  X{- xconditions.3{TM yO '-#X\  P6G;gP#эXxInitial Brief of ITL, app. tab 10 (Answer to Interrogatory No. 10). (#ƥ However, by varying its rates in accord with changing market conditions (thereby"{3,^(^(JJ"  X- xaffecting the rates charged to all customers), ITL is not tailoring its service terms to the  x-individual needs and requirements of its customers, but to its own fiscal goals. As noted above,  xMthe record indicates that any differences that may exist in customer charges are attributable  xlargely to discounts and fee waivers, rather than any handtailoring of contracts to meet specific  X-customer needs.4\TM {O-  z#X\  P6G;gP#эXxSee Initial Brief of PLDT, app. tab 12 (letter from Mitchell F. Brecher, Esq. (Nov. 27, 1995), explaining   that ITL customers' overall billing rates differ because of monthly fees, installation charges, and electronic  {O-funds transfer discounts). See also para. 5, supra.(#Ƴ  Xv- ` x15.` ` Nothing in the record suggests that ITL used its system for its own  X_- x[communications needs. ITL's method of recruiting its customers,5_TM {O -#X\  P6G;gP#э XxThat is, telemarketing and general, public advertising. See text accompanying note 15, supra.(# its relatively short contract  XH- xiterms,6H~TM {Ow-  #X\  P6G;gP#э XxSee Initial Brief of PLDT, app. tab 14 (Answer to Interrogatory No. 12, stating that ITL has no contracts with a service term of over five years).(# and its indifference to the identity and specific requirements of its customers7HTM {O-  #X\  P6G;gP#э XxSee Initial Brief of PLDT, app. tab 11 (Answer to Interrogatory No. 5, stating that ITL does not know whether its customers are end users).(# all support  x?our conclusion that ITL is acting as a common, not a private, carrier. This conclusion is  xconsistent with our previous rulings that other resellers of international long distance telephone  X - xservices using callback are providing such services on a common carrier basis.O8 2 TM {O-  k#X\  P6G;gP#э XxSee generally CallBack Order, 9 FCC Rcd 2288. Prior to issuing this order, the Commission had already  {O-  granted over 500 Section 214 certifications for resale of international switched services since 1983. Id. at   2290 n.22. Moreover, the underlying carriers from which ITL purchases its services for resale (AT&T and  {OB-  other major international carriers; see Initial Brief of PLDT, app. tab 9 (Kallback* Brochure); Initial Brief   of PLDT app. tab 4 (Kallback* User's Guide at 3)) are regulated as common carriers in their provision of the same international long distance telephone services. (#O Thus, ITL's reselling of such services is common carriage.  X - ` Cx16.` ` Because ITL's provision of international service using callback is common  xcarriage, ITL is subject to regulation as a common carrier. Accordingly, as a common carrier,  xITL is required to secure authorization for the services at issue under Section 214 of the Act, as  Xy- x.well as under the Commission's CallBack Order: "any entity offering a callback service that  Xd- xinvolves reselling international common carrier services must receive [Section 214] authorization  XM- xbefore providing service."9\MTM {O"-  \#X\  P6G;gP#э XxCallBack Order, 9 FCC Rcd at 2290 n.19; see also Regulation of Internal Accounting Rates, 7 FCC Rcd  {Ox#-  at 562 ("[resellers] must first obtain certification as an international common carrier under Section 214.") (emphasis added).(#Ɛ ITL's reasoning for categorizing itself as a private carrier is circular;  xit admits acting in contravention of established law, but attempts to justify its actions by asserting  xthat it was forced by Commission inaction on its Section 214 application to do business without  xproper authorization. There was only one lawful option for ITLto refrain from providing"  9,^(^(JJ"  xcommon carrier long distance service until it had secured proper authorization. Because it chose  xinstead to provide common carrier service without first obtaining Section 214 authorization and  X- xfiling appropriate tariffs, ITL is in violation of Section 214 and the requirements of our CallBack  X-Proceeding.  X-C.xCallBack in the Philippines  Xz-  Xc-x1.` ` Contentions of the Parties  X5- ` x17.` ` PLDT asserts that ITL has been using callback to provide international service  X - xto customers in the Philippines at least since the first quarter of 1993.: TM yO -#X\  P6G;gP#эXxComplaint at 10; Initial Brief of PLDT, app. tab 1 (Answer to Interrogatory No. 1).(#Ƴ PLDT notes that the  x>Commission has prohibited U.S. carriers from using various configurations of callback in a  X - xmanner that is inconsistent with the laws of the countries in which they operate.u; XTM yO-#X\  P6G;gP#эXxComplaint at 23, 11.(#u PLDT claims  X - xKthat the Philippine government has declared callback in the Philippines to be illegal.< TM {Or-#X\  P6G;gP#эXxId. at 5, 89, 1112, Initial Brief of PLDT at 20.(#Ƙ Therefore,  x.PLDT argues, ITL's use of callback to provide service to the Philippines, a country where it is  X -apparently banned, violates the Commission's international callback policy.= zTM yO-#X\  P6G;gP#эXxComplaint at 2, 12, Initial Brief of PLDT at 1718.(#Ɠ  X}- ` x18.` ` ITL responds that the Commission's procedures for determining whether a U.S.  Xf- xcarrier has violated the law of a foreign country, as set forth in the CallBack Proceeding, were  XQ- xnot followed in this complaint.>Q TM {O -  z#X\  P6G;gP#эXxIn the CallBack Reconsideration, the Commission stated that if any foreign government, having decided    international callback using uncompleted call signalling was unlawful, was unable to enforce its domestic    law or regulation against U.S. providers of this offering, it may so notify the United States Government.   Its notification should include specific documentation of its legal restrictions on international callback   /utilizing uncompleted call signalling, evidence of violations by particular carriers, and a description of its   !enforcement measures. Any such foreign government also may provide the Commission's staff with    documentation of its specific statutory or regulatory measure, so that U.S. carriers will be on notice that  {O-  }international callback utilizing uncompleted call signalling is illegal in its territory. CallBack  {OP -Reconsideration, 10 FCC Rcd at 9558.(#Ƙ In addition, ITL claims that PLDT, as a private foreign  xcorporation, "does not have standing to bring an enforcement action against ITL for alleged  X#- x>failure to comply with Philippine law."l?#TM yO#-#X\  P6G;gP#эXxAnswer at 9.(#l Finally, ITL contends that the Commission has no  X -authority to award damages based on a violation of the laws of a foreign country.{@ pTM yO-&-#X\  P6G;gP#эXxReply Brief of ITL at 713.(#{ " @,^(^(JJ "Ԍ X-x2.` ` Discussion  X-  X- ` x19.` ` CallBack Proceeding. In the CallBack Proceeding, the Commission concluded  xthat international services using the uncompleted call signaling configuration of callback would  X- xbe "in the best interests of consumersand eventually of economic growtharound the world"ATM {O-#X\  P6G;gP#эXxCallBack Reconsideration, 10 FCC Rcd at 9541.(#Ɣ  xby promoting competition in international markets and by placing significant downward pressure  Xx- x=on foreign collection rates.rBxZTM {O -#X\  P6G;gP#эXxId. at 9549.(#r The Commission also decided, however, that U.S.based carriers  xmay not offer international service using the uncompleted call signalling configuration of call XJ-back in countries that have specifically prohibited this practice.CJTM {O -#X\  P6G;gP#эXxCallBack Order, 9 FCC Rcd at 2290, 2292; CallBack Reconsideration, 10 FCC Rcd at 954041, 955759.(#  X - ` `x20.` ` Philippine Law. The record before us indicates that the Philippine government  X - xconsidered callback unlawful as early as 1994.D ~TM {O4-  #X\  P6G;gP#эXxIn the CallBack Reconsideration, the Philippines were specifically mentioned twice, first as a government   that submitted information identifying "specific administrative regulations or rulings barring international   callback," and second, as having pointed to "general telecommunications legislation on concession   /arrangements which have the effect of requiring administrative approval or licensing of all activities not vested in the national provider." 10 FCC Rcd at 9554, nn. 63, 64.(#Ɩ On November 22 of that year, the Philippine  x>National Telecommunications Commission (NTC) ordered a company offering international  xservice using callback to Philippine customers to cease and desist from offering such a service  X - xpending a hearing on the merits.E 0 TM {O-  #X\  P6G;gP#эXxComplaint, Exhibit C (Philippine Global Comm., Inc. v. Dialback U.S.A. Phils., Order, ADM Case No. 93-162 (Nov. 22, 1994)).(# On January 16, 1995, the NTC issued a "Memorandum  x[Circular" that directed "[a]ny person, firm, company, association or agency offering, marketing  xor using any or all callback, dialback or any similar services not otherwise authorized by the  X{- xCommission . . . to cease and desist from any of the above or related activity."F{ TM yO-  >#X\  P6G;gP#эXxComplaint, Exhibit E (Memorandum Circular, issued Jan. 16, 1995, by the NTC, Department of Transp. and Communications, Republic of Philippines).(# Since then, the  x.Philippine government has taken action against several carriers that purported to offer service  XM- xusing a configuration of callback in the Philippines.7GMTM {O!-  #X\  P6G;gP#эXxSee Order, File No. E9529, Attachment A (inserting into the record seven orders, one show cause order, and one appellate decision, all from the Philippines) (Com. Car. Bur. Mar. 27, 1996).(#7 Finally, in response to a request from this  xCommission's International Bureau, the NTC provided a list of ten U.S. companies believed to"6 <G,^(^(JJf"  xbe carriers against whom the NTC has issued cease and desist orders, further demonstrating the  X-resolve of the Philippine government to prohibit callback operations in its country.H TM yOb-  #X\  P6G;gP#эXxLetter from Simeon L. Kintanar, Commissioner, NTC, to Diane J. Cornell, Chief, Telecommunications   Division (May 28, 1996) on file with the International Bureau in a public file titled "International Call    Back: Foreign Law;" file contains submissions from foreign governments of information regarding their positions on callback services).(#  X- ` $x21.` ` ITL's Services. The record adduced in the instant complaint supports PLDT's  x<assertion that the government of the Philippines has, by law, regulation, or ruling, prohibited call xback in the Philippines. Based on this same record, we conclude that ITL has been providing  xservices via callback to the Philippines despite the ban on such activity. Because ITL is not  xjproviding its service in a manner that is consistent with the laws of the Philippines, as we have  XH-required, ITL is violating the requirements of our CallBack Proceeding.  X - ` _x22.` ` ITL's defense that the Commission's procedures for determining that a U.S. carrier  xhas violated the law of a foreign country were not followed in this complaint is misplaced.  xAlthough we have provided certain procedures that may be followed by foreign governments  xexperiencing difficulty in enforcing their national laws and regulations against U.S. providers of  x-international callback using uncompleted call signaling, these procedures are not relevant in this  x<proceeding because the complaint was initiated by an individual party, not a foreign government.  x/Moreover, the procedures for foreign governments in no way preclude a party from filing a  xformal complaint pursuant to Section 208 of the Act against a carrier for violation of the Act, the  Xd- xCommission's rules, or any Commission order.1IDdTM {O-  #X\  P6G;gP#эXxCallBack Reconsideration, 10 FCC Rcd at 955758. The Commission's decision to assist those foreign   governments in the enforcement of their own laws and regulations prohibiting callback was a matter of   international comity. The doctrine of comity reflects the broad concept of respect among sovereign nations,    under which one nation recognizes the laws of another. Comity is distinct from the obligations imposed   Lunder international law. The Commission recognized that, with respect to callback, some foreign countries'   laws and regulations conflict with U.S. policy. Accordingly, the Commission invoked comity in its   determination to prohibit U.S. carriers authorized to provide international service using callback from  {O?-providing callback in countries where it is expressly prohibited. Id. at 955558.(#1 PLDT filed its complaint under Section 208,  xand any argument that the complainant failed to follow the procedures established by the  x=Commission to assist foreign governments in enforcing their callback regulations is irrelevant  X-to this proceeding.J TM {O -#X\  P6G;gP#эXxSee discussion of standing, supra, paras. 79.(#ƚ  X- ` x23.` ` ITL's contention that the Commission may not award damages based on a violation  xof the laws of a foreign country misses the point. The violation alleged here is of a U.S. law,  x[albeit one that requires compliance with foreign law. We have the authority to award damages  xwhen any complainant proves that such damage resulted from violation of the Act, Commission  xrules, or established Commission orders. To the extent PLDT demonstrates ITL violated the Act" N J,^(^(JJ"  xor a Commission order, as we have found, and, to the extent PLDT is able to demonstrate  X-damages resulting from these violations, we have the authority to grant such damages.KTM {Ob-#X\  P6G;gP#эXxSee supra notes 2324 and accompanying text.(#ƒ  X- ` Ax24.` ` PLDT has also asked us to assess a forfeiture against ITL. While we may, on our  xown motion, pursuant to Section 503(b) of the Act, 47 U.S.C.  503(b), and Section 1.80 of our  xrules, 47 C.F.R.  1.80, assess a forfeiture against any person found to have willfully or  xrepeatedly violated any provision of the Act or any Commission rule, regulation, or order; we  xMdecline to do so here. Forfeitures are not available as a remedy to a complainant in a formal  XH-complaint proceeding.LHZTM yOS -#X\  P6G;gP#эXx47 U.S.C.  503(b)(1) (Violators "shall be liable to the United States for a forfeiture penalty.").(#  X -D.xOutstanding Motion  X - ` x25.` ` ITL filed a Motion to Dismiss the Formal Complaint, presenting the same  xarguments on the issues of jurisdiction, lack of a cause of action, and standing that it has argued  xKthroughout this proceeding. We have resolved these issues in favor of the complainant with this  xorder. ITL also raised two issues regarding PLDT's entitlement to damages. Damages issues will  xappropriately be discussed during the damages phase of this proceeding. Accordingly, we dismiss  xzthe Motion to Dismiss as moot with respect to liability issues, and premature as to damages issues.  X-} IV. CONCLUSION TP  X- ` x26.` ` For the reasons discussed above, we find that ITL has violated the requirements  X- x.of our CallBack Proceeding and Section 214 of the Act, 47 U.S.C.  214. We therefore direct  xITL to terminate its service using callback to the Philippines. Further, pursuant to Section 1.722  xyof the Commission's rules, PLDT may file a supplemental complaint for damages within 60 days  xafter the release of this order. In this supplemental proceeding, the parties will have a full and fair opportunity to build a record on damages. "P L,^(^(JJ"  X-5 V. ORDERING CLAUSES TP  X- ` `x27.` ` Accordingly, IT IS ORDERED, pursuant to Sections 1, 4(i), 4(j), 208, and 214 of  xthe Act, 47 U.S.C.  151, 154(i), 154(j), 208, 214, that the complaint filed by PLDT IS GRANTED to the extent discussed herein.  Xv- ` x28.` ` IT IS FURTHER ORDERED that ITL SHALL TERMINATE immediately its  x.international service that uses the uncompleted call signaling configuration of callback to the Philippines.  X - ` x29.` ` IT IS FURTHER ORDERED that PLDT, in accordance with the Commission's  X - xrules, see 47 C.F.R.  1.722, MAY FILE a supplemental complaint concerning damages within 60 days after the release date of this order.  X - ` x30.` ` IT IS FURTHER ORDERED that the Motion to Dismiss the Formal Complaint, filed by ITL, IS DISMISSED. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@William F. Caton  X-x` `  hh@Acting Secretary#XZ\  P@QXP#