With President Obama’s announcement last December that the United States is charting a new course in its relations with Cuba, the Federal Communications Commission (“FCC” or “Commission”) is taking expedited steps to open up the provision of telecommunications services between the United States and Cuba. The Commission seeks comment on a proposal to remove Cuba from its Exclusion List for International Section 214 Authorizations ("Exclusion List") in response to a formal request from the Department of State ("State Department"). Removal of Cuba from the Exclusion List – it is the only country currently on the list – would allow carriers to provide telecommunications services between the United States and Cuba. With comments due December 4th and reply comments due December 9th, the expedited time frame suggests that the Commission may already be in the process of implementing its proposal. This will be of interest to communications providers seeking to offer telecommunications services to Cuba.
The Exclusion List identifies particular facilities and/or countries not included in a global facilities-based Section 214 application. Currently, a separate international Section 214 authorization is required to serve Cuba, which has been on the Exclusion List. The FCC processes Section 214 applications submitted for countries on the Exclusion List on a non-streamlined basis in coordination with the State Department.
The FCC’s solicitation is a direct result of a letter from the State Department, received October 26, 2015, which provided new policy guidance on the licensing of telecommunications services between the United States and Cuba. On November 9, 2015, the Commission’s International Bureau (“Bureau”) released a Public Notice detailing the letter and noting that it would begin the process requested by the State Department.
Removing Cuba from the Exclusion List would free up communications companies with global Section 214 authorizations to provide facilities-based services from the United States to Cuba, even if such companies did not previously seek direct authority to serve Cuba. If the proposal is implemented, such companies need not take additional action or seek additional authority to begin providing service to Cuba.
As a result of the State Department’s October 26 letter to the Commission, the Bureau announced in its November 9 Public Notice that the Commission stopped coordinating with the State Department on those Section 214 applications seeking to provide facilities-based telecommunications services between the US and Cuba, effective immediately. Moreover, the Bureau explained that the Commission will continue to apply the appropriate benchmark settlement rate for telecommunications services between the US and Cuba as well as allow waivers of limited duration.
The Commission has also begun the process of removing the non-discrimination requirements, Section 63.22(f) that apply to the U.S.-Cuba route, which requires the terms and conditions of many operating and other agreements entered into by U.S. common carriers authorized to provide facilities-based switched voice service on the U.S.-Cuba route in correspondence with a Cuban carrier that does not qualify for the presumption that it lacks market power in Cuba to be identical to the equivalent terms and conditions in the operating agreement of another carrier providing the same or similar service between this country and Cuba.
The October 26th letter also notes that applications approved by the FCC may require a license from the Department of Treasury’s Office of Foreign Assets Control and/or the Department of Commerce’s Bureau of Industry and Security.