International service providers likely celebrated when the Federal Communications Commission (“Commission”) eliminated the annual International Traffic and Revenue reporting requirement last year but may have forgotten about the Commission’s plan to issue targeted data requests, when necessary, to obtain information previously available from the annual report. Well the time has come and the Commission now is collecting the basic data that will allow it to tailor its information requests in the future. As required by Commission rule 63.22, international facilities-based service providers must file with the Commission, by November 14, 2018, lists of U.S.-international routes on which the provider has direct termination arrangements with a foreign carrier in the destination country (Route List).
The FCC announced on Friday, August 7, 2015, that the deadline for affected carriers and providers to file their annual international traffic and revenue reports this year — postponed from the usual date of July 31 — must be filed by September 30, 2015. As we noted in a previous blog post, the Federal Communications Commission’s (FCC) new Section 43.62 international reporting requirements became effective on February 11, 2015, but the filing date for annual international traffic and revenue reports under the new framework was postponed this year due to unavailability of the FCC’s online filing system.
The FCC’s new online system is ready for action and will begin accepting submissions on August 17. The FCC is encouraging affected carriers and providers to submit their filings early in the filing window, if possible. We have tested the new system and wish to remind filers that data for most of the international traffic and revenue report components and schedules are entered directly into the online system. Some exceptions apply, specifically Schedule 1, U.S.-Billed and Foreign-Billed Facilities ICS Traffic – By Foreign Point and Schedule 3, International Private Line Service. For these two Schedules, the Commission has developed template spreadsheets. Keep in mind that each filing entity must use the same CORES federal registration number (FRN) when entering the filer’s contact information, FCC authorizations and services checklist.
The international traffic and revenue reporting requirement applies to all “common carriers engaged in providing international telecommunications service” as well as “each person or entity engaged in providing Voice over Internet Protocol (VoIP) service connected to the public switched telephone network.”
The rule establishing the usual July 31 due date has not changed so filers should assume that next year’s report will be due by July 31, 2016.
We suggest filers to become familiar with the date reporting requirements and filing process well in advance of the September 30 deadline to avoid any last minute roadblocks.
Matthew Weinmann, a legal assistant, contributed to this post.
On December 6, 2013, the FCC issued a rare Notice of Apparent Liability for Forfeiture, against Start Wireless Group, Inc. d/b/a Page Plus Cellular (“Page Plus”), for failing to file annual section 43.61 international traffic and revenue reports for the past eight years. Fines for this particular violation are very rare. In fact, we believe this is only the second time the FCC has proposed a forfeiture for failing to file the annual international traffic report.
Page Plus also is noteworthy in two additional respects relevant to this blog. First, the FCC applies the base forfeiture of $3,000 for “failure to file a required report” to this violation. This contrasts with other types of forms, such as the Form 499-A and the annual CPNI certification, where the FCC has set an individual (and much higher) forfeiture for failing to file the required form. Here, the FCC applied the $3,000 base forfeiture to eight violations, adding an upward adjustment of $19,200 to the fine due to duration of the violations.
Second, FCC proposed a fine for eight failures to file the annual certification – dating back to 2003. The Commission apparently relied upon its controversial “continuing violation” theory for missed deadlines, in which the Commission considers a violation to continue until it is cured. In this instance, six of the eight alleged violations relate to forms that Page Plus has never filed. Two relate to late-filed forms, which were filed exactly one year prior to the release of the NAL. (A ninth year’s report was filed slightly more than one year prior to the NAL, and is not part of the FCC’s proposed forfeiture). We say that the FCC “apparently” relied upon the continuing violations theory because the NAL does not cite to or discuss the statute of limitations with respect to the eight violations found. In our opinion, the FCC action is vulnerable on statute of limitations grounds.