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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-95-33
     )
 USA LINK, L.P.,)
 D/B/A/ USA GLOBAL LINK,)
      Defendant.)


                  MEMORANDUM OPINION AND ORDER

     Adopted:  August 8, 1997;  Released:  August 13, 1997


By the Chief, Common Carrier Bureau:

                        I.  INTRODUCTION
                                
      1.The Philippine Long Distance Telephone Company (PLDT) filed the above-captioned
complaint against USA Link, L.P., d/b/a/ USA Global Link (Global Link), alleging, inter alia, that Global
Link has violated Section 214 of the Communications Act of 1934, as amended (Act), and requirements set
forth in the Commission's Call-Back Proceeding.  Specifically, PLDT alleges that Global Link used "call-
back" to offer international long distance service to customers in the Philippines where such service is
illegal, and thus violated Section 214 of the Act and the Commission's orders in the Call-Back Proceeding. 
PLDT asks the Commission to direct Global Link to terminate immediately its international service to the
Philippines that uses call-back, to assess a forfeiture against Global Link for its unlawful activity, and to
award damages to PLDT as may be determined to be appropriate.  For the reasons discussed below, we grant
PLDT's complaint to the extent described in this Order.


                        II.  BACKGROUND

      2.The international long distance service at issue in this proceeding utilizes the "uncompleted
call signaling" configuration of "call-back."  Uncompleted call signaling, also known as "code calling," is
an activity in which a reseller assigns its foreign customer a specific telephone number in the United States
and instructs the customer to call that number and hang up after a specified number of rings whenever the
customer wants to place a call.  The reseller's switch then places an outbound call to the foreign customer
and provides the customer a U.S. dial tone that can be used to complete calls to the United States or
elsewhere.  The resulting call is placed at U.S.-tariffed rates, which are generally lower than those of the
originating country.  

      3.In October 1994, Global Link was granted authority under Section 214 of the Act to resell
services of other carriers to provide switched voice communications internationally.  Although reseller
authorization is generally global, Global Link's Section 214 authorization explicitly requires it to comply
with the requirements of the Commission's Call-Back Proceeding, stating particularly that
telecommunications service using call-back may not be offered to customers in countries where the
government has prohibited it.  The Call-Back Proceeding requires that U.S. carriers may not use the
uncompleted call signaling method of call-back to provide telecommunications service to countries which
expressly have declared that call-back is illegal.

     
                       III.  DISCUSSION  

   A.Standing

      1. Contentions of the Parties

      4.As a threshold matter, Global Link challenges PLDT's standing to bring its complaint to the
Commission.  Specifically, Global Link contends that a Section 208 complaint must show that the defendant
carrier has acted "in contravention of the provisions of the Communications Act."  Global Link argues that
under the Act, call-back is generally presumed legal and, therefore, PLDT has no valid claim.  Global Link
further contends that the orders in the Call-Back Proceeding speak only of actions that foreign governments
may take regarding call-back and that PLDT, as a "private party," may not bring a complaint to the
Commission under the terms of the Call-Back Proceeding.  Lastly, Global Link contends that Section 208
only permits an injured complainant to file a complaint, and that because PLDT has not demonstrated any
injury as a result of Global Link's actions, PLDT's complaint should be rejected.  

      5.PLDT responds that it does have standing and refers the Commission to Section 208 of the
Act, which states that any "person" may complain to the Commission about violations of the Act by a
common carrier.

      2.Discussion

      6.Section 208 of the Act states, in part, that:

     Any person, any body politic or municipal organization, or State commission,
     complaining of anything done or omitted to be done by any common carrier subject to this
     Act, in contravention of the provisions thereof, may apply to said Commission by petition
     . . . .  No complaint shall at any time be dismissed because of the absence of direct damage
     to the complainant.

      7.As used in Section 208, the term "person" includes an individual, partnership, association,
joint-stock company, trust or corporation, and is broadly interpreted to include "any member of the public"
who would file a complaint against a common carrier.  PLDT is a corporation and as such, meets the
Section 3(32) definition of "person."  In addition, nothing in the plain language of Section 208 excludes
foreign "persons" from bringing a complaint to the Commission.  Thus, as a "person," PLDT has standing
to complain to the Commission under Section 208.  

      8.The subject matter of a Section 208 complaint--"anything done or omitted to be done by any
common carrier"--may include any alleged violation of  "a provision of the Act, a Commission order, or a
Commission Rule or Regulation."  PLDT's complaint asserts that Global Link, as a common carrier, acted
or failed to act in violation of the Act.  Therefore, the subject matter of PLDT's complaint lies within the
bounds of Section 208.

      9.Common carriers are liable for damages caused by their unlawful acts, and a complainant
injured by such acts may complain or seek damages before the Commission or any United States district
court.  Damages are provided for in such a suit, and may be recovered to the full amount sustained by the
complainant.  Contrary to Global Link's assertion, however, Section 208 specifically states that "[n]o
complaint shall at any time be dismissed because of the absence of direct damage to the complainant."  
      10.Finally, Global Link's assertion that the Call-Back Proceeding does not provide a "private
right of action" for PLDT in this instance is misplaced.  Section 208 has its own standing requirement, which,
as discussed above, explicitly confers standing upon "any person" to complain of alleged wrongdoing by a
common carrier, without regard to injury suffered or direct interest in the matter.  Thus, PLDT has met the
standing and subject matter requirements of Section 208.

   B.Common Carriage

      11.We must next determine whether Global Link is acting as a common carrier and is therefore
subject to the requirements of Section 214 of the Act and our relevant orders.  Although Global Link does
not deny that the international telecommunications service at issue is being provided on a common carrier
basis, it claims that it is not the common carrier offering this service.  Rather, Global Link claims that it is
the marketing agent of two other carriers that provide the service.  PLDT asserts, however, that it is Global
Link that provides this service using call-back to customers in the Philippines, and argues that such action
violates Section 214 of the Act and the requirements of the Commission's Call-Back Proceeding.  

      1.Contentions of the Parties

      12.PLDT's challenge of Global Link's provision of international service using call-back in the
Philippines depends on whether Global Link is subject to regulation as a common carrier.  PLDT argues that
Global Link is a common carrier acting in violation of both the Act and the Call-Back Proceeding, and
contends that the evidence adduced in this proceeding demonstrates that Global Link holds itself out as the
provider of telecommunications services using call-back to the Philippines.  PLDT argues that such action
in the provision of this service to Philippine customers is that of a common carrier.  To support its
allegations, PLDT proffers documents to show that Global Link has the "absolute right" to determine the
rates, terms, and conditions of the service being offered to the Philippines, and, further, that Global Link has
its name on the customers' bills, receives payments directly, is ultimately liable for nonpayment of
customers' bills, and is the entity to whom the customer looks for customer service.  These factors,
according to PLDT, are all indicia of common carriage.  In addition, PLDT argues that Global Link's
actions as a carrier go beyond the scope of its Section 214 authority to provide international service.

      13.Global Link contends that it "is not acting as a common carrier in any capacity in the
Philippines," nor is it "performing any call-back services in the Philippines."  Instead, Global Link claims
that it serves as "a commissioned, independent representative of two service bureaus" that act as common
carriers to provide the service at issue.  Moreover, Global Link asserts that, for the purposes of this
proceeding, its Section 214 authorization is irrelevant.  Instead, Global Link claims that it is merely a
marketing agent for the two service bureaus, Telegroup, Inc. (Telegroup) and MTC Telemanagement
Corporation (MTC), and that these two service bureaus actually provide the service using call-back to the
Philippines.  According to Global Link, Telegroup and MTC actually handle the switching of the calls, do
the billing, and determine the prices, terms, and conditions of service.  Global Link claims that it has no
corporate affiliation with either Telegroup or MTC, which, as the underlying carriers, resell the services of
AT&T, MCI, and Sprint.   While Global Link claims that it has no direct presence in the Philippines and
does not advertise or solicit customers there, it admits that it has subcontracting agents in the Philippines
who, using Global Link's name and logo, advertise and contract with customers for the service.  Global
Link argues that despite the use of its name and logo by its subcontractors who actually contract with
customers for the service, it cannot be considered the common carrier for this service because it does not
handle the switching or billing.

      14.PLDT argues that Global Link's defense that it is not providing the switching functions for
service to the Philippines is irrelevant.  PLDT claims that the documents it has submitted regarding the
provision of service to the Philippines that bear Global Link's name demonstrate that Global Link is holding
itself out as the provider of those services.  PLDT further argues that Global Link offers service to the
Philippines by reselling international service from U.S. carriers, but has exceeded its Section 214
authorization to act as a reseller in this instance.

      2.Discussion 

      15.The Act defines a common carrier as "any person engaged as a common carrier for hire." 
 The Commission's regulations expand on the Act's definition, stating that a common carrier is "any person
engaged in rendering communication service for hire to the public."  In addition, in NARUC II, the court
stated that one may be a common carrier "if he holds himself out to serve indifferently all potential users." 


      16.Common carriers may offer their services as facilities-based carriers, or as resellers.  Resale
has been defined as "an activity wherein one entity subscribes to the communications services and facilities
of another entity and then reoffers communications services and facilities to the public (with or without
 adding value ) for profit."  The Commission has held that "resale is a common carrier activity," and that
"any entity reselling international common carrier services for the provision of basic communications service
must receive authorization pursuant to Section 214 of the Communications Act of 1934."  

      17.Because Global Link does not deny that the international telecommunications service at
issue before us is being provided on a common carrier basis, the question before us is whether Global Link
is the entity that is holding itself out to provide such service to all indifferently.  The record adduced in this
proceeding supports PLDT's contention that Global Link holds itself out as the common carrier providing
international service to the Philippines using call-back.  

      18.Global Link has agreements with Philippine sales representatives to enlist customers for its
services.  Two such services offered by Global Link are named "Global Link Gold CallBack" and "Global
Access CallBack," both of which use a form of call-back technology.  Global Link has presented itself to
its Philippine agents, as well as to the end user, as the provider of long distance service using call-back to
the Philippines.  In addition, Global Link's Philippine representatives advertise themselves as "authorized
agent[s] of USA Global Link" and use the Global Link name and logo throughout their advertising and
promotional material.  Although Global Link claims that it neither created nor even saw this material prior
to this proceeding, its agreements with its local Philippine sales agents reserve to Global Link control over
how its name and logo may be used.  In these agreements, Global Link represents that it "offers to
customers world-wide services requiring access to U.S. telecommunications interconnections."  Global
Link's training manuals, distributed to its representatives, state that Global Link's operations are registered
with the FCC and that it uses the "backbone networks of major carriers already tariffed by the FCC."

      19.Global Link's agreements with its underlying carriers authorize Global Link to sell their
service under Global Link's own name or a private label, without requiring Global Link to identify the
underlying carrier to its customers.  Nowhere in Global Link's agreement with its Philippine representatives
is either of its two alleged underlying carriers/service bureaus mentioned.  In addition, the agreements
require Global Link's representatives to abide by all Global Link policies.  Moreover, Global Link sets the
rates for such services, Global Link's name appears on the invoices sent to its Philippine customers, and those
customers are instructed to make payment directly to Global Link.

      20.Global Link claims to be merely a sales agent of another carrier's services.  The Commission
has found however, that sales agents, as opposed to reseller carriers, do not set the terms and prices for the
services it offers, nor do they bill the customers for network usage.  The record before us shows that Global
Link has the right to do both.

      21.Global Link's customers are purchasing an international service that uses call-back that has
been marketed under Global Link's name by sales agents of Global Link that use Global Link's name.  Global
Link establishes the rates, terms, and conditions under which the service is offered.  Global Link's name
appears on the bills, and fees are paid to Global Link at Global Link's U.S. address.  From the standpoint of
the Philippine end-user customers, they are signing up with Global Link's Philippine agents for Global Link
services that Global Link acquires from major U.S. carriers.  Having held itself out so prominently to its
Philippine customers and agents as the provider of international services using call-back, and having done
nothing to rectify this appearance, Global Link cannot now invoke the status of marketing-agent as a shield
against our application of the Act and Commission rules.
 
      22.In summary, PLDT is correct in its contention that the provision of international service
using call-back is common carriage and has demonstrated that Global Link acts as a carrier providing an
international telecommunications service to the Philippines through resale using call-back.


      C.Call-Back in the Philippines

      1.Contentions of the Parties

      23.PLDT asserts that Global Link has been using call-back to provide international service to
customers in the Philippines.  PLDT notes that the Commission has prohibited U.S. carriers from providing
call-back in a manner that is inconsistent with the laws of the countries in which they operate.  PLDT
claims that the Philippine government expressly declared call-back in the Philippines to be illegal. 
Therefore, PLDT argues, Global Link's use of call-back to provide service to the Philippines, a country
where it is banned, violates the Commission's international call-back policy.

      24.Global Link responds that, absent a clear and explicit showing by a foreign government that
its law has been violated, the Commission should presume call-back to be legal.  Global Link argues that
the Government of the Philippines has failed to make such a showing and, further, that the Commission
should not construe foreign law.  Global Link also asserts that PLDT is not entitled to deference under the
principles of comity, upon which Global Link argues that the Call-Back Proceeding is based, because PLDT,
as a private foreign corporation, lacks the "authority to speak on behalf of the Philippine government."

      2.Discussion

      25.Call-Back Proceeding.  In the Call-Back Proceeding, the Commission concluded that
international services using the uncompleted call signaling configuration of call-back would be "in the best
interests of consumers--and eventually of economic growth--around the world" by promoting competition
in international markets and by placing significant downward pressure on foreign collection rates. 
Notwithstanding this general endorsement of call-back, however, the Commission expressly prohibited U.S.-
based carriers from offering international service using uncompleted call signaling (call-back) in countries
that have specifically prohibited this practice.  

      26.Philippine Law.  The record before us indicates that the Philippine government considered
call-back unlawful as early as 1994.  On November 22 of that year, the Philippine National
Telecommunications Commission (NTC) ordered a company offering international service using call-back
to Philippine customers to cease and desist from offering such a service pending a hearing on the merits. 
On January 16, 1995, the NTC issued a "Memorandum Circular" that directed "[a]ny person, firm, company,
association or agency offering, marketing or using any or all call-back, dial-back or any similar services not
otherwise authorized by the Commission . . . to cease and desist from any of the above or related activity." 
Since then, the Philippine government has taken action against several carriers that purported to offer service
in the Philippines using a configuration of call-back.   Finally, in response to a request from this
Commission's International Bureau, the NTC provided a list of ten U.S. companies believed to be carriers
against whom the NTC has issued cease and desist orders, further demonstrating the resolve of the Philippine
government to prohibit call-back operations in its country.

      27.Global Link's Services.  The record adduced in the instant complaint supports PLDT's
assertion that the government of the Philippines has, by law, regulation, or ruling, prohibited call-back in the
Philippines.  In a case filed by PLDT against a different defendant, the Commission concluded that "the
government of the Philippines has, by law, regulation, or ruling, prohibited call-back in the Philippines." 
Accordingly, the Commission found that the defendant violated the Call-Back Proceeding by providing
international common carrier telephone service to the Philippines using call-back without first obtaining
authorization under Section 214.  The Commission also found that the defendant violated the requirements
of its Call-Back Proceeding by providing service using call-back to a country that prohibits such service. 
Based on the record in this proceeding, we conclude that Global Link is a provider of international services
via call-back to the Philippines, despite that country's ban on such activity.  Because Global Link is not
providing its service in a manner that is consistent with the laws of the Philippines, as required by the
Commission, Global Link is violating the requirements of the Commission's Call-Back Proceeding.

      28.Global Link's defense that the government of the Philippines failed to demonstrate that
Global Link has violated Philippine law is misplaced.  Although the Commission has provided certain
procedures that may be followed by foreign governments experiencing difficulty in enforcing their national
laws and regulations against U.S. providers of international service using the uncompleted call signaling
configuration of call-back, these procedures in no way preclude a party from filing a formal complaint
pursuant to Section 208 of the Act against a carrier for violation of the Act, the Commission's rules, or any
Commission order.  PLDT filed its complaint under Section 208, and any argument that the complainant
failed to follow the procedures established by the Commission to assist foreign governments in enforcing
their call-back regulations is irrelevant to this proceeding.  

      29.Global Link's contentions that the Commission should not construe the laws of a foreign
country and that PLDT is not entitled to comity are also misplaced.  We are not interpreting foreign law. 
Instead, we are accepting at face value what the Philippine government tells us about call-back in its country. 
Neither is comity, which requires us to assist a foreign government in its efforts, the issue here.  It is not
the Philippine government that initiated this proceeding.  

      30.The issue here is a violation of U.S. law, albeit one that requires international carriers to
comply with foreign law.  PLDT has provided sufficient evidence that the government of the Philippines has
banned call-back, and Global Link has failed to adequately rebut that showing.  The Commission has the
authority to consider allegations that a carrier has violated the Act, Commission rules, or established
Commission orders.  To the extent PLDT alleges that a violation of the Commission's Call-Back Proceeding
and Section 214 of the Act has occurred, we have the authority to consider such a complaint.

      31.Section 214 Authorization.  On October 19, 1994, the Commission granted Global Link's
application for Section 214 authority to resell international switched service between the United States and
any of the 254 countries listed in its application, one of which is the Philippines.  The Commission
conditioned its grant of authority by requiring any applicant intending to provide international service using
the uncompleted call signaling format of call-back to comply with the requirements of the Commission's
Call-Back Proceeding.  Having determined that Global Link is acting as a common carrier, we further
conclude that its provision of international service to the Philippines through the use of call-back, where such
action is prohibited, violates the conditions of Global Link's Section 214 Certificate.

      32.PLDT has also asked us to assess a forfeiture against Global Link.  While we may, on our
own motion, pursuant to Section 503(b) of the Act, 47 U.S.C.  503(b), and Section 1.80 of our rules, 47
C.F.R.  1.80, assess a forfeiture against any person found to have willfully or repeatedly violated any
provision of the Act or any Commission rule, regulation, or order, we decline to do so here.  Forfeitures are
not available as a remedy to a complainant in a formal complaint proceeding.


                        IV.  CONCLUSION

      33.For the reasons discussed above, we find that Global Link has violated the requirements of
the Commission's Call-Back Proceeding and Section 214 of the Act, and, accordingly, we grant PLDT's
complaint.  We therefore direct ITL to terminate its service using the uncompleted call signaling
configuration of call-back to the Philippines.  Further, pursuant to Section 1.722 of the Commission's rules,
PLDT may file a supplemental complaint for damages within 60 days after the release of this order.  In this
supplemental proceeding, the parties will have a full and fair opportunity to build a record on damages.  


                      V.  ORDERING CLAUSES

      34.Accordingly, IT IS ORDERED, pursuant to Sections 1, 4(i), 4(j), 208, and 214 of the Act,
47 U.S.C.  151, 154(i), 154(j), 208, 214, and Sections 0.91 and 0.291 of the Commission's rules, 47 C.F.R.
 0.91, 0.291, that the complaint filed by PLDT IS GRANTED to the extent discussed herein.

      35.IT IS FURTHER ORDERED that USA Global Link SHALL TERMINATE immediately
its international service that uses the uncompleted call signaling configuration of call-back to the Philippines.

      36.IT IS FURTHER ORDERED that PLDT, in accordance with the Commission's rules, see
47 C.F.R.  1.722, MAY FILE a supplemental complaint concerning damages within 60 days after the
release date of this order.


     FEDERAL COMMUNICATIONS COMMISSION




     Mary Beth Richards
     Deputy Chief, Common Carrier Bureau