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The U.S. Pacific Territories and Federal Telecommunications Policies: a Blueprint for the Future

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The U.S. Pacific Territories and Federal Telecommunications Policies: a Blueprint for the Future THE U.S. PACIFIC TERRITORIES AND FEDERAL TELECOMMUNICATIONS POLICIES: A BLUEPRINT FOR THE FUTURE Thomas K. Crowe* Due to remote location, limited population and I. HISTORICAL BACKGROUND historically scarce representation before federal pol- icy-makers in Washington, D.C., the U.S. Pacific A. Governmental Status of U.S. Pacific Territories territories have become the "lost children" of the United States in terms of telecommunications policy. Although there are three U.S. territories located in Not only do the territories pose thorny legal the Pacific that fly the United States flag, the Com- problems for the Federal Communications Commis- monwealth of the Northern Mariana Islands sion ("FCC"), but the FCC has been slow and hesi- ("CNMI"), the Territory of Guam, and the Terri- tant in moving to address Pacific territory issues. tory of American Samoa are not part of the fifty The problem is now so severe that the Pacific terri- states. CNMI has held U.S. commonwealth status tories risk being left off the emerging "Information since 1986.' By contrast, Guam is an "organized" Superhighway." Ironically, action by the FCC and territory since its civil government was established other federal policy-makers is precisely what is under the Guam Organic Act of 1950.2 American needed with respect to the territories. Federal inter- Samoa is an unorganized territory; it has a legisla- vention establishing rate integration, mandating ture and an elected governor, but the operation of equal access, and resolving numbering issues would the civil government is not the result of the enact- 8 promote more accessible, lower cost communications ment of an organic act. between the territories and the continental United The primary difference between a commonwealth States. and a territory is that the latter arguably entails a Part I of this paper discusses the inconsistencies greater level of autonomy and self-government over that exist in applying FCC policy to the U.S. Pacific internal matters." Indeed, Guam is currently seeking 5 territories. Part II discusses ways in which federal commonwealth status. The territorial status of the telecommunications policies may aid in integrating Pacific islands is not likely to become an issue with the U.S. territories into the U.S. social and economic respect to the application of federal telecommunica- infrastructure. Such solutions include applying three tion policies. primary federal policies: toll rate integration, North American Numbering Plan integration and equal B. Inconsistencies in Applying FCC Telecommuni- access. cations Policies to U.S. Pacific Islands The Communications Act of 1934 ("Communica- tions Act") was enacted "[f]or the purpose of regu- lating interstate and foreign commerce in communi- * Thomas K. Crowe is an attorney in private practice in Interior with Respect to the Northern Mariana Islands, Nov. 3, Washington, D.C. who currently serves as Regulatory Counsel 1986, 51 C.F.R. 40401 (1986), reprinted in, 48 U.S.C. § 1681. to the Society of Telecommunications Consultants. The author 2 48 U.S.C. §§ 1421-1428e (1988). gratefully acknowledges the invaluable assistance with respect to 8 See Jon M. Van Dyke, The Evolving Legal Relationships technical issues of Robert F. Kelley, Jr., formerly of Manage- ment Communications Services. The content of this article was Between the United States and Its Affiliated U.S.-Flag Islands, 14 U. REV. presented at the Pacific Telecommunications Conference held in HAW. L. 445, 450 (1992). Hawaii on January 22-26, 1995. 4 Id. at 451. 1 Exec. Order No. 12572, Authority of the Secretary of the 6 Id. COMMLAW CONSPECTUS [Vol. 3 cation by wire and radio so as to make available, so Connecticut and have an aggregate population of ap- far as possible, to all the people of the United States proximately 223,000 people. Moreover, the territo- a rapid, efficient, nation-wide, and world-wide wire ries are located approximately 5,500 miles from the and radio communication service . ."I Section 153 continental U.S., closer to Japan than Hawaii. In of the Act defines the United States as "the several addition, the territories have limited representation States and Territories, the District of Columbia, and in Washington, D.C., where federal policy is cre- the possessions of the United States, but does not in- ated. As discussed below, unless the U.S. Pacific ter- clude the Canal Zone."7 Thus, it was clearly Con- ritories are to be excluded from the national telecom- gress' intent that all U.S. territories (even those not munications and information infrastructure, the yet in existence in 1934 when the Communications FCC and other federal policy-makers must take a Act was enacted) be subject to the Communications greater interest in the territories and affirmatively Act and federal telecommunications policy. However, consider them in policy-making actions. the FCC has been slow in exercising jurisdiction over the territories, as well as in applying federal II. A BLUEPRINT FOR THE FUTURE policies. Notwithstanding its statutory authority over the On September 15, 1994, the National Telecom- territories, the FCC has never quite known how to munications and Information Administration treat the Pacific territories from a regulatory stand- ("NTIA") released an "Agenda for Action" for the point. There is little question that the FCC has been National Information Infrastructure." The Agenda extremely reluctant to apply mainland U.S. telecom- for Action describes the role of government in pro- munications policies to the U.S. Pacific territories. moting the development of the telecommunications Most FCC policy actions simply fail to address, in and information infrastructure by the private sector, one way or another, whether general policies and in ensuring that all Americans have access to adopted will apply to the Pacific territories.' In fact, this infrastructure." The infrastructure is predicted the FCC has rarely exercised its authority to apply to connect the nation's businesses, residences, schools, federal telecommunications policies to CNMI or health care facilities and public information provid- American Samoa. It was not until 1992 that the ers through advanced, interactive, high-speed net- FCC expressly recognized the applicability of the works." One of the overarching themes of the Communications Act to the Territory of Guam.' Agenda for Action is that all Americans without ex- However, other FCC actions involving the Pacific ception have access to the emerging telecommunica- territories have led to confusion. For example, the tions and information infrastructure. Indeed, the FCC has expressly ruled that Guam is a domestic Agenda for Action is peppered with references to this point, 10 however telecommunications traffic originat- concept. For example, the Agenda for Action states: ing or terminating in Guam is processed through the International Division of the FCC and is tariffed as As a matter of fundamental fairness, this nation cannot accept a division of our people among telecommunications international traffic. Although Guam is deemed a or information "haves" and "have-nots." The Administra- domestic point, the FCC regulates virtually all tele- tion is committed to developing a broad, modern concept communications facilities between Guam and the of Universal Service-one that would emphasize giving all contiguous United States as international points. Americans who desire it easy, affordable access to ad- vanced communications and information services, regard- The FCC's historical disinterest in the Pacific ter- less of income, disability, or location." ritories can be attributed to many factors. The most obvious is that CNMI, Guam and American Samoa The Agenda for Action also states: "because infor- together are approximately the size of the state of mation means empowerment, the government has a - 47 U.S.C. § 151 (1988)(emphasis added). eign common carrier communications, originating or terminating Id. at § 153 (g). on Guam, to this Commission (footnote omitted)." Id. para s See, e.g., infra note 15. 1250. See In re IT&E Overseas, Inc. and PCI Communications, '0 See In re PCI Communications, Inc., 7 FCC Rcd. 63 Inc., Memorandum Opinion and Order, 7 FCC Rcd. 4023, (1992). para. 4-5 (1992). According to the FCC, "it is clear that the 11 See 58 Fed. Reg. 49,025 (1993). Communications Act was intended by Congress to apply, and applies, in every respect, to all radio and wire communications 12 Id. originating or terminating on the Territory of Guam, and that is Id. Congress gave exclusive jurisdiction over all interstate and for- 1I Id. at 49028 (emphasis added). 19951 U.S. PACIFIC TERRITORIES duty to ensure that all Americans have access to the In [the] case of message telephone service (MTS), any resources of the Information Age." 1 such proposal shall give maximum effect to the elimina- tion of overall distance as a major cost factor and should With this overriding universal service goal clearly be designed, in specific time phases if necessary, to inte- articulated, federal policy-makers must become more grate these three United States points into the uniform proactive in applying established procompetitive pol- mileage rate pattern that now obtains for the contiguous icies to the Pacific territories. The communications states, with all that such approach implies in terms of na- policies which will extend the information infra- tionwide cost averaging and equalization for interstate rate-making purposes.18 structure to the Pacific territories are already in place; however, they simply have never been applied to the territories. The balance of this paper identifies Since the FCC mandated rate integration over two three primary federal policies which, if applied to decades ago, rates for Alaska, Hawaii, Puerto Rico the Pacific territories, would significantly integrate and the U.S. Virgin Islands have been included them into the U.S. economic and communications within nationwide rate averaging. Consequently, in- infrastructure. terstate MTS rates for off-shore consumers at these locations have been greatly reduced.
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