Addendum, from International Competitive Carrier to the WTO : A Survey of the Fcc's International Telecommunications Policy Initiatives 1985-1998

In its December 1998 issue, the Federal Communications Law Journal published a law review article surveying the Federal Communication Commission's (FCC or Commission) international policy initiatives between 1985 and 1998. As that article explained, one of the centerpieces of the FCC's international policies was its Benchmarks Order, in which the FCC unilaterally imposed maximum benchmarks on the amount U.S. carriers may pay their foreign correspondents to hand off U.S.-originated International Message Telecommunications Service (IMTS) traffic. (See Lawrence J. Spiwak, From International Competitive Carrier to the WTO: A Survey of the FCC's International Telecommunications Policy Initiatives 1985-1998, 51 Fed. Comm. L.J. 111 (1998).) As that law review article further argued, the FCC's actions raised serious questions from both a legal and overall policy perspective. Less than one month after the Federal Communications Law Journal published that article, however, the D.C. Circuit Court of Appeals in Cable & Wireless v. FCC (C&W) - to the unbridled giddiness of the FCC and to the dismay of various parties representing over 100 foreign governments, regulators, and telecommunications companies - upheld the FCC's Benchmarks Order in its "entirety." This addendum reviews the D.C. Circuit's reasoning in C&W and concludes that the D.C. Circuit has not only placed major areas of previously settled case law in flux, but - even assuming arguendo the court ruled correctly - also has approved nakedly the FCC's role of "cartel manager" and destroyed what little chance there was to avoid an all-out international telecommunications trade war