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The Legal Line
By Ed Maldonado |
Dear Legal Line:
Does the FCC just want U.S. citizens to have 214 Authority? I have
just been granted my authority after almost 3 months of being in
the application process when their posted guildelines say 4-5 weeks.
The problem to me appears to have been that I am a US resident and
not a US citizen. Let me explain. I have a prepaid business that
sells my own cards, PINs, and prepaid cellular services in the Midwest
through distributors and over the Internet. My carriers told me
this past summer that I need the 214 and 499ID in order to continue
business with them. Since they were major providers and I needed
them, it was no problem and I applied.
I did the application myself through the FCC’s website and
supplied all of the information they asked for on the website. A
week or two after I applied I got an email from a lawyer in the
Department of Justice. The email asked for more information about
the nationalities of other shareholders in the company, if I used
any variations on my name, what I intended to do in the prepaid
business, and etc. So I answered the questions right away. The next
week I got another email asking more information. This time it was
about from whom I would get my services, if there were investors
in my business and etc. I answered them completely as possible.
I checked the FCC website every couple of days to see if the authority
went through or not. There was no movement until almost two months
later. Finally the license was granted.
Since the time I applied, I have asked several people I know in
the industry if they have had the same problem. Surprisingly it
has been the reverse. A very good associate of mine in the prepaid
business applied after me and got his 214 granted before me. He
is a US citizen born here. Not even one Department of Justice lawyer
contacted him in the entire process!! What is going on here? I saw
no mention of the Department of Justice approving the 214 applications
on the FCC website or requirements that information other than what
is in the application be given to that Department. I thought that
this was strictly a FCC authority not a Department of Justice authority.
Do you know about what is going on here and will this be the way
things are done when I file my 499 or other federal reports? Please
let me know.
Midwest Prepaid
Dear MP:
My answer to your first question is no. There are no biases on the
part of the FCC toward foreign nationals for surely such a bias
would predicate a constitutional challenge. What is transpiring,
however, are internal changes within the FCC to coordinate information
related to national security with the Department of Justice and
the Department of Homeland Security. This is largely due to the
Patriot Act and has been going on for some time. For example, this
past January the FCC held a bureau conference where the various
divisions reported on the work of each bureau and the directions
that would be advancing in the next-coming years. The FCC Enforcement
Bureau and the International Bureau both referenced incorporation
of feedback and coordination with the DOJ and Homeland Security
in their presentations.
I agree with you that the DOJ has definitely taken interest in identifying
foreign nationals that participate in international telecommunications
services. I have handled several 214 applications where the DOJ
has requested more details from the applicant who is a foreign national
or foreign national how have ownership of 10% or more in the company.
The process to date has been relatively informal. When requests
are made they are no under specific perjury penalties citing a particular
statute or regulation. While the process does extend the time in
obtaining a 214 for a foreign national, I have not seen rejections
based on the applicant being a foreign national or having 10% or
more ownership by a foreign national.
A critical issue in claiming a bias, or discrimination, by an agency
for government is having been impacted with some form of finality
- in other words, a denial or a rejection. To date I have not seen
this type of action. I have observed that the FCC is definitely
changing the process that is used to approve the 214 Authority,
but I have not personally observed a bias. However, this is just
my experience. There may come an instance or an applicant that something
different may occur. I think it is important to always be mindful
of constitutional pitfalls. Should you experience a denial or rejection
on that basis it is imperative that you speak to an attorney immediately,
particularly one versed on constitutional claims. However, from
what you have written, it appears that there is a question of a
lack of judicial ripeness as to the treatment of foreign nationals
applying for 214 Authority. As far as 499 reporting, nationality
is not the basis for reporting, it is the classification of a contributing
carrier. I have not seen any DOJ involvement in that process to
date.
Good Luck and Success in the Industry.
Do you have questions for Legal Line?
Send them to legalline@prepaid-press.com.
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