SALES OF MOBILE PHONES TO CUBA. October 2010

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1 SALES OF MOBILE PHONES TO CUBA October 2010

2 Page 2 I. Introduction The United States has in place a strict embargo on trade with and economic assistance to Cuba. While the embargo is broad in its reach, there is a narrow range of products that can be traded with Cuba under the embargo. Telecommunications is one of few areas in which the Congress has granted the Executive Branch the authority to authorize certain types of trade with Cuba. Some trade in telecommunications has already been authorized by the Executive Branch. In addition there are other, more effective steps that can legally be taken to further the stated policy of the current administration to increase communication between Americans and Cubans. The text of existing regulations is certainly broad enough to encompass the sale of mobile phones, though the U.S. government has thus far not interpreted the regulations to allow licenses for the sale of mobile phones and it has not proposed new regulations in that regard. This paper describes the actions that the U.S. government could legally take notwithstanding the embargo to lift the prohibitions to sell mobile phones to Cuba. II. Executive Summary of Issues and Analysis Issue #1: Is there a legal basis under existing law for authorizing the sale of mobile phones to Cuba? Short Answer: Yes. Regulatory authority exists under Cuban Democracy Act of 1992 and the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 to authorize the export (sale or donation) of consumer communication devices, including mobile phones and, as such, the sale of mobile phones should be subject to a general license by the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC). Summary of Analysis: Congressional authority exists which authorizes the President of the United States to grant licenses to export telecommunications facilities to provide efficient and adequate telecommunications services between the United States and Cuba and indicates that telecommunications facilities are authorized in such quantity and of such quality as may be necessary to provide efficient and adequate telecommunications services between the United States and Cuba. The only limitation relative to telecommunications relates to investment in Cuban domestic telecommunication network. 1 1 Section 1705 (e) of the CDA - 22 U.S.C (e). * This report was prepared and written by Rolando Anillo-Badia, Esq. of Fowler Rodriguez Valdes-Fauli, in collaboration with Americas Society/Council of the Americas (AS/COA). For questions or comments about its contents, please contact Matthew Aho at maho@as-coa.org.

3 Page 3 A mobile phone falls within the scope of a telecommunications facility and a mobile phone is not considered to be a telecommunications network under any nationally or internationally recognized industry terminology. On the contrary, all internationally recognized authorities on telecommunication terms expressly define a mobile phone as a telecommunications facility. Furthermore, given the statutory prohibition against the export to Cuba even by donation of equipment that contributes to Cuba s network, the issuance of a license exception to donate mobile phones to Cuba s eligible end-users indicates that the U.S. government itself also does not adhere to the view that mobile phones are considered to a network. Although a mobile phone uses or connects to the network it is not a network as that term is defined in the law. Issue #2: As required by the Cuban Democracy Act, are mobile phones necessary to provide efficient and adequate telecommunications services with the Cuban people? Short answer: Yes. Summary of Analysis: Mobile phones and related software applications are new tools in the global effort to improve communication and to capture, access, and share information. Mobile phones are not only necessary items to provide telecommunications but are in fact essential because without them communication between a person in the U.S. and person in Cuba cannot be completed. A person must have a mobile phone in order to be able to speak to another person through a mobile telecommunications network. Mobile phones are also often the only technology by which people in low- and middle-income countries have access to information. III. Legal Background Supporting Executive Summary A. The Cuban Embargo and the Telecommunications Facilities Exception The United States has in place a comprehensive embargo against trade and other economic transactions involving Cuba. The embargo is founded on four major statutes, The Trading With the Enemy Act of 1917 ( the TWEA ) 2, The Foreign Assistance Act of 1961 (the FAA ) 3, The Cuban Democracy Act of 1992 (the CDA ) and the Libertad Act of President John F. Kennedy, acting under the authority of section 620(a) of the FAA, as amended, proclaimed an embargo upon trade between the United States and Cuba in accordance with the following paragraphs: 2 The TWEA granted the President broad authority to impose embargoes on foreign countries during times of war and was amended in 1933 to also grant this authority during times of national emergency. The International Emergency Economic Powers Act of 1977 (IEEPA) amended section 5(b) of TWEA, again limiting the President s authority to times of war but allowing the President s continued exercise of his national emergency authority with respect to the ongoing Cuba embargo. 3 The FAA contains provisions barring any assistance to Cuba and authorizing the President to establish and maintain an economic embargo on Cuba. Section 620(a) prohibits any U.S. foreign assistance to the present government of Cuba and authorizes the President to establish and maintain a total embargo on all trade between the United States and Cuba as a means of carrying out the assistance prohibition.

4 Page 4 1) The U.S. President prohibits the importation into the United States of all goods of Cuba origin and all goods imported from or through Cuba and authorizes and directs the Secretary of the Treasury to carry out such prohibition, to make such exceptions thereto, by license or otherwise, as determines to be consistent with the effective operation of the embargo proclaimed and to promulgate such rules and regulations as may be necessary to perform such functions. 2) The U.S. President directs the Secretary of Commerce, under the provisions of the Export Control Act of 1949, as amended (50 U.S.C. App ), to continue to carry out the prohibition of all exports from the United States to Cuba, and authorizes him, under that Act, to continue, make, modify, or revoke exceptions from such prohibition. 4 The CDA was intended to support democracy in Cuba by modifying aspects of the restrictions on trade between the United States and Cuba and encouraging other countries to limit their trade with Cuba as well as their extension of credit and assistance to Cuba. Additionally, notwithstanding the embargo, the CDA, among other things, authorized telecommunication services between the United States and Cuba and similarly authorized telecommunications facilities in such quantity and of such quality as may be necessary to provide efficient and adequate telecommunications services between the United States and Cuba. 5 The Libertad Act defined and codified the embargo as it was in effect on March 1, 1996, including the Cuban Assets Control Regulations ( CACR ) and various other embargo related statutes and regulations. The Libertad Act authorizes the President to suspend the embargo only if he determines that a transition Cuban government is in power. Furthermore, the Libertad Act requires the President to terminate the embargo if he determines that a democratically elected Cuban government is in power. Although the CDA does not define the term telecommunications facilities, this term is commonly used in the telecommunications industry. For example, the Glossary of Terms based on Federal Standard 1037C ( as well as ATIS Telecom Glossary 2007 ( both define telecommunications facilities as follows: The aggregate of equipment, such as radios, telephones, teletypewriters, facsimile equipment, data equipment, cables, and switches, used for providing telecommunications services. The definition of a telecommunications facility is quite broad particularly considering the reference to the aggregate of equipment used for providing telecommunications services. This definition also specifically refers to telephones and radios as being within the aggregate of equipment used for providing telecommunications services. A mobile phone is, of course, a telephone. It is also a radio given that communications occur through transmission of wireless signals. 6 4 Proclamation 3447 was issued by President Kennedy in Federal Register 1085, 3 CFR, , p CDA 22 U.S.C (e) (2) See 6 Cellular mobile: A mobile communications system that uses a combination of radio transmission and conventional telephone switching to permit telephone communication to and from mobile users within a specified area. Note: In cellular mobile systems, large geographical areas are segmented into many smaller areas, i.e., cells, each of which

5 Page 5 Similarly, a telephone or a radio is necessary to provide efficient and adequate telecommunication services. The above described industry glossaries define a telecommunication service as: 1. Any service provided by a telecommunication provider. 2. A specified set of user-information transfer capabilities provided to a group of users by a telecommunications system. It should go without saying that any telecom service cannot really be a service unless a person has the capability to use it to communicate. A user of a telecommunications service cannot use that service unless it has a facility (i.e., the aggregate of equipment necessary to provide that service which includes, of course, a telephone in the case of a fixed network and a mobile phone in case of a mobile network) that enables the user to connect to the network and actually hear the other person s voice. In short, Congress chose to use the rather broad terminology in its telecommunications exception to the embargo and it cannot reasonably be contended that the key equipment without which a conversation between an American and Cuban cannot occur was somehow excluded. The government has indeed already essentially acknowledged that a mobile phone is a telecom facility when it authorized that it is eligible for export if it is donated (see further explanation of the donation exception in Part III(C)(ii) of this paper). There is no legal basis under the Cuban embargo for distinguishing between mobile phones that are sold versus those that are donated. There is also no logical basis for concluding that allowing the sale of mobile phones would be any less effective in promoting the policy of increasing communications between Americans and Cubans than allowing the donation of those items. On the contrary, the distribution of mobile phones through gifts and by giving Cubans the opportunities to buy them maximizes the public policy of increasing communication because it dramatically increases the number of people who will potentially have access to these products. The Libertad Act amended the CDA s Section 6004(e) by adding at the end the following new paragraphs. 1) Prohibition on investment in domestic telecommunication services: Nothing in this subsection shall be constructed to authorize the investment by any U.S. person in the domestic telecommunications network within Cuba. For purposes of this paragraph, an investment in the domestic telecommunications network within Cuba includes the contribution (including by donation) of funds or anything of value to or for, and the making of loans to or for, such network and 2) The President shall submit to the Congress on a semiannual basis a report detailing payments made to Cuba by any U.S. person as a result of the provision of telecommunications services authorized by this subsection. 7 has its own radio transmitters and receivers and a single controller interconnected with the public switched telephone network. Synonyms: cellular phone, cellular radio, cellular telephone. (See Glossary of Terms based on Federal Standard 1037C ( ). See also ATIS Telecom Glossary of 2007 ( According to the International Telecommunication Union (ITU) a mobile phone is a portable terminal equipment used for communication and connecting to a fixed telecommunication network via a radio interface. See 4D96-8B9D-7B2E8B5C2090}

6 Page 6 This limitation on investment in telecommunications networks does not apply to mobile phones. Apart from the fact that it is common knowledge in the telecom industry that a mobile phone does not constitute a network, the fact that the government is already authorizing licenses for exportation of donated mobile phones should settle the question about whether this restriction is applicable to mobile phones. Otherwise, the license for exportation of donated phones would be contrary to the restriction on investment in networks. Moreover, at a more basic level, it is questionable that the sale of mobile phones should even be considered an investment. A sale of a mobile phone does not represent an act of investment in anything. On the contrary, the investment is made by the person purchasing the product. Additionally, based on the ITU definition of a communication network ( network that provides wireless network access points to mobile terminals 8 ), it is evident that the intent of this limitation was to restrict U.S. companies and persons from owning a part of the telecommunications infrastructure in Cuba and that it was not the intent to permit Cubans from ownership of the mobile terminals that connect to those networks. Despite the governmental limitations on technology in Cuba, the Cuban government has opened up access (still very limited, but legal) to the Internet and to mobile phones. 9 The Cuban government has reported that mobile phone lines now actually exceed land lines and that the number of mobile users exceeds a million. 10 Given this flexibilization and the resulting explosive growth in mobile phone penetration, any action that results in the exclusion of mobile phones from the mix of telecommunications products that can be sold to Cubans severely hampers any policy objective designed to promote communication between Cubans and Americans. The potential impact of a shift in policy on this issue could be significant considering the potential number of users of these devices, the number of communications that could occur, and the potential growth of citizen media activities 7 CDA 6004 (e) (5) and (6) 8 Mobile Network [ITU-T X.1121]: A network that provides wireless network access points to mobile terminals. See 1A606F2A6B2E}) Mobile terminal [ITU-T X.1121]: An entity that has wireless network access function and connects to a mobile network for data communication with application servers or other mobile terminals. See C80AFE8A 9 The retail sale of mobile phones within Cuban territory is currently permitted under Cuban law and the mobile phones are distributed by Empresa de Telecomunicaciones de Cuba, S.A. (ETECSA) who holds the monopoly of the telecommunication services in Cuba. It is illegal under Cuban law to distribute mobile phones, satellite phones or other telecommunication facilities without prior approval of the Cuban authorities. By virtue of Resolution Nº 84/2008 of the Cuban Ministry of Informatics and Communications and following the directives of the Cuban president, Raúl Castro, the Cuban government lifted restrictions on ownership of mobile phones in Cuba. Cuba Official Gazette Maximo Lafuente, Vice President of Cuba s telecommunications company reported the results. (See Prensa Latina: Telefonía celular en Cuba supera totalidad de líneas fijas, 07/14/2010).

7 Page 7 characterized by everyday citizens producing, collecting, and sharing information. While there are many titles for this new form of journalism, such as mobile citizen media; mobile citizen journalism, and mobile reporting, the basic concept is the same: citizens posting media directly from a mobile phone to the Internet or other mobile phones, and an online public. The media published may include groundbreaking news, or stories, pictures, and information that is neglected by mainstream media organizations. Individuals with mobile phones and other media tools are able to capture news in real or close-to-real time - much more immediately and rapidly than professional journalists. Mobile phones are portable, they are personal and intimate, and they are the most pervasive item for communication between people today. They are intuitively and inherently social, expressive devises. Everyday citizens, organized groups and dissidents are capitalizing on the power of mobile technology to report the political reality across the globe. It is mentioned that the U.S. Congress approved the China Trade Bill after House leader Dick Armey made the impassioned plea that information is the lifeblood of a market. It is also poison to dictators. 11 Mobile phones are therefore not only within the scope of the CDA s telecommunications facilities exception but they are perhaps the most effective tool for promoting U.S. policies as it is the most accessible telecommunications device to Cubans. B. Evolution Of The Telecommunications Exception (Bush And Obama Policy Shifts) Demonstrates The Broad Executive Authority In This Area Despite broad statutory exceptions to the embargo for telecommunications, the exportation of telecommunications facilities has been limited from a regulatory perspective. In recent years, as technology has evolved and the benefits that telecommunications can bring to any society have become more evident, the Bush and Obama administrations acting under their broad statutory authority have implemented incremental regulatory changes to the Cuban embargo. Yet, despite language that would suggest otherwise, these fairly recent regulatory initiatives have not authorized the sale of mobile phones (at least based on industry communications with the two relevant administrative agencies responsible for enforcement of such regulations). In 2008, in response to the notice by Raul Castro that Cubans would be allowed to own mobile phones for the first time the Bush administration announced it would permit Cuban Americans to distribute them to relatives on the island. 12 Subsequently, the United States adopted regulations which created the gift parcel license exception for mobile phones. This example of the exercise of Presidential authority under the embargo is significant because the Bush administration used its discretion to exempt U.S.-origin electronics on the Commerce Control List (CCL) which are specially controlled by the Department of Commerce for reasons of anti-terrorism to a country that the State Department says is a sponsor of terrorism. Equally significant, relative to regulatory authority, is the introductory language in the federal register notice adopting these regulations which confirm that the source of the regulatory authority to permit the export of 11 Daniel P. Erikson, The Cuba Wars, Fidel Castro, the United States, and the Next Revolution, Bloomsbury Press 2009, page President Bush in a speech on the Day of Solidarity with the Cuban People. 2008

8 Page 8 mobile phones to Cuba is consistent with the embargo s goal of pursuing democracy building efforts: Expansion of the Gift Parcel License Exception Regarding Cuba to Authorize Mobile Phones and Related Software and Equipment: This rule revises a license exception in the Export Administration Regulations (EAR) to allow the export of mobile phones as gifts sent by individuals to eligible recipients in Cuba. The Bureau of Industry and Security (BIS) is taking this action to provide support for individuals to support democracybuilding efforts for Cuba by enabling the free exchange of information among Cuban citizens and with persons in other countries. In support of this Presidential initiative, BIS is taking regulatory action consistent with all relevant laws, including the Libertad Act of 1996, to allow exports of mobile phones in specified circumstances. This action is consistent with the ongoing support the United States has provided to individuals who support democracy-building efforts for Cuba by enabling the free exchange of information among persons in Cuba and with persons in other countries (emphasis added) 13 Continuing President Bush s lead in the telecom area, President Obama early in his administration announced a further liberalization of the embargo relative to telecommunications. The Federal Register summarizes the changes and describes the intent of those changes: License Exception for Donated Consumer Communications Devices (CCD) and Expansion of Licensing Policy Regarding Telecommunications: This rule revises two existing License Exceptions concerning exports and re-exports of gift parcels to Cuba and of personal baggage taken by individuals leaving the United States for travel to Cuba. It also creates a new License Exception authorizing the export and re-export to Cuba of certain donated consumer communications devices, including certain computers and software, mobile phones, and satellite receivers. Finally, this rule revises the scope of existing licensing policy regarding certain telecommunications links including satellite radio and satellite television services. These actions are among those directed by the President on April 13, 2009 to enhance the free flow of information to and from Cuba and to promote contacts between Americans and their relatives who reside in Cuba as a means of encouraging positive change in Cuba and are consistent with the ongoing support the United States has provided to individuals and non-governmental organizations that support democracy-building efforts in Cuba. These actions do not suspend or terminate the United States embargo of Cuba. The changes made by this rule are intended to update, consistent with the Libertad Act and other relevant legislation, certain provisions of the United States embargo of Cuba to: (1) address the impact of economic and technological changes that have taken place in recent years; and (2) ensure that the embargo continues to support the goals of promoting 13 Federal Register, Bureau of Industry and Security, Commerce. Final rule effective on 06/13/2008. See

9 Page 9 democracy in Cuba and providing support for the Cuban people. None of the changes made by this rule suspend or terminate the United States embargo of Cuba. 14 Once again, in further liberalizing the embargo, the regulator relied on the Libertad Act and other relevant legislation and supported the changes on, among other things, the need to ensure the embargo continues to support the goals of promoting democracy. Thus, even though specific legislative authority existed under the CDA s telecommunications exception, both administrations recognized and relied on broad presidential authority to make changes to the embargo necessary to support the goals of the embargo and at the same time recognized the policy benefits of mobile phones in furthering that goal. Yet, the regulations do not contain specific language permitting the sale of mobile phones and contacts with agency officials to date has revealed that the sale of mobile phones would not be within scope of the recent changes notwithstanding the broad language in the regulations that appear to encompass mobile phones. C. Despite Using Similar Language to the Telecom Facilities Exception in the CDA, the two Federal Agencies Responsible for the Recent Regulations Do Not Appear Ready to Interpret Them Broadly Enough to Reach the Sale of Mobile Phones (i) Cuban Assets Control Regulations ( CACR ) The President has delegated to the Secretary of the Treasury the embargo powers granted to him by Section 5(b) of the TWEA. The Secretary has in turn assigned responsibility for the exercise of this authority to the Treasury s Office of Foreign Assets Control ( OFAC ). 15 OFAC is the office responsible for issuing, interpreting and applying the regulations that implement the various trade embargoes imposed by the United States. 16 OFAC published in 1963 a comprehensive set of regulations implementing the Cuban trade embargo. 17 These regulations have been amended a number of times, most recently in September and March The CACR have been challenged in the courts, and have been 14 Federal Register, Bureau of Industry and Security, Commerce. Final rule effective on 09/03/2009. See 15 Treasury Department Order No. 128 (Rev. 1, Oct. 15, 1962). 16 The CDA also identifies the Department of Treasury (and consequently OFAC) as the chief agency given authority to enforce the legislation, and amends the TWEA by empowering Treasury to impose civil penalties and forfeitures of property for violating the CDA s prohibitions. Section 1710 of the CDA, 50 USC Appendix Fed. Reg. 6974, July 9, The regulations, known as the Cuban Assets Control Regulations ( CACR ), are codified in 31 C.F.R. Part 515. Pursuant to the CDA s authority, on June 29, 1993, OFAC published regulations amending the CACR to incorporate several of the CDA provisions. (See 58 FR on June 29 (1993). The amendments reflected the CDA s prohibition on the issuance of licenses for most trade between third country subsidiaries of U.S. companies, imposed a prohibition on the entry into the United States of vessels touching Cuban ports, and added civil penalty authority. 18 OFAC s regulations updated on September 3, 2009 Federal Register Docket Vo. 74, No See

10 Page 10 uniformly upheld. 20 While transactions with Cuba relating to telecommunications were first liberalized under the CDA in 1992, the new CACR regulations announced in September 2009 (in response to the White House memo of April 2009) provided that certain telecommunications services, contracts, related payments, and travel-related transactions are authorized by general licenses 21, that is, without requiring permission via license by OFAC. Specifically, OFAC s new regulation reads, in part, as follows: Mail and telecommunications-related transactions. (a) * * * (b) All transactions, including but not limited to payments, incident to the provision of telecommunications services between the United States and Cuba, the provision of satellite radio or satellite television services to Cuba, or the entry into and performance under roaming service agreements with telecommunications services providers in Cuba, by a telecommunications services provider that is a person subject to U.S. jurisdiction are authorized. This paragraph does not authorize any transactions addressed in paragraphs (c), (d), (f) or (g) of this section, nor does it authorize the entry into or performance of a contract with or for the benefit of any particular individual in Cuba. (c) * * * (d)(1) General license for telecommunications facilities linking the United States and Cuba. Transactions incident to the establishment of facilities to provide telecommunications services linking the United States and Cuba, including but not limited to fiber-optic cable and satellite facilities, are authorized. 31 C.F.R (Emphasis added) This regulation was significantly different from the existing regulatory scheme in several respects and it undoubtedly changed the regulatory landscape insofar as exports of certain 19 Omnibus Appropriations Act, containing an interpretation of the term payment of cash in advance, which is used to describe one of the two payment or financing terms for authorized exports from the United States to Cuba pursuant to the Trade Sanctions Reform and Export Enhancement Act (the TSREA ) of 2000, effective March 9, See 20 See, e.g., Regan v. Wald, 468 U.S. 222, 104 S.Ct (1984); Miranda v. Secretary of Treasury, 766 F.2d 1 (1st Cir. 1985); Sardino v. Federal Reserve Bank of New York, 361 F.2d 106 (2d Cir.), cert. denied, 385 U.S. 898 (1966). In recent cases, Treasury s authority to issue additions or modifications to the CACR has been upheld on the strength of the statutory authority of the TWEA. See, Regan v. Wald, 104 S.Ct. at 3029; American Airways Charters, Inc. v. Regan, 746 F.2d 865, 867 (D.C. Cir. 1984); De Cuellar v. Brady, 881 F.2d 1561, 1562 (11th Cir. 1989), cert. denied, 498 U.S. 895 (1990). See also, Walsh v. Brady, 927 F.2d 1229 (D.C. Cir. 1991); Capital Cities/ABC, Inc. v. Brady, 740 F.Supp. 1007, 1008 (S.D.N.Y. 1990); Cernuda v. Heavy, 720 F.Supp. 1544, (S.D.Fla. 1989). 21 A general license is an authorization the full details of which are provided in the relevant section of the Regulations. A person relying on a general license may engage in the activities it authorizes without needing to write in to OFAC for a letter of specific authorization (a specific license ).

11 Page 11 telecommunications products to Cuba are concerned. Former Regulation 31 C.F.R (c), which set forth a case-by-case licensing policy for payments to Cuba for authorized telecommunications services, was removed. Moreover, a new paragraph (c) of section authorized all persons subject to U.S. jurisdiction to enter into, and make payments under, contracts with non-cuban telecommunications services providers, or particular individuals in Cuba, for services provided to particular individuals in Cuba, such as a contract for mobile telephone service for a phone owned and used by a particular individual in Cuba. Additionally, newly added paragraph to Regulation 31 C.F.R (d) (1) provided for a general license authorizing transactions incident to the establishment of facilities. In fact, the text in the new regulation is remarkably similar to the language in the telecommunications facilities exception in the CDA given the use of the word telecommunications facilities and the use of such facilities in providing telecommunications services. As with the CDA, however, telecommunications facilities is not defined. There is nothing in the regulations that would suggest that this term was meant to be different than the term used in the CDA and as we have already seen that the term telecommunications facility is certainly broad enough to include a mobile phone. Read in the context of the industry definition for telecommunications facility, a literal reading of the regulation would seem to indicate that a general license should be available for the sale of mobile phones. However, OFAC has not agreed with such an interpretation. In any event, the OFAC interpretation of this regulation is somewhat moot given that the other agency responsible for implementing the embargo the Bureau of Industry and Security has not authorized a general exception to the license requirement relative to sale of mobile phones to Cuba. (ii) U.S. Department of Commerce s Bureau of Industry and Security Regulations A similar history applies to the regulations adopted by the other agency responsible for enforcing the embargo, the Bureau of Industry and Security (BIS). BIS has generally required a license for all exports to Cuba. 22. Unless a license exception is available, the likelihood of obtaining a license is virtually zero as BIS has a general policy of denial on license requests. 23 The President s April 13, 2009 memorandum directed, among other things, that the Commerce Secretary authorize, through a license exception and consistent with national security concerns, the export and re-export of donated personal telecommunications devices such as mobile phone systems, computers and software, and satellite receivers. To implement the directive, Commerce through BIS created a new license exception in (15 C.F.R ) that authorized the export and re-export to Cuba of consumers communications devices and software, among which were included mobile phones. However, the authorization of exports of consumer communications devices and software is subject to significant limitations. First, the mobile phones had to be donated: This License Exception authorizes the export or reexport of eligible commodities and C.F.R See C.F.R (b)

12 Page 12 software that will be donated by the exporter or reexporter to an eligible end-user or to eligible end-users free of charge. 24 The significance of narrowly limiting the exception to donated mobile phones has already been discussed. Second, it significantly limited to whom the donated mobiles could be sent: This License Exception may be used to export or reexport eligible commodities and software to and for the use of independent non-governmental organizations. The Cuban Government or the Cuban Communist Party and organizations they administer or control are not eligible end-users. 25 The major opportunity or channel for distribution of mobile phones in any country in Latin America (Cuba not excluded) is through the mobile operators. There is only one telecom operator in Cuba and it is administered by the government. Although generally speaking BIS made some progress in its regulations relative to telecommunications, it did not dramatically change the regulatory landscape in this regard. BIS did not drastically change its licensing policy relative to telecommunications. While it did create the license exception for donated consumer communications devices and software, there was otherwise very little change relative to its general policy of denial. Items requiring a license continue to subject to a general policy of denial, except as follows: Items may be authorized for export or reexport to Cuba on a case-by-case basis, provided the items are necessary to provide efficient and adequate telecommunications links between the United States and Cuba, including links established through third countries, and including the provision of satellite radio or satellite television services to Cuba.. 26 While this text certainly broadened the potential universe of telecommunications products that would not be subject to the general policy of denial, the term items or telecommunications links were not defined by BIS. BIS s comments in the preamble to the regulation, however, suggested that this exception was broad: The scope of items eligible for export or reexport now includes any item (commodity, technology, or software) necessary to provide efficient and adequate telecommunications links between the United States and Cuba. (emphasis added) 27 The language of the regulation itself and the BIS comments in announcing the regulation certainly could be interpreted as broad enough to include a mobile phone. As with the OFAC regulations, there does not appear to be a significant difference between the CDA s use of telecommunications facilities for providing telecommunications services and BIS s use of items used to establish a telecommunications link. These terms certainly appear to be interchangeable and it is not unreasonable to conclude that all of the terms used are broad enough to include mobile phones. Once again, however, BIS has thus far not agreed with this interpretation C.F.R (c) See C.F.R (d) C.F.R (b) (2). Previously, 15 C.F.R (b)(2) provided: "Telecommunications commodities may be authorized on a case-by-case basis, provided the commodities are part of an FCC-approved project and are necessary to provide efficient and adequate telecommunications between the United States and Cuba." 27 See Federal Register / Vol. 74, No. 172 / Tuesday, September 8, 2009 / Rules and Regulations

13 Page 13 IV. Conclusion The President of the United States has the power to update, consistent with the Libertad and other relevant legislation, certain provisions of the Regulations to: 1) address the impact of mobile phones and technological changes that have taken place in recent years; and 2) ensure that the embargo continues to support the goals of promoting democracy and providing support for the Cuban people without suspending or terminating the U.S. embargo of Cuba. The President also has the additional specific legislative authority to allow export of telecommunications facilities necessary to provide telecommunications services. This authority has been exercised by the executive branch on a number of occasions including recently relative to its application in the telecommunications sector. 28 Notwithstanding this authority, neither OFAC nor BIS has approved the sale of mobile phones to Cuba and applications for a license for sale of mobile phones to Cuba continue to be subject to a general policy of denial despite plain language in the regulations which would reasonably lend itself to an alternative interpretation. If this interpretation prevails, the regulations are logically inconsistent. If regulatory authority exists for donation of mobile phones the same authority exists for allowing their sale. Despite considerable effort, the authors of this paper have not been able find any basis in the legislation and regulations underlying the embargo which would support a legal distinction between the sale of mobile phones and their donation. Perhaps OFAC and BIS determined as a policy matter that sales of mobile phones would not further U.S. interests. If so, this conclusion is difficult to understand. The policy reasons supporting the donation of mobile phones are equally applicable to the sale of mobile phones and indeed those policy reasons can be better served by maximizing the distribution of these devices given that more Cubans own a cell phone than a fixed line telephone or any other form of communication device. A regulatory change, however, may not be necessary. The current language in the regulations is broad enough to encompass mobile phones and one solution would seem to interpret the existing regulations to allow for the sale of mobile phones. Of course, regulatory change could be necessary to dispense with the need for case-by-case licenses (i.e. a license exception would be preferable). Similarly, regulatory change may be necessary insofar as the definition of end-user is concerned. Authorizing specific licenses for export and sale of mobile phones may not be meaningful unless the sale is permitted to the telecom operator who provides the service in the country. Otherwise, this provides a significant limitation on the biggest channel for distribution of these products. 28 On March 8, 2010, the U.S. Treasury Department's Office of Foreign Assets Control ("OFAC") has issued a new rule authorizing exports of certain personal Internet-based communications services, such as instant messaging, chat and , and social networking to Iran, Cuba, and Sudan. The new rule is intended to promote personal communication as a counterbalance to state-controlled media in sanctioned countries, as championed by the Secretary of State in a recent speech, and it supplements recent congressional initiatives to advance Internet freedom. OFAC's action also ends the threat of regulatory action against distributors of popular free platforms that have become widely used by private citizens and groups within sanctioned countries to disseminate uncensored information. See

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