Telecommunications in Cuba: Repeal of the Cuban Democracy Act and the Cuban Liberty and Democratic Solidarity Act.

• Date: 01 September 2019
• Author: Becnel, Abigail

TABLE OF CONTENTS I. INTRODUCTION 357 A. Overview of Thesis 358 II. BACKGROUND 358 A. History of the United States Embargo on Cuba 359 1. The Cuban Democracy Act of 1992 360 2. The Cuban Liberty and Democratic Solidarity Act of 1996 361 3. U.S.-Cuban Relations Under the Obama Administration 362 4. U.S.-Cuban Relations Under the Trump Administration 363 B. Telecommunications and Cuba 364 1. The FCC's Removal of Cuba from Its Exclusion List 365 2. Telecommunications Between the United States and Cuba 366 III. ANALYSIS 367 A. United States Code 22 Section 6004(e) (2) Creates Problems for United States Telecommunications Providers Interested in Setting Up Facilities in Cuba 367 B. United States Code 22 Section 6061 (14) and Section 6065 of the Cuban Liberty and Democratic Solidarity Act Create Problems for United States Telecommunications Providers Interested in Setting Up Facilities in Cuba 368 C. United States Code 22 Section 6032(g) Also Creates Problems for United States Telecommunications Providers Interested in Setting Up Facilities in Cuba 369 IV. PROPOSAL 369 A. Repeal or Redefine United States Code 22 Section 6004(e)(2) of the Cuban Democracy Act 370 B. Repeal United States Code 22 Section 6061 (14) and Section 6065 of the Cuban Liberty and Democratic 371 Solidarity Act C. Repeal United States Code 22 Section 6032(g)(5) of the Cuban Liberty and Democratic Solidarity Act 372 D. The Benefits of Repealing These Sections of the Cuban Democracy Act and the Cuban Liberty and Democratic Solidarity Act Outweigh the Possible Drawbacks 372 V. CONCLUSION 374 I. INTRODUCTION

Cuba should be the latest hot spot for telecommunications providers. In 2015, only 40 percent of Cuba's 11.5 million people had access to the Internet. (1) More than half of Cubans who use Cuba's national telecommunications service, Empresa de Telecomunicaciones de Cuba S.A. (ETECSA), travel up to three miles to get Wi-Fi. (2) The United States' telecommunications providers should be eager to remedy these problems and set up telecommunications facilities in Cuba, since President Obama announced restored diplomatic relations between the United States and Cuba in December of 2014. (3) And while President Trump has since reversed some actions on travel and trade taken by the Obama Administration, he has not announced that he would break diplomatic relations. (4) In fact, the Trump Administration has stated that it plans to increase telecommunications and Internet access for the Cuban people. (5) On January 15, 2016, the FCC removed Cuba from its Exclusion List, (6) allowing companies to provide telecommunications services to Cuba without separate approval from the FCC and making Cuba seem even more appealing for telecommunications providers. (7) Although Cuba's untapped telecommunications market and recently restored diplomatic relations with the island may make Cuba look like the ideal location for telecommunications companies, (8) these companies risk violating federal laws by getting involved in telecommunications in Cuba. (9)

1. Overview of Thesis

   Congress should repeal the Cuban Democracy Act and the Cuban Liberty and Democratic Solidarity Act in an effort to restore trade relations with Cuba, allowing telecommunications providers to conduct business with Cuba legally. Most importantly, Congress should repeal or redefine United States Code 22 Section 6004(e)(2) of the Cuban Democracy Act and repeal United States Code 22 Sections 6061(14), 6065, and 6032(g)(5) of the Cuban Liberty and Democratic Solidarity Act in an effort to increase telecommunications services in Cuba and the free flow of information between the U.S. and Cuba.

   First, this Note will give a brief history of the United States' trade embargo on Cuba. Second, it will explain the implications of the Cuban Democracy Act of 1992, the Cuban Liberty and Democratic Solidarity Act of 1996, and the FCC's 2016 decision to remove Cuba from its Exclusion List. Then, it will describe recent telecommunications issues in Cuba, the latest changes made under the Obama and Trump administrations, and the current state of telecommunications in Cuba. Next, this Note will analyze the current state of telecommunications between the United States and Cuba and the problems that U.S. telecommunications providers face by setting up facilities in Cuba. This Note will propose legislative action that should be taken to allow telecommunications companies to provide service to Cubans without violating federal law. Lastly, this Note will explain some of the unintended consequences that could occur if the recommended legislative proposals are implemented and why Congress should act despite the potential drawbacks.

   2. BACKGROUND

   In order to understand the obstacles facing companies wishing to establish telecommunications services in Cuba, it is important to understand the history of U.S.-Cuban relations and the legislation that has kept the trade embargo in place. The circumstances surrounding the United States breaking off ties with Cuba, a country once significantly tied to American business and tourism, is an important aspect of the diplomatic history that has led to the current state of business relations and telecommunications between the United States and Cuba. The history of the United States embargo on Cuba can be understood through the Cuban Democracy Act of 1992 (10) and the Cuban Liberty and Democratic Solidarity Act of 1996. (11) It is important to understand the recent changes made in United States-Cuban policy and telecommunications by the Obama Administration, the Trump Administration, and the FCC in order to understand the current state of telecommunications in Cuba and the problem with United States telecommunications providers setting up facilities in Cuba for U.S. companies.

1. History of the United States Embargo on Cuba

   Fidel Castro came to power in Cuba on January 1, 1959 when he overthrew United States-backed President General Fulgencio Batista. (12) Castro established a socialist state in Cuba, allied and backed by the Soviet Union. (13) His new government quickly "seized private land [and] nationalized hundreds of private companies, including several local subsidiaries of U.S. corporations," and imposed heavy taxes on imports from the United States. (14) Over the past 50 years, the United States has implemented policies and legislation intended to isolate Cuba economically and diplomatically until democracy is restored on the island. (15)

   On October 19, 1960, President Eisenhower's State Department responded to Castro's actions by imposing the first trade embargo on Cuba, which "covered all U.S. exports to Cuba except for medicine and some foods." (16) Then, in 1962, President Kennedy issued Presidential Proclamation No. 3447, which expanded the embargo to U.S. imports from Cuba and cut diplomatic ties with the island. (17) However, it was not until the 1990s that the trade embargo was enacted into law with the passage of the Cuban Democracy Act of 1992 (18) and the Helms-Burton Act of 1996. (19) Although relations between the United States and Cuba were reexamined and partially opened under the Obama Administration, the trade embargo is still in place by law and "an act of Congress is required to remove it." (20)

   The trade embargo that the United States imposed on Cuba forced Cuba's economy to "rely on the Soviet Union as [the island's] primary trade partner." (21) The island nation's undiversified economy depended on annual subsidies from the Soviet Union. (22) However, when the Soviet Union collapsed in the early 1990s, so did Cuba's economy. (23) The recession that Cuba faced in the early 1990s came to be known in Cuba as the "Special Period in Peacetime." (24) During this time, Cuba lost over 80 percent of its foreign trade. (25) A quarter of the country became unemployed, and food, medicine, and transportation became scarce. (26) As the Cuban people and Cuban economy suffered, the United States saw this as an opportunity to oust Fidel Castro and bring democracy to Cuba. (27) During Cuba's Special Period in Peacetime, the United States tightened its economic sanctions on Cuba by passing the Cuban Democracy Act of 1992 and the Cuban Liberty and Democratic Solidarity Act of 1996. (28)

   1. The Cuban Democracy Act of 1992

      The Cuban Democracy Act of 1992, (29) also known as the Torricelli Act, was signed into law by President Bush on October 23, 1992. (30) The passage of the Cuban Democracy Act was the first step toward making the United States' embargo on Cuba an official law, rather than an executive policy upheld by successive administrations. (31) The act sought to transition Cuba to democracy through the use of sanctions that were "directed at the Castro government." (32) The sanctions restricted the issuing of licenses for transactions between U.S.-owned or controlled firms in third countries and Cuba, (33) prohibited certain vessels from entering the United States' ports, (34) and restricted remittances to Cuba. (35) The act also directed the President to encourage countries that conduct trade with Cuba to restrict their trade (36) and applied sanctions to any country that provides assistance to Cuba. (37) The act states that the sanctions implemented by the Cuban Democracy Act are to continue as long as the Castro regime "refuse[s] to move toward democratization and greater respect for human rights." (38)

      United States Code 22 Section 6004(e), from the Cuban Democracy Act, specifically addresses telecommunications services and facilities between the United States and Cuba. (39) Section 6004(e)(4) explains that nothing in Section 6004(e) supersedes the authority of the FCC. (40) Section 6004(e)(1) of the act allows telecommunications services between the United States and Cuba, (41) but Section 6004(e)(2) of the act authorizes telecommunications facilities in Cuba only in the "quantity and quality...necessary to provide efficient and adequate telecommunications services...