United States: New Rules Regarding Telecommunications Service To Cuba

Jonathan Epstein is a partner in our Washington, D.C. office.
Eric Fishman is a partner in our New York office.
Ronald Oleynek is a partner in our Washington, D.C. office.

In early September, the Office of Foreign Assets Control (OFAC) and the Commerce Department Bureau of Industry and Security (BIS) published long-awaited regulations implementing the Cuba policies announced by the White House in April 2009. In a sweeping departure from prior U.S. policy, these presidential policies – which are intended to promote the freer flow of information to the Cuban people – significantly reduce the licensing requirements and other barriers for telecommunications providers to offer services to Cuba. In addition, they authorize the following:

  • transactions involving the establishment of new fiber-optic cable and satellite facilities between the U.S. and Cuba
  • roaming agreements with Cuban telecommunication providers
  • expanded travel to Cuba in connection with business activities related to telecommunications

These changes may be a major boon to American telecommunications companies, which have sought to do business in Cuba for many years. The ultimate outcome of the White House initiative, however, hinges on a number of factors. Although new regulations have been adopted by certain U.S. government agencies, the Federal Communications Commission (FCC) is awaiting State Department guidance and has not yet changed its Cuba policies, which date back to 1993. It is not known how the State Department and the FCC will conform its policies to the White House initiative – nor is it known how the Cuban government will react to the policy changes.

OFAC's New Telecommunications Regulations

Generally, OFAC regulations bar U.S. companies, U.S. citizens and foreign entities owned or controlled by U.S. companies (collectively, "persons subject to U.S. jurisdiction") from engaging in any transaction with Cuba, whether the transaction be related to individual travel or the provision of services or equipment. OFAC authorizes certain transactions either under a specific license issued by OFAC for a particular transaction (the licensing process can take months), or the much more favorable general license (which "automatically" authorizes any transaction meeting the license criteria).

Relaxation Of OFAC Regulations

The new OFAC regulations expand, and to some extent clarify, the conditions under which transactions related to telecommunications services are authorized, as follows:

  • Roaming Agreements. Telecommunications providers subject to U.S. jurisdiction can enter into and engage in transactions relating to roaming service agreements with most Cuban telecommunications providers.
  • Satellite Radio/TV Service To Cuba. Telecommunications providers subject to U.S. jurisdiction can provide satellite radio or satellite TV in collaboration with certain Cuban telecommunication providers.
  • Third-Country Telecommunication Providers. Any person subject to U.S. jurisdiction can contract with and make payments to third-country telecommunications providers who provide service to most individuals in Cuba.
  • Establishment Of Telecommunications Facilities. Transactions incident to establishing fiber-optic cable and satellite links and other telecommunication facilities between the U.S. and Cuba are now authorized by general license.
  • Licensing For Third-Country Links To Cuba. OFAC will issue specific licenses to persons subject to U.S. jurisdiction (on a case-by-case basis) for establishment of telecommunication facilities between third countries and Cuba, to facilitate telecommunication links between the U.S. and Cuba. (Previous OFAC policy was to deny such applications.)
  • Travel To Cuba Related To Telecommunications. Employees and representatives of U.S. telecommunications service providers may now travel to Cuba under a "general license" to provide a broad range of services, including commercial marketing, sales negotiation, accompanying delivery of or servicing equipment, and certain telecommunications-related professional meetings.

Limitations And Qualifications

Although these relaxations appear to be broad, they are subject to certain restrictions and caveats, including the following:

  • Equipment Exports Not Covered. Any transaction that involves selling, installing or servicing equipment could require separate authorization from BIS for export of the equipment or technology.
  • Notices And Reports. Persons subject to U.S. jurisdiction who offer telecommunication services to Cuba must notify OFAC in writing within 30 days of commencing or ceasing to offer such services, and must provide semi-annual reports to OFAC on payments made to Cuba or third-countries related to services provided to Cuba.
  • Excluded Cuban Persons. The above authorizations do not apply to transactions involving certain Cuban government officials and Communist Party members.
  • Travel Limitations. The general license for travel is limited in that the traveler's schedule must be consistent with a full work schedule, and the daily amount spent is limited to State Department per-diem rates (currently $179 per day).

BIS Relaxes Exporting Of Telecommunications Equipment

BIS generally prohibits the export of any items (including commodities, software or technology) to Cuba, with limited exceptions for humanitarian items such as food, medicine and medical equipment. Export licenses for most U.S. items would, as a matter of policy, usually be denied. Note that these same restrictions also apply extra-territorially, and prohibit foreign persons from re-exporting U.S.-origin items to Cuba. In the past, BIS would only license the export of certain telecommunications equipment to Cuba, and then only if commodities were part of an FCC-approved project and necessary to provide efficient and adequate communications between the United States and Cuba. In September 2009, BIS changed its policy to allow the following:

  • Revised Licensing Policy For Telecommunications Equipment. In keeping with the presidential policy, BIS will grant licenses on a case-by-case basis, not only items that are part of an FCC-approved project, and it will consider any item necessary to provide "efficient and adequate" telecommunication links between the U.S. and Cuba, including links established through third-countries, and including the provision of satellite radio or satellite TV services to Cuba. (Note that providing technical assistance or training to Cuban nationals or in Cuba would constitute an export of "technology.")
  • Donated Consumer Communications Devices. BIS now allows the export without a license of certain donated consumer communications devices, including most televisions, radio receivers, mobile phones, and certain older personal/laptop computers and accessories, subject to certain limitations. This license exception is limited to donations to most individuals and non-government organizations in Cuba.

How Will FCC Implement The Presidential Policy?

As alluded to above, FCC licensing policy toward Cuba has largely been governed by a 1993 letter from the State Department to the FCC. That letter set forth policy guidelines of the executive branch for implementation of the telecommunications provisions of the Cuban Democracy Act of 1992, which provides that "telecommunications services between the United States and Cuba shall be permitted." The streamlined procedures for 214 authorization needed to provide international service has not been applied to Cuba licenses. Instead, U.S. telecommunications providers have to jump through a number of hoops to obtain a license. For example:

  • Proposals must have the potential to be operational within a year and be limited to equipment and services necessary to deliver a signal to an international telecommunications gateway in Cuba.
  • Settlements more favorable to Cuba than the then-current (as of 1993) 50/50 split of the $1.20 per minute accounting rate are not permitted. In addition, Cuba must cover half the costs of the construction, maintenance and/or lease of transmission facilities, consistent with standard FCC practice.
  • Proposals that draw on modes of communications already in place between the United States and Cuba as of 1993 (e.g., satellites and undersea cable) will be approved. Proposals involving new modes of communications (e.g., fiber optic cable) will be reviewed by the appropriate agencies on a case-by-case basis.
  • The application procedures require all applicants to provide a narrative description of their proposed agreement as well as a sworn statement that the Cuban foreign correspondent agrees to activate the proposed circuits on the Cuban end. Copies of such documents must also be submitted to the U.S. Departments of Treasury and State.

Since the 1993 State Department letter was written, the FCC has granted authorizations for service to Cuba to a number of carriers,1 although these authorizations have been limited under and subject to the terms of the letter. For example, the authorizations the agency has granted to date have only involved existing facilities that had already been in place in 1993. The FCC has not approved any new modes of communications that provide direct links to Cuba, such as submarine fiber optic facilities, nor has it approved roaming agreements with Cuba's telecommunications service providers.

New FCC Guidance

The White House directive expressly removes these current restrictions and allows for satellite radio and satellite television services. While the FCC awaits guidance from the State Department, it continues to follow the 1993 guidance.

Other Considerations

There are a number of other factors that may affect how and when telecommunications providers can provide certain services to Cuba. In particular, the Cuban government might seek payment of royalties owed to it by AT&T, which were held for years in a blocked account but were depleted by default judgments by U.S. plaintiffs against Cuba. In fact, as a result of legislation passed in 2008, certain U.S. plaintiffs (many of whom have large default judgments against the Cuban government) can now potentially seek to attach or garnish payments being paid by U.S. telecommunication companies to any Cuban entity owned or controlled by the Cuban government.


1. July 22, 1993 letter from Richard C. Beaird, Acting U.S. Coordinator and Director, Bureau of International Communications and Information Policy, United States Department of State, to Chairman Quello, FCC ("U.S. Department of State Guidelines"). See, e.g., WilTel International, Inc. et al., DA 94-1098, released October 5, 1994; AT&T Corp., DA 96-518, released April 9, 1994; Sprint Communications Company, L.P., DA 99-903, released Mary 17, 1999; Allied Communications International, Inc., DA 05-699, released March 17, 2005; CODETEL International Communications Incorporated, DA 03-1873, released June 3, 2003; Telecuba, Inc., DA 03-1512, released May 6, 2003; Sprint Communications Company L.P., DA 00-1184, released May 26, 2000; CODETEL International Communications Incorporated, DA 00-868, released April 14, 2000.


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions