E8-25463. Level 3 Communications, L.L.C., Austin, TX; Notice of Negative Determination Regarding Application for Reconsideration

By application dated September 29, 2008, a worker requested administrative reconsideration of the Department's negative determination regarding eligibility to apply for Trade Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance (ATAA) applicable to workers and former workers of Level 3 Communications, L.L.C., Austin, Texas (subject firm). The determination was issued on September 11, 2008. The Department's Notice of determination was published in the Federal Register on September 24, 2008 (73 FR 55137). The subject workers are engaged in telecommunication activities related to network design and provisioning in support of customer requests, infrastructure, and network grooming activities.

The petition for TAA was denied because the workers do not produce an article within the meaning of Section 222(a)(2) of the Trade Act of 1974. In order to be certified eligible to apply for ATAA, the worker group must be eligible to apply for TAA. Since the worker group is denied eligibility to apply for TAA, they cannot be certified eligible to apply for ATAA.

In the request for reconsideration, the worker stated that “the position I held did create an article that was required by the customers * * * a document referred to as an LOA (Letter of Authorization).” The worker also states that the LOA “provided vital information, which included the actual circuit and channel assignment, to the customer. Without this information they would not be able to physically connect to the correct equipment in the field * * * The LOA also gave them a legal document that stated they were allowed to connect to our equipment and or we were allowed to connect to their equipment in the field. The circuit design and or provisioning could not be done or move forward without this LOA.”

Pursuant to 29 CFR 90.18(c), administrative reconsideration may be granted under the following circumstances:

(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;

(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or

(3) If in the opinion of the Certifying Officer, a misinterpretation of facts or of the law justified reconsideration of the decision.

In order to be considered eligible to apply for adjustment assistance, the worker group seeking certification must work for a firm or appropriate subdivision that produces an article and there must be a relationship between the workers' work and the article produced by the workers' firm or appropriate subdivision.

The workers' firm provides telecommunication network services. The firm's Web site states that it is a “provider of fiber-based communication services * * * Our network offerings include Internet Protocol (IP) services* * * content and video delivery, data and voice services.” Further, previously-submitted documents, including the petition and the questionnaire completed by the subject firm, confirm that the subject firm provides a service.

Unlike a manufacturing firm, Level 3 Communications, L.L.C. (Level 3) is not in the business of producing an article and then selling it, and the subject firm does not receive revenue from the sales of the LOA. Level 3's revenue flows from providing its customers with network communication services. The LOA merely memorializes the service agreement between the subject firm and its customer. As such, it is not an article produced by the subject firm. Rather, the issuance of a LOA is merely incidental to the service provided by the subject firm.

It is the Department's policy that something which is created incidental to the provision of a service is not an “article” for purposes of the Trade Act. The Department's policy that those workers who provide services are not engaged in the production of an article for the purposes of the Act, even if something (tangible or intangible) is generated in the provision of those services, has been upheld by the U.S. Court of International Trade (USCIT) in Former Employees of Mortgage Guaranty Insurance Corporation v. United States Secretary of Labor, Court No. 07-00182. In its August 13, 2008, opinion, the USCIT stated “the Trade Act does not provide for the eligibility of workers engaged in the provision of services.”

After careful review of the request for reconsideration, the Department determines that there is no new information that supports a finding that Section 222 of the Trade Act of 1974 was satisfied and that no mistake or misinterpretation of the facts or of the law with regards to the number or proportion of workers separated from the subject firm during the relevant period.

Conclusion

After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decision. Accordingly, the application is denied.

Signed at Washington, DC, this 10th day of October 2008.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.