[Federal Register Volume 60, Number 11 (Wednesday, January 18, 1995)]
[Rules and Regulations]
[Pages 3555-3557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1218]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 22
[CC Docket No. 92-115]
Public Mobile Services
agency: Federal Communications Commission.
action: Final rule; suspension of effectiveness.
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summary: On September 9, 1994, the Commission release a Report and
Order revising its Part 22 Rules governing the Public Mobile Services.
The instant Order responds to requests for stay of certain of these
rules, which went into effect on January 1, 1995. Specifically, the
Order suspends the effective date of certain Part 22 Rules affecting
the processing of 931 MHz paging applications, stays a new policy
prohibiting two different licensees from sharing the same transmitter,
and denies a request for stay of a new rule designed [[Page 3556]] to
prevent fraudulent use of cellular electronic serial numbers. The
intent of the foregoing suspension and stay is to achieve the
objectives of updating, streamlining, and expediting the procedures in
its licensing process without the subsequent consequences of delay and
operational, administrative burden on service providers and the
Commission.
effective date: December 30, 1994.
for further information contact: B.C. ``Jay'' Jackson, Jr., R. Barthen
Gorman, Commercial Radio Division; and David H. Siehl, Policy Division,
Wireless Telecommunications Bureau, (202) 418-1310.
supplementary information: This is a synopsis of the Commission's Order
in CC Docket No. 92-115, FCC 94-357, adopted December 30, 1994, and
released January 10, 1995.
The complete text of this Order is available for inspection and
copying during normal business hours in the FCC Dockets Branch (Room
230), 1919 M Street, NW., Washington, DC, and also may be purchased
from the Commission's copy contractor, International Transcription
Service, at (202) 857-3800, 2100 M Street, NW., Suite 140, Washington,
DC 20037.
Synopsis of Order
1. The Commission recently adopted a Report and Order in this
docket, completely revising Part 22 of its Rules and providing for the
new Rules to go into effect on January 1, 1995. Report and Order, CC
Docket No. 92-115, 9 FCC Rcd 6513 (1994), 59 FR 59502, Nov. 17, 1994
(Part 22 Order). The Commission has received stay requests from the
Personal Communications Industry Association (PCIA) and the Mobile and
Personal Communications 800 Section of the Telecommunications Industry
Association (TIA) with respect to the effective date of certain aspects
of the Part 22 Order. PCIA requests that the Commission stay
implementation of the Part 22 Order with respect to (1) new application
processing rules for 931 MHz paging, and (2) its policy prohibiting two
Part 22 licensees from sharing a single transmitter. TIA requests that
the Commission stay implementation of Section 22.919 of its Rules,
which conditions type-acceptance of new cellular telephone equipment on
use of electronic serial numbers (ESNs) that cannot be altered once
they are set by the manufacturer.
931 MHz Paging Rules
2. In the Part 22 Order, the Commission adopted new procedures for
processing of 931 MHz paging applications, based on frequency-specific
applications and use of competitive bidding to select licensees in the
event of mutually exclusive applications. The Commission further stated
that all 931 MHz applicants with applications pending at the time the
new rules went into effect would be given 60 days to amend their
applications in accordance with these procedures.
3. The Commission has decided not to address the merits of PCIA's
petition at this time, but instead will temporarily suspend
implementation of the new 931 MHz application procedures on its own
motion. This temporary suspension of the new procedures arises directly
from the discussion of 931 MHz paging in the Part 22 Order. In the Part
22 Order, the Commission observed that certain paging applications that
had previously been granted, denied, or dismissed under the old rules
remained before it in the form of petitions for reconsideration and
applications for review. The Commission concluded that these cases
should be decided, to the extent possible, under its existing paging
rules before the effective date of the new rules. The Commission
further stated that if all pending petitions relating to 931 MHz
applications were not acted upon by January 1,1995, it would stay the
effect of new Section 22.541 of our Rules concerning 931 MHz
applications and also stay the 60-day amendment procedure for all
pending 931 MHz applications until the cases were resolved by order.
4. The Commission has determined that additional time is required
to resolve certain of these cases, and it is, therefore, suspending
Section 22.541 of the Rules and the 60-day amendment procedure for
pending 931 MHz applications until further notice. This order also
suspends implementation of Section 22.131, which superseded Section
22.541 as of January 2, 1995, insofar as it affects 931 MHz paging
applications. See Third Report and Order. Implementation of Sections
3(n) and 332 of the Communications Act, Regulatory Treatment of Mobile
Services, GN Docket No. 93-252, FCC 94-212, adopted August 9, 1994,
released September 23, 1994; 59 FR 59945, Nov. 21, 1994. Consequently,
the Commission concludes that action on PCIA's request to stay the
effective date of the 931 MHz application processing rules is
unnecessary for the time being, and therefore, is deferring
consideration of PCIA's petition until further notice.
Sharing of Transmitters
5. In the Part 22 Order, the Commission stated that as a matter of
policy, it intended to prohibit two or more Part 22 licensees from
sharing a single transmitter. The concern in establishing this policy
was that shared use of the same transmitter by two different licensees
could raise questions regarding the control of and responsibility for
the transmitter. PCIA requests a stay of this policy on the grounds
that it is inconsistent with the past Commission practice and that
implementation of the policy would cause irreparable harm to existing
licensees and the public.
6. The Commission concludes that a stay is justified in this case,
because it has allowed dual licensing of Part 22 transmitters in the
past, and continues to allow dual licensing in the private services.
The Commission is concerned that reversing this policy with respect to
Part 22 services could result in inconsistent treatment of similar
services, in violation of the principle of regulatory parity. Among
other reasons, the Commission also concludes that a stay of the new
policy will not cause harm to other parties to the proceeding or the
public. Therefore, the Commission concludes that implementation of its
policy against dual licensing of transmitters should be stayed pending
reconsideration.
Cellular Electronic Serial Numbers
7. To combat the problem of cellular fraud, the Commission adopted
a new rule in the Part 22 Order requiring cellular telephone
manufacturers to install unalterable electronic serial numbers (ESNs)
in all new cellular telephone equipment for which type-acceptance is
sought after January 1, 1995. The new Sec. 22.919(c) of the Rules
provides that the ESN must be factory set and must not be ``alterable,
transferable, removable or otherwise able to be manipulated.'' The
purpose of this requirement is to prevent the reprogramming of cellular
telephones with unauthorized or ``cloned'' ESNs.
8. TIA requests a stay of Sec. 22.919(c), and argues that requiring
the use of unalterable or ``hardened'' ESNs will impose significant new
costs on manufacturers and will cause customer dissatisfaction by
preventing manufacturer's authorized agents from making routine repairs
and upgrades of cellular equipment in the field that involve changing
the ESN. TIA also contends that the requirement is effective in
combating fraud. The Cellular Telecommunications Industry Association
(CTIA) opposed TIA's motion for stay.
9. On review of the pleadings, the Commission concludes that TIA
has not met the legal standard for granting a [[Page 3557]] stay.
First, without prejudging a separate petition for reconsideration filed
by TIA, the Commission concludes that TIA has not shown that the
petition is likely to prevail on the merits. In particular, TIA's
argument that the Commission should adopt anti-fraud rules based on
authentication procedures does not require abandonment of ESN
protection rules; instead, if TIA's alternative methodology proves
effective, it offers a potentially complementary level of protection
against fraud rather than a substitute for ESN regulation.
10. Second, the Commission is not persuaded that either
manufacturers or cellular customers will be irreparably harmed if the
stay motion is not granted. The new ESN rule applies only to new
equipment receiving type acceptance after January 1, 1995. Thus,
manufacturers may continue to produce equipment under previous type-
acceptances without being required to install hardened ESNs. Finally,
the cost of allowing ESN ``cloning'' to go virtually unchecked is far
greater than the cost of implementing the new rule. The Commission
therefore concludes that TIA's motion for stay should be denied.
Ordering Clauses
11. Accordingly, it is ordered that the effective date of new
Section 22.541 of our Rules, the application of new Section 22.131 of
our Rules insofar as it applies to 931 MHz paging applications, and the
60-day amendment procedure for all pending 931 MHz paging applications
described in paragraph 98 of the Part 22 Order are stayed, effective as
of the adoption date of this Order, until further notice.
12. It is further ordered That action on the Petition for Partial
Stay filed by the Personal Communications Industry Association on
December 19, 1994, with respect to implementation of new 931 MHz
processing rules is deferred until future notice.
13. It is further ordered That the effective date of the policy
prohibiting two licensees from sharing a single transmitter, as
described in paragraph 71 of the Part 22 Order, is stayed, effective as
of the adoption date of this order, until further notice.
14. It is further ordered That the Motion for Stay filed by the
Mobile and Personal Communications 800 Section of the
Telecommunications Industry Association on December 19, 1994, is
denied.
List of Subjects in 47 CFR Part 22
Communications common carriers, Radio, Reporting and recordkeeping
requirements.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
For the reasons set forth in the preamble, 47 CFR part 22 is
amended as follows:
PART 22--PUBLIC MOBILE SERVICES
1. The authority citation for part 22 continues to read as follows:
Authority: 47 U.S.C. 154, 303, unless otherwise noted.
2. Section 22.541 is stayed until further notice.
[FR Doc. 95-1218 Filed 1-13-95; 8:45 am]
BILLING CODE 6712-01-M
