00-25219. Wireless Radio Services; Compatibility with Enhanced 911 Emergency Calling Systems

AGENCY:

Federal Communications Commission.

ACTION:

Final rule; petitions for reconsideration.

SUMMARY:

The Commission, in this document makes adjustments to the deployment schedule that must be followed by wireless carriers that choose to implement enhanced 911 Phase II service using a handset-based technology. This document also defers the date for initial distribution of Automatic Location Identification (ALI)-capable handsets by seven months, adjusts the timetable for carriers to meet certain interim benchmarks for activating new ALI-capable handsets, defers the date by which a carrier must achieve full penetration of ALI-capable handsets by one year, modifies the manner in which the Commission defines full penetration, eliminates the separate handset phase-in schedule triggered by a request from a Public Safety Answering Point, and addresses several other issues regarding implementation of enhanced 911 Phase II. These actions are taken in response to petitions for reconsideration of the Third Report and Order in this proceeding.

DATES:

Effective November 1, 2000.

ADDRESSES:

A copy of any comments on the information collection contained herein should be submitted to Judy Boley, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to [e-mail].

FOR FURTHER INFORMATION CONTACT:

Dan Grosh, 202-418-1310. For further information concerning the information collection contained in this Fourth Memorandum Opinion and Order, contact Judy Boley, Federal Communications Commission, 202-418-0214, or via the Internet at [e-mail].

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Fourth Memorandum Opinion and Order (MO&O) in CC Docket No. 94-102; FCC 00-326, adopted August 24, 2000, and released September 8, 2000. The complete text of the MO&O and the Supplemental Final Regulatory Flexibility Analysis is available on the Commission's Internet site, at www.fcc.gov.,, and is also available for inspection and copying during normal business hours in the FCC Reference Information Center, Courtyard Level, 445 12th Street, SW., Washington, DC. The text may also be purchased from the Commission's copy contractor, International Transcription Services (ITS, Inc.), CY-B400, 445 12th Street, SW., Washington, DC.

The procedures regarding submission of waivers of the Phase II requirements contain information collection requirements that are not effective until approved by the Office of Management and Budget. Public comment on the information collections in the waiver requirements are due December 1, 2000, and comments by the Office of Management and Budget are due January 30, 2001. The Commission will publish a document in the Federal Register announcing OMB approval of these burdens.

Synopsis of the Fourth Memorandum Opinion and Order

1. In this MO&O, in response to petitions for reconsideration of the Third Report and Order in this proceeding (64 FR 60126, November 4, 1999), the Commission makes certain changes to its wireless enhanced 911 (E911) rules aimed at facilitating full compliance with those rules on a nationwide basis. This MO&O is particularly concerned with implementation of Phase II of the Commission's E911 program.

2. Specifically, the MO&O first makes adjustments to the deployment schedule that must be followed by wireless carriers that choose to implement E911 Phase II service using a handset-based technology. While the Commission retains October 1, 2001, as the implementation date for E911 Phase II, it defers the date for initial distribution of Automatic Location Identification (ALI)-capable handsets by seven months, and adjusts the timetable for carriers to meet certain interim benchmarks for activating new ALI-capable handsets. In this regard, the MO&O extends from March 1, 2001, to October 1, 2001, the date for carriers to begin selling and activating ALI-capable handsets.

3. In taking these actions, the Commission disagrees with those petitioners who seek substantial delays in the handset deployment schedule, instead finding that the public interest and the public safety do not support a substantial delay in the current handset deployment schedule. Even if some major handset manufacturers prove unable or unwilling to produce ALI-capable handsets in the near future, the Commission believes that the public safety will be better served if carriers area required to deploy other available ALI solutions, including GPS handsets that may be available from other manufacturers, according to the timetable set in the MO&O. To allow the lengthy delay requested by some parties, the Commission finds, would jeopardize the progress made to date in the development of ALI solutions. These issues are discussed in more detail in paragraphs 24 through 30 of the full text of the MO&O.

4. While the Commission concludes that substantial changes in the current schedule are not justified, it does find good cause to make some changes in the handset schedule to allow a more realistic opportunity for deployment of handset-based solutions. Thus, the MO&O eliminates the separate phase-in schedule that is triggered by a Public Safety Answering Point (PSAP) request.

5. The MO&O next extends by seven months the date for initial distribution of ALI-capable handsets. The Commission believes that the current March 1, 2001, date may be difficult to meet and, as discussed in paragraph 33 of the full text of the MO&O, and revises the schedule to require that carriers employing a handset-based solution begin making ALI-capable handsets available for sale no later than October 1, 2001. Further, these initial handsets need not be the same types or brands as those that carriers plan to offer later in the year, or in future years.

6. Next the Commission adopts the following revised phase-in schedule:

• December 31, 2001: At least 25 percent of all new handsets activated are to be ALI-capable;
• June 30, 2002: 50 percent of all new handsets activated are to be ALI-capable;
• December 31, 2002, and thereafter: 100 percent of all new digital handsets activated are to be ALI-capable.

As is the case currently, this requirement applies only to the activation of newly-purchased handsets, not to handsets already in use. Consumers will continue to be able to use their existing phones, and to switch service to other carriers or to other operating areas.

7. Next, the Commission concludes that the final step in the current schedule for handset solutions should be modified in two respects. First, the MO&O extends the timeframe for carriers to reach full penetration of ALI-capable handsets by an additional year, by moving the deadline from December 31, 2004, to December 31, 2005. Second, the MO&O adopts a requirement that carriers achieve 95 percent penetration of ALI-capable handsets by the December 31, 2005, date, rather than that they employ “reasonable efforts” to achieve 100 percent penetration.

8. The MO&O, in paragraphs 42 through 45, considers the Commission's policy on waiver requests. Generally, the Commission's rule may be waived for good cause shown. Waiver is only appropriate, however, if special circumstances warrant a deviation from the general rule, and such a deviation will serve the public interest. In those particular cases where waivers may be justified, broad, generalized waivers should not be necessary and will not be granted. The Commission expects waiver requests to be specific, focused and limited in scope, and with a clear path to full compliance. Further, carriers should undertake concrete steps necessary to come as close as possible to full compliance, and should document their efforts aimed at compliance in support of any waiver requests. Carriers seeking a waiver will be expected to specify the solutions they considered and explain why none could be employed in a way that complied with the Phase II rules. If deployment is scheduled, but for some reason must be delayed, the carrier should specify the reason for the delay and provide a revised schedule. It is not sufficient for a carrier to undertake a minimalist approach, in which the carrier conducts certain tests, decides that the tests do not definitively demonstrate that the technologies tested will satisfy the Commission's requirements in all situations, and as a result, declines to implement any ALI solution. In view of the importance of the Commission's E911 rules to public safety, the Commission expects to take any steps necessary to ensure that carriers take their obligations seriously, including assessing appropriate penalties on carriers that fail to comply.

9. The MO&O considers a request for waiver from Sprint Spectrum, L.P. to permit implementation of a handset-based location technology. (Paragraphs 46 and 47.) Based on the present record, the Commission denies Sprint's petition for reconsideration and renewed request for a waiver to implement a hybrid solution, finding that Sprint has not adequately demonstrated that special circumstances exist that warrant a deviation from our rules, nor that grant of such a waiver would be in the public interest.

10. Paragraphs 51 through 68 of the MO&O discuss VoiceStream's request for waiver to permit implementation of a handset-based location technology. The Commission grants a waiver to VoiceStream to permit to employ an ALI solution that requires changes to both its network and handsets, subject to the following conditions and requirements. First, VoiceStream must implement a network safety solution that provides baseline location information for all wireless 911 calls no later than December 31, 2001. The accuracy requirement for this baseline location information is 1000 meters for 67 percent of calls. Second, by October 2, 2001, VoiceStream must ensure that 50 percent of all new handsets activated are Enhanced Observed Time Difference of Arrival (E-OTD)-capable. Third, effective October 1, 2001, VoiceStream must ensure that all E-OTD-capable handsets comply with an accuracy requirement of 100 meters for 67 percent of calls, 300 meters for 95 percent of calls. Fourth, VoiceStream must ensure that all new E-OTD-capable handsets activated on or after October 1, 2003, comply with an accuracy requirement of 50 meters for 67 percent of calls, 150 meters for 95 percent of calls. Fifth, within six months after a PSAP request, or October 1, 2001, whichever is later, VoiceStream must implement any network or infrastructure upgrades necessary to provide Phase II service, and begin providing Phase II location information. Sixth, VoiceStream must comply with the requirement to achieve 95 percent penetration of location-capable headsets among its subscribers no later than December 31, 2005. Seventh, VoiceStream must report the results of all trials and tests of its ALI technology and results semi-annually beginning October 1, 2000, and continuing through October 1, 2003. To the extent that VoiceStream cannot comply with any of these conditions, it will be expected to use another ALI methodology that comports with our requirements.

11. The MO&O, at paragraphs 69 through 74, denies a request for waiver seeking an extension of all Phase II deadlines for rural wireless carriers, filed by United States Cellular Corporation (USCC), finding that the request is insufficiently substantiated.

12. Paragraphs 75 through 81 of the MO&O grant a slight extension of the date upon which carriers must file their implementation plan reports from October 1, 2000, to November 9, 2000. Carriers may make good faith changes in their plans even after the report is filed, including changes in ALI technologies. These changes must be filed within thirty days of the adoption of any such change.

Paperwork Reduction Act of 1995 Analysis

13. The actions contained in this MO&O have been analyzed with respect to the Paperwork Reduction Act of 1995, and found to impose new reporting and recordkeeping requirements or burdens on the public. Implementation of these new reporting and recordkeeping requirements will be subject to approval by the Office of Management and Budget, as prescribed by the Act. The new paperwork requirement contained in the waiver section of this decision will go into effect January 30, 2001.

14. The deadline for carriers to file their implementation plans (OMB 3060-0910) is extended from October 1, 2000, to November 9, 2000.

Supplemental Final Regulatory Flexibility Analysis (SFRFA)

15. As required by the Regulatory Flexibility Act (RFA),^[1] an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in Appendix B II of the Further Notice of Proposed Rulemaking in this proceeding (FNPRM). A Final Regulatory Flexibility Analysis (FRFA) was incorporated in Appendix C of the Third Report and Order (Third R&O). Additionally, the Commission sought written public comment on the proposals in FNPRM, including comment on the IRFA. These comments were discussed in the FRFA. This Supplemental Final Regulatory Flexibility Act Analysis (SFRFA) considers the current Fourth Memorandum Opinion and Order (MO&O) and updates information contained in the FRFA. The present SFRFA, contained in Appendix C of the full text of the MO&O, conforms to the RFA.

Need for, and Objectives of, the MO&O

16. The MO&O is intended to provide wireless carriers, manufacturers, and the public safety community with additional clarity so that Phase II of the Commission's 911 effort can be deployed and operational on schedule, so far as possible. The MO&O supports the efforts of many entrepreneurs, public safety answering points, and companies who are working toward the technical and operational improvements needed to optimize 911 service and thus save lives.

Summary of Significant Issues Raised by Public Comments in Response to the FRFA

17. No comments were directed at the FRFA, and no comments were received from small entities that are not part of a larger organization. However, one reconsideration petition, filed jointly by handset manufacturers Nokia, Inc. and Motorola, Inc. contends that the rules adopted in the Third R&O set an overly aggressive deployment schedule for the introduction of handset-based Automatic Location Identification (ALI) technologies for which there is inadequate support in the record. Nokia, Motorola, and Ericsson ask that the Commission relax the handset deployment schedule substantially by only requiring carriers to begin selling and activating ALI-capable handsets 18 months after the date on which they have made their technology choices known to the FCC. (The discussion concerning these petitions and comments supporting Nokia, Motorola and Ericsson's arguments favoring a relaxed schedule may be found at paragraphs 12-14 of the MO&O.) Other parties raised concerns about the separate schedule for ALI-capable handset deployment triggered by a public service answering point (PSAP) request, noting the impracticality of such a schedule. (This contention is discussed in paragraph 15 of the MO&O.) Finally, in paragraph 16 of the MO&O, other parties maintain that the requirement in the current 911 rules that carriers employing handset-based solutions undertake reasonable efforts to achieve 100 percent usage of ALI-capable handsets by their customers by December 31, 2004, or two years after a PSAP request, is both overly demanding and vague.

Description and Estimate of the Number of Small Entities To Which Rules Will Apply

18. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (i) is independently owned and operated; (ii) is not dominant in its field of operation; and (iii) satisfies any additional criteria established by the Small Business Administration (SBA). A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 1992, there were approximately 275,801 small organizations. The Commission updates the figures reflected in the FRFA in the Third Report and MO&O.

19. Broadband Personal Communications Service (PCS). The broadband PCS spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. As stated in paragraph 11 of the FRFA, there is a total of 183 small entity PCS providers as defined the SBA and the Commission's auction's rules.

20. Narrowband PCS. The Commission has auctioned nationwide and regional licenses for narrowband PCS. There are 11 nationwide and 30 regional licensees for narrowband PCS. The Commission does not have sufficient information to determine whether any of these licensees are small businesses within the SBA-approved definition for radiotelephone companies. At present, there have been no auctions held for the major trading area (MTA) and basic trading area (BTA) narrowband PCS licenses. The Commission assume, for purposes of this SFRFA, that all of the licenses will be awarded to small entities, as that term is defined by the SBA, so, there may be as many as 3,519 small entities affected.

21. Specialized Mobile Radio (SMR). The Commission awards bidding credits in auctions for geographic area 800 MHz and 900 MHz SMR licenses to firms that had revenues of no more than $15 million in each of the three previous calendar years. In the context of 900 MHz SMR, this regulation defining “small entity” has been approved by the SBA; as has this regulation concerning 800 MHz SMR.

22. The rules in the MO&O apply to SMR providers in the 800 MHz and 900 MHz bands that hold CMRS licenses. We do not know how many firms provide 800 MHz or 900 MHz geographic area SMR service as CMRS operators, nor how many of these providers have annual revenues of no more than $15 million. The Commission assumes, for purposes of this SFRFA, that all of the remaining existing SMR authorizations are held by small entities, as that term is defined by the SBA. In the 900 MHz SMR band, there are 60 small or very small entities and there are 38 such entities in the 800 MHz band.

Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

23. In paragraphs 42 through 45, the MO&O discusses what should be included in successful waiver requests. All of the other changes adopted in this MO&O, are changes in the existing schedule rather than adding new burdens. The critical nature of improving nationwide wireless E911 services does not allow the Commission much flexibility to differentiate between large and small entities because a lapse in the provision of dependable, responsive 911 service by a small business can lead to the same catastrophic result as a lapse by a large entity. However, the Commission, in adopting the E911 improvement program, has tried wherever possible to consider the individual needs and situation of all involved parties. In this decision, the actual cost of the amendments to all entities is nominal.

Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

24. The RFA requires an agency to describe any significant alternative that it has considered in reaching its proposed approach, which may include the following four alternatives: (i) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (ii) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (iii) the use of performance, rather than design standards; and (iv) exemption from coverage.

25. First, the Commission declines to extend the implementation date for E911 Phase II beyond October 1, 2001, partially to avoid placing the burden for obtaining location information on PSAPs, already acting under constrained emergency conditions. This discussion is at paragraphs 24 through 30 of the MO&O. However, we do extend the date for initial distribution of ALI-capable handsets by seven months and we also adjust the timetable for carriers to meet certain interim benchmarks for activating new ALI-capable handsets. The alternative, to leave the schedules as is would be unfair to carriers, large and small. (Paragraph 33 of the MO&O contains this discussion.) At paragraphs 36-37 of the MO&O, we defer the date by which a carrier must achieve full penetration of ALI-capable handsets by one year, and modify the manner in which we define full penetration. Further, at paragraphs 31-32 of the MO&O, the Commission eliminates the separate handset deployment schedule for areas where PSAPs have requested deployment of Phase II. These actions should provide flexibility to all entities to comply with 911 requirements utilizing the most current and efficient technology, thus also ensuring the most responsive and dependable 911 system possible. Thus the Commission again chose not to stay with the current schedule. The alternatives in each case would have resulted in additional burden on all affected parties.

26. One alternative that the Commission considered and rejected concerned the petition by USCC that requests a six-month extension of all Phase II deadlines for rural wireless carriers. As discussed in paragraphs 69 through 74 of the MO&O, USCC contends that without such an extension, rural wireless carriers (often small entities) like USCC will be forced to begin spending millions of dollars to implement a network-based Phase II solution, because equipment manufacturers are unable at present to guarantee that they will provide a handset-based solution that satisfies the requirements and timetable. The Commission denies this request finding that even if some manufacturers cannot meet even the deadlines as revised in this MO&O, others may very well be able to provide ALI-capable handsets within the new timeframe. Also, the MO&O maintains that the expenses involved will come over a period of time and not all come due at once and that USCC's request is overly broad. Further, the MO&O finds that there are certain ALI solutions that are being offered on terms that do not require up-front investment by carriers. Further, the MO&O stresses that the Commission's denial of USCC's request does not foreclose future waiver requests from USCC or other carriers, including rural carriers.

27. Finally, it should be noted that the Commission's requirement that wireless carriers provide the location of wireless 911 callers has created a business opportunity for companies that are to develop and provide the technology to meet this obligation. It is expected that many location technology providers will qualify as small businesses.

28. Report to Congress: The Commission will send a copy of the MO&O, including this SFRFA, in a report to be sent to Congress pursuant to Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of the MO&O on Reconsideration and this SFRFA to the Chief Counsel for Advocacy of the Small Business Administration.

Ordering Clauses

29. Part 20 of the Commission's Rules is amended.

30. The rule amendments made by the MO&O shall become effective November 1, 2000, except for the new information collection regarding waivers, which will become effective January 30, 2001, pending OMB approval.

31. The Commission's Consumer Information Bureau, Reference Operations Division, shall send a copy of this MO&O, including the Supplemental Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

32. The petition for reconsideration filed by Nokia and Motorola is denied.

33. The petition for reconsideration filed by Sprint PCS is denied.

34. The petition for reconsideration filed by Aerial Communications, Inc., is denied.

35. VoiceStream Communications is granted a waiver of the E911 Phase II requirements, subject to conditions, to the extent indicated in the full text of the MO&O.

36. The request for extension of the E911 Phase II deadlines for rural carriers filed by United States Cellular Corp. is denied.

Paperwork Reduction Act

37. This MO&O contains a new information collection. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public to comment on the information collections contained in this MO&O as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due December 1, 2000. Comments should address: (a) Whether the new collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. In addition to the burdens included in this submission, this decision also slightly modifies the PRA submission contained in OMB No. 3060-0910 by extending the date by which carriers must submit to the Commission, their plans for implementing Phase II from October 1, 2000, to November 9, 2000.

OMB Approval Number:

Title: Revision of the Commission's Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, Fourth MO&O.

Form No. N.A.

Type of Review: New information collection.

Respondents: Business or other for profit.

Number of Respondents: 2,500.

Estimated Time Per Response: 3 hours.

Total Annual Burden: 7,500 hours.

Cost to Respondents: .0.

Needs and Uses: The information required to be included in a successful request for waiver of the E911 Phase II requirements will be used to assist the Commission in judging whether the request has merit.

List of Subjects in 47 CFR Part 20

• Communications common carrier
• Communications equipment
• Radio

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 20 as follows:

PART 20—COMMERCIAL MOBILE RADIO SERVICES

1. The authority citation for part 20 continues to read as follows:

Authority: 47 U.S.C. 154, 160, 251-254, 303, and 332 unless otherwise noted.

2. Section 20.18 is amended by revising paragraphs (g)(1), (g)(2), and (i) to read as follows:

§ 20.18

911 Service.

* * * * *

(g) Phase-in for Handset-based Location Technologies. Licensees subject to this section who employ a handset-based location technology may phase in deployment of Phase II enhanced 911 service, subject to the following requirements:

(1) Without respect to any PSAP request for deployment of Phase II 911 enhanced service, the licensee shall:

(i) Begin selling and activating location-capable handsets no later than October 1, 2001;

(ii) Ensure that at least 25 percent of all new handsets activated are location-capable no later than December 31, 2001;

(iii) Ensure that at least 50 percent of all new handsets activated are location-capable no later than June 30, 2002; and

(iv) Ensure that 100 percent of all new digital handsets activated are location-capable no later than December 31, 2002, and thereafter.

(v) By December 31, 2005, achieve 95 percent penetration of location-capable handsets among its subscribers.

(2) Once a PSAP request is received, the licensee shall, in the area served by the PSAP, within six months or by October 1, 2001, whichever is later:

(i) Install any hardware and/or software in the CMRS network and/or other fixed infrastructure, as needed, to enable the provision of Phase II enhanced 911 service; and

(ii) Begin delivering Phase II enhanced 911 service to the PSAP.

* * * * *

(i) Reports on Phase II plans. Licensees subject to this section shall report to the Commission their plans for implementing Phase II enhanced 911 service, including the location-determination technology they plan to employ and the procedure they intend to use to verify conformance with the Phase II accuracy requirements by November 9, 2000. Licensees are required to update these plans within thirty days of the adoption of any change. These reports and updates may be filed electronically in a manner to be designated by the Commission.

* * * * *

Footnotes

1.  See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et seq., has been amended by the Contract with America Advancement Act of 1996, Public Law 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).