[Federal Register Volume 60, Number 231 (Friday, December 1, 1995)]
[Rules and Regulations]
[Pages 61662-61664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29089]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 90
[PR Docket No. 92-235, DA 95-2354]
Private Land Mobile Radio Services
AGENCY: Federal Communications Commission.
ACTION: Final rule; denial of requests for stay.
-----------------------------------------------------------------------
SUMMARY: On June 15, 1995, the Commission adopted a Report and Order
which established technical rules and guidelines aimed at improving the
efficiency of the PLMR spectrum and facilitating the introduction of
advanced technologies into the private mobile services (60 FR 37152,
July 19, 1995). In addition, the Report and Order mandated the
consolidation of the Part 90 Private Land Mobile Radio (PLMR) services,
including the Public Safety Radio Services. The PLMR industry was given
three months from the effective date of the rules in the Report and
Order to develop and submit a comprehensive consolidation consensus
plan. The Report and Order stated that the industry report on radio
service consolidation would be required to be submitted on November 20,
1995. The Public Safety Communications Council, the Association of
Public-Safety Communications Officials-International, Inc., the
International Municipal Signal Association, and the International
Association of Fire Chiefs request that the Commission stay
consolidation of the Part 90 Public Safety Radio Services until such
time as the charter of the Public Safety Wireless Advisory Committee
(Advisory Committee) has expired and the Commission has had the
opportunity to review and consider the recommendations of the Advisory
Committee. Included in the work of the Advisory Committee is the
examination of the definition, structure, functions, and ways to
enhance telecommunications for the existing Public Safety Radio
Services. According to its Charter, the Advisory Committee report is
due by September 11, 1996. This order denies the requests for stay as
the Petitioners do not meet the standards required for grant of a stay.
Specifically, Petitioners have failed to make the required showing of
irreparable harm as both the Advisory Committee and the Commission
would benefit by the submission of proposals or comments as to how best
to accomplish the consolidation of the radio services. Second,
Petitioners' requests for stay will harm other Public Safety Radio
Services parties and non-public safety radio services as it will remove
a specific class of land mobile services from the consolidation
planning process and unnecessarily delay and detrimentally affect the
PLMR community efforts to achieve more efficient and flexible spectrum
use. Finally, we find that a stay is contrary to the public interest
because the Commission should continue its efforts to examine and
discuss the range of issues facing public safety communications and a
failure to submit proposals and comments would delay efforts to
consolidate the radio services.
EFFECTIVE DATE: December 1, 1995.
FOR FURTHER INFORMATION CONTACT:
Sonia Greenaway of the Wireless Telecommunications Bureau at (202) 418-
0680.
SUPPLEMENTARY INFORMATION:
Adopted: November 20, 1995.
Released: November 20, 1995.
By the Deputy Chief, Wireless Telecommunications Bureau.
1. Introduction. On June 15, 1995, the Commission adopted a Report
and Order \1\ that, among other matters, mandated consolidation of the
Part 90 Private Land Mobile Radio (PLMR) services, including the Public
Safety Radio Services.\2\ The Public Safety Communications Council
(PSCC),\3\ the Association of Public-Safety Communications Officials-
International, Inc. (APCO), the International Municipal Signal
Association (IMSA), and the International Association of Fire Chiefs
(IAFC) request that the Commission stay consolidation of the Part 90
Public Safety Radio Services until such time as the charter of the
Public Safety Wireless Advisory Committee (Advisory Committee) has
expired and the Commission has had the opportunity to review and
consider the recommendations of the Advisory Committee.\4\ For the
reasons stated below, we deny the requests for stay.
\1\ Report and Order, PR Docket No. 92-235, FCC 95-255, 60 FR
37152 (July 19, 1995).
\2\ The Part 90 Public Safety Radio Services (subpart B) include
the Fire, Emergency Medical, Forestry-Conservation, Highway
Maintenance, Local Government and Police Radio Services, 47 CFR
subpart B.
\3\ We note that the Executive Committee members of the Council
include the Association of Public-Safety Communications Officials-
International, Inc. and the International Municipal Signal
Association/International Association of Fire Chiefs. PSCC also
seeks a stay with respect to the Subpart C Special Emergency Radio
Service.
\4\ Parties emphasize that this request for stay does not relate
to non-public safety radio services.
[[Page 61663]]
---------------------------------------------------------------------------
2. Background. The Report and Order established technical rules and
guidelines aimed at improving the efficiency of the PLMR spectrum and
facilitating the introduction of advanced technologies into the private
mobile services. In addition to the technical rules adopted, the
Commission concluded that the number of PLMR service pools should be
reduced and consolidated. The Commission decided that maintaining
twenty service pools is administratively burdensome and that
consolidating the PLMR services into 2-4 service pools would lead to
greater operational efficiency for users and promote more flexible use
of the spectrum.\5\ Instead of dictating a specific plan and structure
for the radio services under a consolidated system, the Commission
encouraged the PLMR community, including users, manufacturers, and
frequency coordinators, to submit a consensus plan that would reflect
the interests and needs of the community which in turn would assist the
Commission in consolidating the service pools. The PLMR industry was
given three months from the effective date of the rules in the Report
and Order to develop and submit a comprehensive consolidation consensus
plan. This industry report on radio service consolidation is due
November 20, 1995. The Commission stated in the Report and Order that
it would issue its final rule amendments on consolidation approximately
six months after the effective date of the Report and Order. Further,
if noted that consolidation of the PLMR services will incorporate the
PLMR community's recommendations if consensus is achieved but will
proceed regardless of the participation of the PLMR community.\6\
\5\ The twenty (20) PLMR services which are the focus of this
proceeding are the Public Safety Radio Services (Local Government,
Police, Fire, Highway Maintenance, Forestry-Conservation and
Emergency Medical) the Special Emergency Radio Service, the
Industrial Radio Services (Power, Petroleum, Forest Products, Video
Production, Relay Press, Special Industrial, Business,
Manufacturers, and Telephone Maintenance), and the Land
Transportation Radio Services (Motor Carrier, Railroad, Taxicab, and
Automobile Emergency).
\6\ Report and Order at para. 55.
---------------------------------------------------------------------------
3. Independently of this rulemaking, the National
Telecommunications and Information Administration (NTIA) and the
Commission have established the Advisory Committee to prepare a final
report to the NTIA and the Commission on operational, technical and
spectrum requirements of Federal, state and local public safety
entities through the year 2010. Included in the work of the Advisory
Committee is the examination of the definition, structure, and
functions of the existing Public Safety Radio Services. According to
its Charter, the Advisory Committee will submit a report to the
Commission within twelve months of the first formal meeting.\7\
\7\ The first formal meeting of the Advisory Committee was held
on September 11, 1995. The Advisory Committee report therefore is
due by September 11, 1996.
---------------------------------------------------------------------------
4. Contention of the Parties. Petitioners each present similar
reasons in support of their requests for stay of the Public Safety
Radio Service consolidation, including the filing of a proposal as to
how best to consolidate the services pursuant to the Commission's
Report and Order. Petitioners argue that it would be premature and
inappropriate for the Commission to require the filing of a consensus
plan and immediate consolidation of the existing Public Safety Radio
Services before the Advisory Committee has completed its work.\8\
According to PSCC ``[i]t would be needlessly expensive and burdensome
on all involved, including the Commission, for the Public Safety
services to implement changes * * * and then have to make significant
changes again at the conclusion of the (Advisory Committee's) studies
and recommendations.'' \9\ IMSA and IAFC further contend that they are
entitled to a stay under the four-prong test \10\ set forth in
Washington Metropolitan Transit Commission v. Holiday Tours, Inc., 559
F.2d 841 (D.C. Cir. 1977) (Holiday Tours).\11\ We will address each
applicable ``prong'' below.\12\
\8\ See, for example, APCO petition at 2, PSCC petition at 4,
and IMSA/IAFC petition at 2.
\9\ Public Safety Communication Council comments at 5.
\10\ Under this test, a party moving for a stay must show: (1) A
strong likelihood of prevailing on the merits; (2) irreparable harm;
(3) issuance of a stay will not harm others; and (4) that granting a
stay will serve the public interest. IMSA/IAFC note, however, that
its pleading addresses only three prongs of the test as there is no
underlying litigation and no issue with respect to prevailing on the
merits.
\11\ See also Virginia Petroleum Jobbers Ass'n v. Federal Power
Commission, 259 F.2d 921, 925 (D.C. Cir. 1958).
\12\ We do not herein address ``likelihood of prevailing on the
merits.'' This prong is inapposite because these petitions are not
filed in conjunction with a contested cause of action between
opposing parties.
---------------------------------------------------------------------------
5. Irreparable Harm. First, IMSA/IAFC contend that failure to allow
the Advisory Committee to do its job and provide crucial information
which would determine the best way to consolidate existing stations
could cause irreparable harm to new applicants as well as existing
licensees. They argue that a stay will allow the Commission sufficient
time to ensure that policies developed for the Public Safety Radio
Services maximize interoperability, efficiency and enhancement of
public safety telecommunications and minimize chances for interference
or mismanagement of these important services.\13\
\13\ IMSA/IAFC comments at 6.
---------------------------------------------------------------------------
6. A stay is an extraordinary remedy which the Commission grants
upon request in limited circumstances. Based on the factors presented
by the above parties, we conclude that Petitioners do not meet the
standards required for grant of a stay. Specifically, we find that
Petitioners have failed to make the required showing of irreparable
harm. To show irreparable harm, ``the injury must be both certain and
great; it must be actual and not theoretical.''\14\ We believe that
Petitioners overstate the impact of not granting their request.
\14\ Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir.
1985); In the Matter of Cincinnati Bell Telephone Company, Requests
for Stay of Orders Finding Violations of the Commission's Rate of
Return Prescriptions, 8 FCC Rcd 6709 (1993).
---------------------------------------------------------------------------
7. The Advisory Committee's work and recommendations will be an
important vehicle in the Commission's endeavor to ensure that public
safety communications are effective, efficient and respond to the
increasing demands placed on the public safety community. The
consolidation of services is but one of a myriad of issues that the
Advisory Committee may address within the extremely confined time frame
it is working under. The Advisory Committee will be meeting throughout
the coming months to examine issues and make recommendations. The
resolution of every issue does not necessarily await articulation in
the Advisory Committee's final report. Throughout the process, a number
of recommendations may emerge as consensus agreements or be acted upon
formally. Importantly, because of its time constraints, the Advisory
Committee itself would benefit by the submission of proposals or
comments as to how best to accomplish the consolidation of services.
Moreover, the Commission's review and analysis of consolidation
alternatives can commence while still affording the Advisory Committee
an opportunity to make a recommendation on the issue. Under these
circumstances, as both the Advisory Committee and the Commission would
benefit by the submission of proposals or views addressing the
consolidation of services, we find that Petitioners have failed to
[[Page 61664]]
make the required showing of if irreparable harm.\15\
\15\ ``The most important of [the] factors is irreparable harm,
without which other factors need not be considered.'' In the Matter
of Cincinnati Bell Telephone Company, Requests for Stay of Orders
Finding Violations of the Commission's Rate of Return Prescriptions,
8 FCC Rcd at 6710, note 23.
---------------------------------------------------------------------------
8. Harm to Others. Second, IMSA/IAFC allege that the stay will
benefit, not harm, other Public Safety Radio Service parties because
the Commission's grant of this request will aid in the establishment of
a fair and safe frequency coordination process, avoid the
implementation of a consolidation plan that conflicts with the intent
and direction of the Advisory Committee report, and avert the
disruption of dismembering and reconstructing the finalized
consolidation plan should the plan prove unworkable in light of the
Advisory Committee's recommendations.\16\ Further, IMSA/IAFC maintain
that non-public safety radio services will remain unaffected as this
request for stay does not relate to non-public safety radio services.
\16\ Comments of IMSA/IAFC at 7.
---------------------------------------------------------------------------
9. As we have stated, we are not faced with the circumstance of
proceeding in light of contrary recommendations of the Advisory
Committee. Those recommendations have not been formulated and in fact,
both the Advisory Committee and Commission would benefit by the
proposals and comments of industry of how best to accomplish the
consolidation of services. Significant potential for harm to others in
the PLMR community will accrue if we were to impose a stay in the
consolidation of the Public Safety Radio Services. In the Report and
Order, the Commission noted that it sought a consensus from all users
in the PLMR community in developing a consolidation plan. The
Commission recognized that this action represented a significant change
for all PLMR services. The Commission viewed consolidation as a unified
effort by the PLMR community to maximize the effective and efficient
operations of the private services. The Report and Order emphasized the
importance of developing a consolidation plan for all of the PLMR
services. A specific comprehensive consolidation plan must include
clear guidelines for the structure of the Public Safety Radio Services.
Should the public safety community not participate in discussions to
develop a consensus for consolidating the radio services, the PLMR
community efforts to achieve more efficient and flexible spectrum use
could be unnecessarily delayed and detrimentally affected. In short,
removing a specific class of land mobile services from the
consolidation planning process would significantly and adversely affect
the entire ``Refarming'' initiative.
10. Public Interest. Third, IMSA/IAFC argue that it is in the
public interest to use the Advisory Committee to its maximum potential,
and not to risk conflicting directives from the Advisory Committee and
the rulemaking proceeding concerning the consolidation of the Public
Safety Radio Services.\17\ Moreover, these parties state that the delay
resulting from this request will be minimal. Again, the Commission is
not at a point where it risks even a potential conflict with a
recommendation of the Advisory Committee. The Commission is committed
to a process that provides the Advisory Committee an opportunity to
examine the range of issues facing public safety communications. Our
pervading interest is that proposals and comments on the consolidation
of services be submitted so that the Commission can continue its
efforts in implementing the Refarming initiative, which includes the
benefit of any Advisory Committee recommendation addressing the
consolidation of services. A stay would likely delay these efforts and
be contrary to the public interest.
\17\ IMSA/IAFC comments at 8.
---------------------------------------------------------------------------
11. Conclusion. For these reasons, and pursuant to Sec. 1.43 of the
Commission's rules, the Requests for Stay filed by the Association of
Public-Safety Communications Officials-International, Inc., the
International Municipal Signal Association and the International
Association of Fire Chiefs, and the Public Safety Communications
Council are denied.
12. The deadline for filing a consensus plan for consolidation
remains November 20, 1995. We will consider, however, the views of the
petitioners and the Advisory Committee in conjunction with the
recommendations submitted November 20th, prior to issuing a final order
on consolidation of the PLMR services.
Federal Communications Commission.
Gerald P. Vaughan,
Deputy Chief, Wireless Telecommunications Bureau.
[FR Doc. 95-29089 Filed 11-30-95; 8:45 am]
BILLING CODE 6712-01-M
