[Federal Register Volume 59, Number 103 (Tuesday, May 31, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13311]
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[Federal Register: May 31, 1994]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 20, 22, and 90
[GN Docket No. 93-252; FCC 94-100]
Implementation of Sections 3(n) and 332 of the Communications
Act--Regulatory Treatment of Mobile Services
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: The Commission has adopted a Further Notice of Proposed Rule
Making (Further Notice) in response to Congress mandate directing the
agency to implement sections 3(n) and 332 of the Communications Act of
1934 as amended by title VI, section 6002(b) of the Omnibus Budget
Reconciliation Act of 1993, Public Law 103-66, 107 Stat. 312, 392
(Budget Act). The intended effect of this Further Notice is to
implement this legislation by soliciting comment on conforming the
Commission's technical, operational, and licensing rules for commercial
mobile radio service providers, including rules for commercial mobile
radio service providers, including licensees in services formerly
classified as private.
DATES: Comments must be filed on or before June 20, 1994, and reply
comments must be filed on or before July 11, 1994.
ADDRESSES: Federal Communications Commission, 1919 M Street, NW.,
Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Private Radio Bureau Contacts: David
Furth or Kathleen O'Brien Ham, (202) 634-2443. Common Carrier Bureau
Contacts: Nancy Boocker (202) 632-6450, or Jay Jackson (202) 653-5560.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Further Notice of Proposed Rule Making, GN Docket No. 93-252, FCC 94-
100, adopted April 20, 1994, and released the May 20, 1994 (Further
Notice). The full text of the Notice is available for inspection and
copying during normal business hours in the FCC Public Reference
Center, Room 239 1919 M Street, NW., Washington, DC. The complete text
may be purchased from the Commission's copy contractor, International
Transcription Service, Inc., 2100 M St., NW., suite 140, Washington DC
20037, (202) 857-3800.
Summary of Notice of Proposed Rule Making
A. Introduction and Overview
1. On February 3, 1994, the Commission adopted a Second Report and
Order in this proceeding that implemented the basic provisions of
sections 3(n) and 332 of the Communications Act (the Act), as amended
by section 6002(b) of the Omnibus Budget Reconciliation Act of 1993.
Second Report and Order, Implementation of sections 3(n) and 332 of the
Communications Act. Regulatory Treatment of Mobile Services, GN Docket
No. 93-252, 9 FCC Red 1411, 59 FR 18493 (April 19, 1994) (Second Report
and Order). This Further Notice proposes further modifications to the
Commission's existing mobile services rules that are necessary to
complete the transition to the new regulatory regime envisioned by
Congress and establish regulatory symmetry in the regulation of mobile
services.
2. Specifically, the Further Notice addresses the impact of the
amended statute on technical, operational, and licensing rules for the
mobile services, and particularly on the rules affecting those former
private land mobile services that have been reclassified as
``commercial mobile'' radio services (CMRS) by the Second Report and
Order. As required by the Budget Act, the Commission proposes to amend
these rules to ensure that competitors in the mobile services
marketplace are subject to comparable regulatory requirements and that
inconsistencies in our regulation of substantially similar services are
eliminated. The Commission will act on these proposals by the August
10, 1994 deadline established by Congress for adoption of rules
implementing the statute.
B. Comparison of Reclassified Part 90 Services and ``Substantially
Similar'' Common Carrier Services
3. The statute directs the Commission to ensure that private land
mobile licensees who are reclassified as CMRs providers are subject to
technical requirements comparable to those that apply to providers of
``substantially similar'' common carrier services. Therefore, the
Further Notice first addresses to the issue of what is meant by
``substantially similar'' services for this purpose. Because one of the
principal goals of the Budget Act is regulatory parity within product
markets and geographic markets for services that compete with each
other, the Commission proposes to base the determination of substantial
similarity primarily on whether the CMRS providers in question compete
to meet similar customer demands for services.
4. The Commission seeks specific comment on the degree to which
Specialized Mobile Radio (SMR), 220-222 MHz service, Business Radio,
and private paging--the four categories of private land mobile service
potentially subject to reclassification as CMRS--are ``substantially
similar'' to any part 22 mobile service.
5. SMR: The Further Notice states that ``enhanced'' wide-area SMR
service and cellular service could be viewed as substantially similar,
but that traditional SMR service may be more analogous to traditional
common carrier radiotelephone service.
6. 220-222 MHz Service: The Commission states that it appears
unlikely that 220 MHz licensees would offer services similar to
cellular or broadband PCS, but seeks comment on whether 220 MHz service
could be competitive alternative to other existing common carrier
services or narrowband PCS.
7. Business Radio: The Commission seeks comment on whether CMRS
licensees on Business Radio channels should be considered to provide
service that is substantially similar to services provided by part 22
licensees, particularly in light of the fact that Business Radio
frequencies are licensed on a non-exclusive basis and therefore must be
shared by multiple licensees.
8. Paging: The Commission tentatively concludes that private and
common carrier paging should be deemed substantially similar for
statutory purposes. The Further Notice requests comment, however, on
whether private paging licensees using shared frequencies below 900 MHz
are in providing service competitive with common carrier paging
service.
C. Technical and Operational Rules
9. Next, the Further Notice seeks comment on how to ensure that
technical and operational rules for reclassified part 90 licensees and
carriers and other service providers offering substantially similar
common carrier services are ``comparable.'' The Commission proposes to
identify and eliminate those differences in existing technical and
operational rules that would otherwise result in inconsistent
regulation of substantially similar CMRS services. In those instances
where modification of existing technical and operational rules is
required, the Further Notice seeks comment on which of the following
alternatives would best promote competition and ensure regulatory
symmetry: (1) Extension of the part 22 rule to part 90 CMRS services;
(2) extension of the part 90 rule to part 22 services; or (3)
modification of both part 22 and part 90. The Future Notice also seeks
comment on the degree to which technical and operational rules for
existing mobile services should be conformed to technical and
operational rules for Personal Communications Service (PCS).
10. Channel Assignment and Service Area. The Commission seeks
comment on whether the channel assignment rules for 800 and 900 MHz SMR
should be revised to facilitate licensing on a wide-area, multi-channel
basis comparable to licensing of cellular and broadband PCS spectrum.
The Commission also seeks comment on how to ensure that rule revisions
intended to make wide-area SMR service more comparable to other wide-
area CMRS offerings do not adversely affect traditional SMR systems
designed primarily to provide dispatch service to small groups of
customers. The Further Notice states that a possible alternative in the
800 MHz band would be to implement optional wide-area licensing
procedures similar to the ``Expanded Mobile Service Provider'' (EMSP)
proposal set forth in the Commission's Notice of Proposed Rule Making
in PR Docket No. 93-144, 8 FCC Rcd 3950, 58 FR 33062 (June 15, 1993).
Because of recent licensing activity in this band, however, the Further
Notice seeks comment on whether sufficient spectrum is available to
support multi-channel licensing on an MTA-wide basis, or whether the
Commission's objectives could be more practically achieved by allowing
800 MHz licensees to establish and operate in self-defined service
areas. In the 900 MHz band, which is not heavily licensed, the
Commission seeks comment on whether to proceed with its ``900 MHz Phase
II'' proposal in PR Docket No. 89-553. See First Report and Order and
Further Notice of Proposed Rule Making, 8 FCC Rcd 1469, 58 FR 12176
(March 3, 1993).
11. The Commission also seeks comment on channel assignment and
service area definitions applicable to non-SMR Part 90 services subject
to reclassification as CMRS. The Commission notes that in Business
Radio and paging services where channels are shared, it could be
difficult to superimpose a system of exclusive channel assignments.
Commenters are asked whether the shared use of channels in such
services should be limited as a means of promoting competition. In the
case of 900 MHz paging, the Commission observes that the rules for
assigning common carrier and private paging frequencies are already
very similar, but seeks comment on whether additional conforming of the
rules is required. The Further Notice also asks commenters to address
whether future licensing of paging could be based on Commission-defined
service areas similar to those used in narrowband PCS. Finally, the
Commission seeks comment on whether 220 MHz systems should be licensed
on a regional as well as a local and nationwide basis.
12. Co-Channel Interference Criteria. The Commission seeks comment
on whether the statutory goal of comparable technical regulation for
substantially similar services requires revision of co-channel
interference criteria for any mobile service. Commenters are
specifically invited to provide information on the type and level of
potential costs to licensees that would result from modifying these
criteria. The Commission notes, however, that a cautious approach to
rule revisions in this area does not imply that no changes to co-
channel interference rules can be justified. For example, if the
Commission proceeds with proposals to establish wide-area SMR service,
the Further Notice seeks comment on whether wide-area licensees should
be subject to restrictions on co-channel station separation or
interference other than at the borders of their service areas.
13. Adjacent Channel Interference Criteria. To protect against
adjacent channel interference, most mobile radio services operates
under ``emission mask'' rules that restrict transmitter emissions on a
range of frequencies removed from the licensee's assigned frequency.
These rules typically vary depending upon the bandwidth and spacing of
channels in each particular service. The Further Notice seeks comment
on whether existing emission mask rules are consistent in their
application to substantially similar services. Because specific
emission limitations are dependent on such service-specific factors as
bandwidth, channel spacing, and the likelihood that different licensees
will operate on adjacent channels, the Commission notes that
substantial changes to these rules may not be necessary or practical.
14. Antenna Height and Transmitter Power Limits. The Commission
tentatively concludes that substantially similar mobile services should
operate under complete restrictions on antenna height and transmitter
power, but that height and power rules should also encourage technical
flexibility and allow licensees to serve diverse customer needs
wherever possible. For example, to the extent that wide-area SMR is
considered substantially similar to cellular service, it could be
argued that SMR licensees should be required to comply with power
limits comparable to those prescribed for cellular licensees. In the
case of traditional SMR service, which is not substantially similar to
cellular service, existing height and power limits for each service
should arguably be retained. A third alternative that could be applied
to wide-area SMR systems and cellular systems would be to limit station
power at the licensee's service area border, but give licensees greater
flexibility over station power within the interior portions of their
service areas. The Further Notice seeks comment on the feasibility and
practical effect of these alternatives.
15. The Commission also seeks comment on whether height and power
limits in other Part 90 services should be conformed to those of
substantially similar Part 22 services. The Commission observes that on
Part 90 lower band frequencies that are shared, it may not be practical
to adopt the typically higher power limits that apply to Public Land
Mobile Service licensees on exclusive channels. In the case of 220 MHz
service, which is licensed on an exclusive basis, the Commission seeks
comment on whether it is necessary to revise our 220 MHz height and
power rules and what the practical consequences would be of doing so.
The Commission observes that Part 90 and Part 22 power limits for 900
MHz paging systems are already highly similar, but seeks comment on
whether non-nationwide licensees at 929-930 MHz should be allowed to
operate at up to 3500 watts within their existing service areas, as
non-nationwide paging systems under Part 22 are currently allowed to
do.
16. The Further Notice also seeks comment on alternatives affecting
power limitations on mobile units. While Part 90 systems seeking to
compete with cellular are likely to use similar low-power technology to
provide lightweight and easily portable mobiles to the end user, users
of traditional Part 90 systems may continue to need higher-power
mobiles in order to obtain effective service. Aside from any action to
conform existing rules, however, the Further Notice states that all
mobiles must comply with power limits dictated by applicable radio
frequency radiation standards, regardless of the service in which they
are used. The Commission therefore proposes to apply the 1992 IEEE/ANSI
standard to all CMRS and PMRS mobiles, as proposed in the Notice of
Proposed Rule Making on this issue in ET Docket No. 93-62, 8 FCC Rcd
2849, 58 FR 19393 (April 8, 1993).
17. Modulation and Emission Requirements. The Further Notice seeks
comment on whether there should be any restriction on modulation or
emissions so long as licensees comply with other technical requirements
designed to guard against co-channel interference, adjacent channel
interference, and similar problems. While proposing to allow licensees
greater flexibility in this area, however, the Commission does not
propose to modify or eliminate the requirement that cellular licensees
provide analog service to customers with analog equipment. In addition,
the Further Notice tentatively concludes that where services operate on
shared frequencies, existing emission restrictions should be retained
in order to prevent incompatible uses.
18. Interoperability. The Commission seeks comment on whether Part
90 CMRS licensees should be subject to mandatory interoperability
requirements similar to those applicable to cellular licensees. For
example, if the Commission determines that wide-area SMR service is
substantially similar to cellular service, the Commission must then
decide whether to adopt rules ensuring that SMR customers have access
to compatible equipment and the ability to use that equipment on any
wide-area SMR system. The Further Notice asks commenters to address the
costs and benefits of the following options: (1) Requiring
interoperability among all classes of CMRS equipment; (2) requiring
interoperability of equipment used to provide the same type or class of
CMRS service; or (3) maintaining the status quo.
19. Construction Period and Coverage Requirements. The Further
Notice proposes a uniform ``baseline'' construction period of 12 months
for all CMRS licensees whose systems do not require an unusually long
time to construct. This approach would apply, inter alia, to
conventional and trunked SMR, paging, Business Radio, and local 220 MHz
systems. In addition, although such a step is not required to achieve
comparable regulation of CMRS, the Commission seeks comment on whether
the 12-month construction period should also be extended to PMRS
licensees under Part 90. The Commission further proposes to require
that licensees not only complete construction but also commence service
by the end of this period, which would be defined as providing service
to at least two third parties unaffiliated with the licensee.
20. With respect to Part 90 CMRS systems that require more than 12
months to construct (e.g., wide-area SMR), the Commission seeks comment
on whether to require licensees to apply for extended implementation or
adopt longer construction periods that apply automatically to such
systems. The Commission tentatively concludes that the 10-year
construction period (with interim benchmarks) is viable for licensing
of future 900 MHz SMR systems, but that a five-year build out period
may be more practical for 800 MHz licensing. The Commission also seeks
comment on whether to extend the construction period applicable to
wide-area paging systems.
21. Loading Requirements. The Further Notice seeks comment on the
degree to which loading standards should be used as a means of ensuring
efficient spectrum use by CMRS licensees. In general, Part 22 services
area not subject to loading requirements, and the Commission has
previously concluded in the case of PCS that coverage requirements and
construction timetables are sufficient to ensure efficient use of
spectrum. The Commission tentatively concludes that certain loading
requirements should also be eliminated or modified in the case of SMR
services. The Commission also seeks comment on whether alternatives to
loading should be adopted to protect against spectrum warehousing,
e.g., requiring that licensees construct and provide service on
existing channels before they can receive additional frequencies in the
same area.
22. User Eligibility. Because section 332(c)(1)(A) of the Act
subjects all CMRS providers to the requirements of sections 201 and
202, Part 90 licensees who are reclassified as CMRS must offer service
to the public on a nondiscriminatory basis. In light of the statute,
the Commission proposes to eliminate restrictions on user eligibility
for CMRS providers in Part 90 services so that CMRS licensees in Part
90 services may serve the public without restriction.
23. Permissible Uses. Although the rules of permissible uses of
Part 90 and Part 22 systems are similar in some respects (e.g.,
restrictions on fixed base-to-base communciations), some of these rules
appear to require modification to conform to the new regulatory
structure and ensure comparable regulatory treatment of similar
services. For example, the Commission tentatively proposes to eliminate
the prohibition on provision of common carrier service by Part 90
licensees as it applies to SMR, 220 MHz, Business Radio, and Part 90
paging services. The Commission also proposes to eliminate restrictions
on the purpose and duration of communications on Part 90 systems that
are not imposed on Part 22 licensees, except that some restrictions
would be retained in the case of systems on shared spectrum to assure
that all cochannel licensees have the maximum possible access to air
time.
24. Station Identification. Station identification rules are often
necessary to ensure that both the Commission and other spectrum users
can identify sources of interference. In some services, however, (e.g.,
cellular, 220 MHz nationwide service) licensees operating on exclusion
channel blocks are exempt from station identification requirements
because they can be readily identified by other means. The Commission
seeks comment on whether station identification requirements can be
eliminated in other services on similar grounds. In addition, where the
Commission determines that station identification continues to be
necessary, the Further Notice proposes to adopt a general rule that
CMRS licensees operating multiple station systems may use a single call
sign on a system-wide basis.
25. General Licensee Obligations. Both Part 22 and Part 90 contain
a variety of rules describing the general operational responsibilities
of the licensee, including rules on licensee management and control of
station facilities, posting of station licenses, station inspections,
and responses to official communications. Because these rules generally
appear similar, the Further Notice proposes to retain them with only
minor modifications to eliminate inconsistency and redundancy.
26. Equal Employment Opportunities. Under Part 22, all common
carrier licensees and permittees are subject to the Commission's equal
employment opportunity (EEO) rules. The Commission proposes to apply
these same EEO requirements to Part 90 CMRS licensees.
D. CMRS Spectrum Aggregation Limit
27. The Further Notice seeks comment on whether to adopt a cap on
the amount of CMRS spectrum that licensees may aggregate in a given
geographic area. Although restrictions have been adopted on aggregation
of spectrum in specific services, such as PCS, there is no general cap
on the amount of spectrum that an entity may use to provide CMRS. The
Commission is concerned that licensees with the ability to acquire
large amounts of CMRS spectrum in a given area could acquire excessive
market power by potentially reducing the numbers of competing
providers.
28. The Further Notice seeks comment on whether all CMRS services
should be treated as part of a single competitive product market or as
consisting of several discrete markets. If all CMRS services are part
of a single competitive product market, a spectrum cap applicable to
all CMRS could arguably guard against the excercise of undue market
power in this single market. Even if CMRS services do not constitute a
single market, a spectrum cap may be justified if a licensee with
sufficient spectrum in a sub-market could, as a result of its spectrum
holdings, excercise market power against other CMRS providers.
29. Assuming the Commission concludes that some form of CMRS
spectrum cap should be adopted, the Further Notice tentatively
concludes that the 40 MHz limit on broadband PCS aggregation provides a
reasonable basis for calculating a general CMRS cap, but that a CMRS
cap should also be adjusted upward slightly to allow reasonable
flexibility for PCS licensees and other existing mobile services
providers to provide both broadband and narrowband services. The
Further Notice also seeks comment on whether the cap should apply to:
(1) Services that are not competitive with each other, (2) narrowband
services, or (3) services licensed on a non-contiguous channel-by-
channel basis or on shared spectrum. Commenters are also asked to
address whether satellite licensees offering CMRS services should be
included in a CMRS spectrum cap.
30. Assuming that the Commission adopts a CMRS spectrum cap, the
Further Notice seeks comment on: (1) How to define the geographic
service areas in which the cap would apply, and (2) the percentage
ownership interest that an individual or entity should be allowed to
hold in a CMRS offering before it is attributed to that entity for
purposes of a spectrum cap. The Commission proposes to consider all
CMRS ownership interests of five percent as subject to a spectrum cap,
but seeks comment on the alternative of establishing different
attribution levels for specific CMRS offerings. The Commission also
proposes that a CMRS licensee serving 10 percent or more of the
population in a designated area should be subject to the spectrum cap
in that area for purposes of further licensing. Finally, the Commission
seeks comment on whether to apply different attribution standards for
designated entities, i.e., minorities and women, rural telcos, and
small businesses, to ensure their full participation in the developing
CMRS market.
E. Licensing Rules
31. Finally, the Further Notice addresses the issue of licensing
rules for CMRS applicants in those services that were formerly licensed
solely on a private basis. Specifically, the Commission proposes to
ensure that once reclassification becomes effective, all CMRS
applications are subject to uniform licensing procedures that comply
with the statutory requirements for licensing of common carriers under
Title III of the Act, including public notice procedures and alien
ownership restrictions. In addition, the Commission proposes a
transition mechanism for carrying out the reclassification of existing
private radio licensees that have been identified as CMRS providers by
the Second Report and Order but that are not subject to CMRS regulation
until the conclusion of the statutory transition period.
32. Application Forms and Procedures. The Commission proposes to
adopt a single unified application form that can be used by all CMRS
and PMRS applicants in all terrestrial mobile services. The proposed
form (tentatively designated as Form 600) would supersede both Form 401
and Form 574 in those services that currently use them. The form
consists of two-page main form and a series of supplemental schedules
designed for particular mobile service categories. The main form is
designed to provide the Commission with basic information regarding the
identity and qualifications of the applicant and the general nature of
the application. The proposed schedules seek additional administrative
and technical information in specific service categories.
33. The Commission proposes to use Form 600 to determine the
regulatory classification of all mobile services. The main form
requires each applicant to indicate the service category in which the
application is made and whether the proposed service meets the three
``prongs'' of the statutory definition of CMRS, i.e., whether the
applicant's service will be: (1) Provided for profit, (2)
interconnected to the public switched network, and (3) available to the
public. Based on the information provided, the Commission proposes to
classify each application as CMRS or PMRS for licensing purposes.
34. Qualifying Information. Under our proposed application
procedures discussed above, all CMRS applicants, including Part 90
applicants who request CMRS station classification, will be required to
disclose on Form 600 any ownership or control interest in the applicant
held by an alien. This disclosure is identical to the disclosure
currently required of Part 22 applicants. In addition, the proposed
form will require Part 90 CMRS applicants to disclose the same
information as Part 22 applicants relating to prior license denials or
revocations, felony convictions, and monopolization of radio services.
35. Fees. The Further Notice proposes to establish filing fees for
CMRS applicants in Part 90 services that are equivalent to the filing
fees already paid by Part 22 common carrier applicants. In addition,
the Budget Act has added a new section 9 to the Communications Act,
which authorizes the Commission to collect annual regulatory fees from
all Commission licensees to recover costs incurred in carrying out its
regulatory activities. The Further Notice proposes to require Part 90
CMRS licensees to pay the per-subscriber fee established pursuant to
the statute for common carriers instead of the per-license fee
established for private radio services.
36. Public Notice and Petition to Deny Procedures for CMRS
Applications. Section 309(b)(1) of the Act requires all applications
for common carrier station authorizations (other than minor amendments
excepted under section 309(c)) to be placed on public notice for 30
days prior to grant, and Section 309(d) allows petitions to deny to be
filed against such applications during the public notice period. To
implement these statutory requirements, the Commission proposes to
apply the public notice and petition to deny procedures currently set
forth in Part 22 to Part 90 applications for SMR, 220 MHz, Business
Radio, and paging licenses that are designated as CMRS.
37. Mutually Exclusive Applications/Competitive Bidding. Section
309(j) of the Communications Act authorizes the use of competitive
bidding to select among mutually exclusive initial applications in most
CMRS services. The Further Notice tentatively concludes that
competitive bidding procedures should generally be used to resolve
mutually exclusive CMRS applications where the Commission has the
authority to do so. This is not intended to preclude the use of first-
come, first-served procedures, short filing windows, and similar
procedures for avoiding mutual exclusivity where appropriate to promote
the public interest.
38. Based on this tentative conclusion, the Commission generally
proposes to continue the use of current filing window procedures in
Part 22 services, with some modifications, and to use competitive
bidding to select a tentative licensee where mutually exclusive initial
applications are filed. The Commission seeks further comment on whether
to adopt similar procedures for resolving mutually exclusive CMRS
applications in Part 90 services subject to reclassification, or
whether there are factors that may justify the use of different
procedures for some Part 90 services, either the Commission lacks
authority to use competitive bidding in the service or because amending
our procedures would otherwise not be in the public interest.
39. The Further Notice seeks specific comment on how this analysis
would apply to each Part 90 service that is subject to
reclassification. The Commission tentatively concludes that filing
windows and competitive bidding procedures should be used in future 900
MHz SMR licensing. In the 800 MHz band, the Commission seeks comment on
whether wide-area applications should be treated as modifications of
existing licenses that should not be subject to competitive bidding or
as initial applications that justify the use of filing windows and
competitive bidding procedures. With respect to 220 MHz service, the
Further Notice does not propose any changes to existing first-come,
first-served procedures, but seeks comment on whether alternative
procedures would allow reasonable opportunities for CMRS applications
to file competing applications without limiting the availability of
frequencies to potential PMRS applicants. Finally, the Commission will
defer the issue of mutually exclusive application procedures for 929-
930 MHz paging frequencies until after it has completed the pending
reconsideration of the Report and Order in PR Docket No. 93-35. See
Report and Order, 8 FCC Rcd 8318, 58 FR 62289 (November 26, 1993).
40. Amendment of Applications and License Modification. Under
Section 309 of the Communications Act, major amendments to CMRS
applications in Part 90 services must be placed on public notice and
are subject to petitions to deny in the same manner as initial
applications. For this purpose, the Commission proposes to apply the
same definitions of ``major'' and ``minor'' amendments to Part 90 CMRS
applications that are applicable to Part 22 applications. The
Commission also proposes to apply these same definitions to
applications to modify existing CMRS licenses in Part 90 services.
41. The Further Notice also seeks comment on whether the foregoing
definition of ``major'' filings should dictate whether auctions may be
used when an application to modify an existing CMRS license is mutually
exclusive with another application. Although the Commission has
previously concluded that competitive bidding generally should not be
used in the case of license modification applications (see Second
Report and Order, PP Docket No. 93-253, 59 FR 22980 (May 4, 1994), it
reserved the authority to treat a modification that would significantly
alter a licensee's existing authorization as equivalent to an initial
application for competitive bidding purposes. The Further Notice seeks
comment on whether ``major'' CMRS modifications that are treated as
initial applications for purposes of public notice and acceptance of
competing applications should be treated as initial applications for
competitive bidding purposes as well.
42. Conditional and Special Temporary Authority. Part 22 applicants
are generally prohibited from commencing construction or operations
prior to licensing, except that section 309(f) of the Communications
Act allows the Commission to grant a special temporary authorization
(STA) to a common carrier applicant under extraordinary circumstances.,
Part 90 applicants may commence construction at any time and are
subject to more liberal procedures for temporary operation. The Further
Notice proposes to apply the same rules for pre-grant construction and
operation to CMRS applicants under both Part 22 and Part 90. Because
Section 309(f) now applies to CMRS applications in Part 90 as well as
applications under Part 22, the Commission proposes to adopt procedures
in Part 90 that will subject STA requests by Part 90 CMRS applicants to
the same requirements that are applied to similar requests by Part 22
applicants.
43. License Term/Renewal Expectancy. The Commission proposes to
establish a uniform 10-year license term for all CMRS licensees,
including those in Part 90 services. The Commission also proposes to
extend its existing Part 22 rules and case law regarding renewal
expectancy to all Part 90 CMRS licensees. The Further Notice seeks
comment, however, on whether a single standard for granting a
preference to renewal applicants should be applied uniformly to all
CMRS services or whether alternative standards should be considered.
44. Assignment of Licenses and Transfer of Control. The Commission
proposes to allow assignment or transfer of most CMRS licenses upon
completion of construction and placing of the system in operation,
provided that the applicant can demonstrate that the assignment or
transfer will serve the public interest, convenience and necessity. The
Commission also seeks comment on whether CMRS licensees should be
allowed to assign or transfer unconstructed licenses under some
circumstances, e.g., where the transferor can demonstrate that the
transfer is not for purposes of speculation. The Commission also seeks
comment on whether disclosure and anti-trafficking rules recently
adopted for licenses awarded by competitive bidding and lottery justify
modifying our existing transfer and assignment restrictions.
45. Combined PMRS and CMRS Operation. In the Second Report and
Order, the Commission concluded that mobile service providers in Part
90 services where both CMRS and PMRS operation are allowed should have
the flexibility to provide both CMRS and PMRS offerings under a single
license. The Commission proposes that in such services, applicants
would be allowed to seek authority to provide both CMRS and PMRS
offerings under a single authorization. For licensing purposes, such
applications would be treated as CMRS applications subject to public
notice, petitions to deny, and the additional procedural requirements
for CMRS discussed above. In addition, the applicant would be required
to submit a showing with its application indicating what portion of the
assigned spectrum would be dedicated to PMRS and describing the
proposed PMRS offering in sufficient detail to demonstrate that it
falls outside the CMRS definition.
46. Conversion to CMRS Status by Existing Part 90 Licensees. In
addition to affecting licensing procedures for new applicants, the
reclassification of certain Part 90 services as CMRS changes the
regulatory status of a significant number of existing licensees. The
Commission proposes to identify all existing licensees in the SMR,
Business Radio, and 220 MHz services as CMRS or PMRS providers based on
whether the licensee's station classification authorizes for-profit,
interconnected service to be provided. Where the station classification
indicates that for-profit, interconnected service is being provided,
the Commission would modify the license to indicate CMRS status. Part
90 licensees bearing any other classification would continue to be
treated as PMRS authorizations. The Commission further proposes that
within 90 days after the date these proposed rules go into effect, Part
90 licensees may request changes to their station class designations to
reflect actual operations.
Initial Regulatory Flexibility Analysis
As required by Section 603 of the Regulatory Flexibility Act, the
Commission has prepared an Initial Regulatory Flexibility Analysis
(IRFA) of the expected impact of these proposed policies and rules on
small entities. Written public comments are requested on the IRFA.
A. Reason for Action
This rule making proceeding was initiated to secure comment on
various proposals for the implementation of sections 3(n) and 332 of
the Communications Act, 47 U.S.C. 153(n), 332, as amended by Title VI
of the Omnibus Budget Reconciliation Act (Budget Act). The proposals
advanced herein are designed to carry out Congress' intent to establish
regulatory symmetry in the regulation of mobile radio services.
B. Objectives
In the Budget Act, Congress directed the Commission to implement
sections 3(n) and 332, as amended. In accordance with this directive,
the Commission seeks to address the impact of the statute on technical,
operational, and licensing rules for all Commercial Mobile Radio
Services (CMRS) including those formerly private services that have
been reclassified as CMRS under the terms of the new legislation. The
revisions to the regulatory scheme proposed in this Further Notice are
intended to ensure equitable treatment of comparable mobile services
providers, which will in turn promote regulatory certainty and allow
for the enhanced provision of service to the public.
C. Legal Basis
The proposed action is authorized under the Omnibus Budget
Reconciliation Act of 1993, Pub. L. 103-66, Title VI, 6002(b), and
sections 3(n), 4(i), 303(r), 332(c), and 332(d) of the Communications
Act of 1934, 47 U.S.C. 153(n), 154(i) and 303(r), 332(c), and 332(d),
as amended.
D. Reporting, Recordkeeping, and Other Compliance Requirements
The proposals under consideration in this Further Notice may impose
certain new reporting and recordkeeping requirements on mobile services
licensees whose regulatory status has changed from private to
commercial as a result of the new legislation.
E. Federal Rules Which Overlap, Duplicate, or Conflict With These Rules
None.
F. Description, Potential Impact, and Number of Small Entities Involved
Many small entities could be affected by the proposals contained in
the Further Notice. Depending on the final resolution of the issues,
regulations affecting the licensing, technical configuration, and
operations of numerous mobile services providers may be changed. The
full extent of these changes cannot be predicted until various other
issues raised in the proceeding have been resolved. After evaluating
the comments filed in response to the Further Notice, the Commission
will examine further the impact of all rule changes on small entities
and set forth its findings in the Final Regulatory Flexibility
Analysis.
G. Significant Alternatives Minimizing the Impact on Small Entities
Consistent with the Stated Objectives
The Further Notice solicits comment on a variety of alternatives.
Any additional significant alternatives presented in the comments will
also be considered.
H. IRFA Comments
The Commission requests written public comment on the foregoing
Initial Regulatory Flexibility Analysis. Comments must have a separate
and distinct heading designating them as responses to the IRFA and must
be filed by the deadlines specified in the summary above.
List of Subjects in 47 CFR Parts 20, 22, and 90
Mobile radio services, Radio.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 94-13311 Filed 5-27-94; 8:45 am]
BILLING CODE 6712-01-M
