FCC Seeks Comment on Reform of Rules Governing the Cellular Service and Other Public Mobile Services

AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule.

SUMMARY:

In this document, the Federal Communications Commission (Commission) proposes and seeks comment on reforms of its rules governing the 800 MHz Cellular (Cellular) Service and other Public Mobile Services. Specifically, the Commission proposes to eliminate four rules that impose requirements on licensees in these services concerning station inspections, records retention and production, operators at station control points, and the filing of certain employment reports. The Commission believes that the existing requirements may disadvantage the affected licensees, as compared to licensees of other wireless spectrum bands, or may no longer be necessary in today's digital age, or for which the benefits may no longer outweigh the costs and burdens of compliance. The Commission also seeks comment on whether other measures could be taken to give Public Mobile Services licensees more flexibility and administrative relief, and on ways to consolidate and simplify its rules, not only for the Cellular Service, but also other geographically licensed wireless services. In this regard, the Commission considers a possible relocation of rules governing certain flexibly licensed wireless services.

DATES:

Submit comments on or before May 15, 2017 and reply comments on or before June 13, 2017.

ADDRESSES:

Interested parties may submit comments, identified by WT Docket No. 12-40, by any of the following methods:

• Federal Communications Commission's Web site: http://apps.fcc.gov/ecfs/. Follow the instructions for submitting comments.
• Mail: All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.
• People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: FCC504@fcc.gov or phone: 202-418-0530 or TTY: 202-418-0432.

For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

Nina Shafran, Mobility Division, Wireless Telecommunications Bureau, (202) 418-2781, TTY (202) 418-7233, or nina.shafran@fcc.gov .

SUPPLEMENTARY INFORMATION:

This is a synopsis of the Commission's Second Further Notice of Proposed Rulemaking (Second FNPRM) in WT Docket No. 12-40, FCC 17-27, adopted March 23, 2017, and released March 24, 2017. The full text of the Second FNPRM, including Appendices, is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street SW., Room CY-A157, Washington, DC 20554, or by downloading the text from the Commission's Web site at https://apps.fcc.gov/edocs_public/attachmatch/FCC-17-27A1.pdf.

Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to FCC504@fcc.gov or calling the Consumer and Government Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Comment Filing Instructions

Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. All filings related to the Second FNPRM should refer to WT Docket No. 12-40. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).

• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.
• Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. Parties should only file in WT Docket No. 12-40. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.

People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

Synopsis

I. Introduction and Background

1. In this Second Further Notice of Proposed Rulemaking in WT Docket No. 12-40 (Second FNPRM), the Commission proposes and seeks comment on reforms of its rules governing the 800 MHz Cellular (Cellular) Service and other public mobile services, as explained in detail in the sections below. These reforms would build on those that were adopted in the Report and Order in WT Docket No. 12-40, adopted November 7, 2014 and released November 10, 2014 (FCC 14-181) (2014 Report and Order), and on the reforms adopted in the Second Report and Order in WT Docket No. 12-40 and the companion Report and Order in WT Docket No. 10-112, adopted on March 23, 2017 and released on March 24, 2017 (FCC 17-27). In making its proposals in this Second FNPRM, the Commission draws in part on certain comments submitted in response to the Further Notice of Proposed Rulemaking in WT Docket No. 12-40 (FNPRM), adopted November 7, 2014 and released November 10, 2014 (FCC 14-181), and on certain comments submitted in response to a public notice inviting comment on the Commission's 2016 Biennial Review of Telecommunications Regulations, WT Docket Nos. 16-138 et al., released November 3, 2016 (FCC 16-149) (2016 Biennial Review Public Notice).

2. Specifically, commenters identify as ripe for elimination 47 CFR 22.301, 22.303, and 22.325, which provide for retention and inspection of certain paper records at each station's control point, and on-duty personnel at control points responsible for station operation. Verizon also highlights 47 CFR 22.321(c), requiring the filing of annual Equal Employment Opportunity (EEO) complaint reports with the Commission. Each of these rules was adopted more than twenty years ago, when the Commission revised Part 22 in its entirety with the goal of making the rules better organized and easier to understand and use. As discussed below, the Commission now proposes to eliminate these four rules and invites comment on the effects of doing so, including the potential impact of repealing these rules not just for Cellular licensees, but for all Part 22 licensees—i.e., Paging, Air-Ground, Rural Radiotelephone, and Offshore Radiotelephone licensees.

3. More generally, in this Second FNPRM, the Commission seeks comment on any other measures that could help ensure flexibility and consistency in licensing across wireless spectrum bands, while taking into account the unique features of each service. In addition, the Commission seeks comment on possibly relocating certain of its rules, including the Part 22 Cellular Service and Part 24 broadband Personal Communications Services (PCS) rules, to Part 27. In addition to enhancing licensees' flexibility and promoting consistent treatment across wireless spectrum bands, the Commission's goals include eliminating unnecessary regulatory burdens on licensees, allowing them to use their resources more efficiently to provide services to consumers.

II. Proposed Rule Revisions and Other Possible Reforms

A. 47 CFR 22.301, 22.303—Station Inspection, Retention of Station Authorizations

4. Section 22.301 of the Commission's rules, 47 CFR 22.301, requires that, “[u]pon reasonable request, the licensee of any station authorized in the Public Mobile Services must make the station and station records available for inspection by authorized representatives of the Commission at any reasonable hour.” Section 22.303 of the Commission's rules (47 CFR 22.303) more broadly requires Part 22 licensees to retain, among other documentation, the authorization for each station as a permanent part of station records. Specifically, section 22.303 states that:

“The current authorization for each station, together with current administrative and technical information concerning modifications to facilities pursuant to § 1.929 of this chapter, and added facilities pursuant to § 22.165 must be retained as a permanent part of the station records. A clearly legible photocopy of the authorization must be available at each regularly attended control point of the station, or in lieu of this photocopy, licensees may instead make available at each regularly attended control point the address or location where the licensee's current authorization and other records may be found.”

No similar rules exist for commercial licensees governed by Part 24 of the Commission's rules, nor for licensees governed by the Part 27 rules. In its comments in response to the FNPRM, Verizon argues that Cellular licensees should not be required to retain and post information about license authorizations, calling this requirement “burdensome, outdated and unnecessary.” Verizon notes that, because the Commission does not send copies of licenses when minor modifications are granted, licensees “have to periodically take inventory of their licenses and print copies of licenses once applications are granted to ensure they have the current license in the file.” It argues that this administrative burden is unjustified given that the Commission's Wireless Telecommunications Bureau now maintains official authorizations in its Universal Licensing System (ULS). CTIA echoes these concerns, and more broadly supports elimination of rules that “inhibit Cellular licensees from benefitting from the same level of flexibility as is available in other CMRS spectrum bands.” In comments filed in response to the 2016 Biennial Review Public Notice, CTIA and T-Mobile reiterate arguments for eliminating sections 22.301 and 22.303. CTIA again stresses that there is no justification for asymmetry across different wireless services, particularly when electronic licensing renders these requirements unnecessary.

5. Both sections 22.301 and 22.303, 47 CFR 22.301 and 22.303, collectively require hard copies of license authorizations and other records to be maintained for each station and made available for inspection upon request. The Commission proposes to eliminate each of these provisions in their entirety from the rules and seeks comment on this proposal. As mentioned above, no similar rules exist for Part 24 or Part 27 licensees, and the Commission questions whether the benefit of maintaining hard copies outweighs the costs and burdens to Part 22 licensees in the age of electronic licensing and recordkeeping. When these rules were adopted in 1994, maintaining hard copies in files for inspection at a station control point may have made sense. But today, the justification for continuing to require this paperwork burden seems to have significantly diminished if not disappeared entirely, particularly given that license authorizations are maintained in ULS. The Commission seeks comment on these assumptions. Is there any reason that warrants licensees continuing to maintain hard copies of records at each station's control point? Are there any other relevant records that are maintained at a station's control point but are not readily available electronically? In response to the 2016 Biennial Review Public Notice, Public Knowledge has suggested that, even if sections 22.301 and 22.303 are eliminated, the Commission should nonetheless affirmatively require Part 22 licensees “to have electronic copies [of licenses] easily accessible to personnel and FCC inspectors.” The Commission seeks comment on Public Knowledge's suggestion and whether such a requirement would be necessary.

6. Section 22.301 requires that the station itself, not just the station's records, be available for inspection by the Commission. There is no corollary requirement in Parts 24 or 27. The Commission emphasizes that, regardless of whether it retains a rule in Part 22 explicitly requiring licensees to make their stations available for inspection, it retains general station inspection authority under section 303(n) of the Communications Act of 1934, as amended. Similarly, section 22.303 of the Commission's rules requires “administrative and technical information concerning modifications to facilities . . . and added facilities” to be retained in the stations' records. Is there a need to keep that portion of the rule? Or do sections 1.929 and 22.165 of the Commission's rules (47 CFR 1.929 and 22.165)—which are cross-referenced in 47 CFR 22.303—render the reference to such materials in 47 CFR 22.303 unnecessary and duplicative? The Commission also seeks comment on whether this type of administrative and technical information is maintained by stations electronically.

B. 47 CFR 22.325, Control Points

7. Section 22.325 of the Commission's rules (47 CFR 22.325) requires that “[e]ach station in the Public Mobile Services [ ] have at least one control point and a person on duty who is responsible for station operation.” It specifies that “[t]his section does not require that the person on duty be at the control point or continuously monitor all transmissions of the station. However, the control point must have facilities that enable the person on duty to turn off the transmitters in the event of a malfunction.” CTIA argues that the requirement to designate a person who is responsible for the station and who has the ability to shut down service at any time “is unique to Part 22 and should be removed as another example of unnecessary, costly, and asymmetrical regulation.”

8. The Commission proposes to eliminate section 22.325 in its entirety from the Commission's rules and invites comment on this proposal. As with the rules discussed above, there is no similar rule in Part 24 or Part 27 of the Commission's rules related to station control points or requiring a person on duty who is responsible for station operation. The Commission seeks comment on the costs and burdens of having such an employee on duty. Do automatic and remote monitoring render this rule unnecessary from a technological standpoint? Section 22.325 requires each Part 22 licensee's station to have at least one control point. Is it necessary to retain that part of the rule? Is the control point requirement duplicative of other Part 22 rules, or unnecessary given the way stations are operated and monitored today? The Commission seeks comment on any information relevant to the proposed elimination of this requirement from Part 22 of the rules.

C. Section 22.321(c), Equal Employment Opportunity Complaint Report

9. Section 22.321(c) of the Commission's rules (47 CFR 22.321(c)) requires all Part 22 licensees to submit an annual report to the Commission indicating whether any Equal Employment Opportunity (EEO) complaints have been filed at the federal, state, or local level against the licensee. For any such complaint, the report must state the parties involved, date of filing, court or agencies reviewing the complaint, appropriate file number, and disposition of the complaint. As with the other Part 22 rules discussed above in this Second FNPRM, there is no similar requirement for Part 24 and Part 27 licensees. However, all common carriers must comply with a similar requirement in section 1.815 of the Commission's rules (47 CFR 1.815). That section requires that “[e]ach common carrier licensee or permittee with 16 or more full time employees [ ] file with the Commission . . . an annual employment report” on FCC Form 395. Form 395 requires carriers to check a box if EEO complaints have been filed, and to attach to Form 395 the same information about the complaints that is required under section 22.321(c). In comments filed in response to the 2016 Biennial Review Public Notice, Verizon asks the Commission to repeal section 22.321(c), arguing that other regulated entities required to file Form 395 do not have to file a separate “charge report” akin to that required under section 22.321(c).

10. The Commission proposes to eliminate section 22.321(c) from the Commission's rules. For all practical purposes, this rule appears duplicative of the requirement to complete FCC Form 395 under section 1.815—a rule that applies broadly to all common carriers, including licensees subject to Part 22 of the rules. The Commission seeks comment on this proposal, and on whether there is any need to retain a separate requirement related to reporting of EEO complaints for Part 22 licensees in addition to what is already required of common carriers on FCC Form 395 pursuant to section 1.815.

D. Other Measures To Increase Flexibility for Cellular Licensees

11. In addition to the proposed rule eliminations discussed above, the Commission invites comment more broadly on other steps or measures it could take to ensure that Cellular licensees benefit from the same level of flexibility available to other commercial wireless licensees. Are there other rules that commenters deem unnecessary that apply to Part 22 licensees but not to the flexibly licensed services under Part 24 or Part 27? Are there other Part 22 rules ripe for removal in light of changed technology, electronic licensing and recordkeeping, or other modernizations that have occurred over the past two decades? The Commission invites comment on anything else that could aid its efforts to bring Cellular licensing more in line with the flexible licensing approach used for other CMRS.

E. Possible Relocation of Rules to Part 27

12. The Commission seeks comment on whether its goal of providing, to the extent possible, the same flexibility in licensing across competing commercial wireless bands would be furthered by migrating the Part 22 Cellular Service and Part 24 PCS rules to Part 27. The Commission sought comment on this issue in a Notice of Proposed Rulemaking in WT Docket No. 12-40, adopted and released on February 15, 2012 (FCC 12-20) (2012 NPRM). The Commission now seeks to revisit the issue and refresh the record on the potential benefits and costs of such relocation in light of the rule changes made thus far in this proceeding.

13. In the 2012 NPRM, the Commission's proposal to bring the Cellular licensing rules more in line with the flexible rules that govern competing wireless services entailed issuing geographic-area (CMA-based) “overlay licenses” through competitive bidding in two stages. In connection with the overlay licensing proposal, the Commission invited comment regarding placement of the revised Cellular rules that might ultimately be adopted. Specifically, the Commission queried whether, in the event that it were to adopt a geographic-based regime that would include overlay licenses, the new Cellular rules should be incorporated into Part 27, which contains the rules for certain other flexibly licensed wireless services. The Commission also suggested that, if those Cellular Service rules were to be moved into Part 27, then the rules for PCS, which is also a flexibly licensed wireless service, should be moved from Part 24 into Part 27. It asked as well whether the Commission should initiate a separate rulemaking to revise the Part 27 rules and reserve the possible relocation of Cellular and PCS rules to that separate proceeding.

14. In response to the 2012 NPRM, the Rural Wireless Association, Inc. (RWA) objected to relocating any Part 22 rules to Part 27 at that time; it also contended that any consideration of relocating the Part 24 PCS rules was beyond the scope of that proceeding and should be addressed, if at all, in a separate rulemaking proceeding. No other commenter addressed this issue in response to the 2012 NPRM.

15. As noted in the 2014 Report and Order, commenters generally opposed the Commission's overlay licensing proposal. Based on the record, which included a subsequent proposal by an industry coalition to retain key elements of the site-based Cellular licensing model, the Commission adopted a geographic-based transition approach that preserves direct site-based access to Unserved Area while dramatically reducing licensees' regulatory burdens. In that context, and given the absence of express support in the record, the Commission decided not to relocate the Part 22, Subpart H Cellular Service rules to Part 27. Moreover, as the Commission's suggestion to relocate the Part 24 PCS rules was contingent on relocating the Part 22 Cellular rules, the Commission declined to pursue relocation of the PCS rules.

16. With adoption of revised and modernized Cellular rules thus far in WT Docket Nos. 12-40 and 10-112, greatly enhancing licensees' flexibility within their licensed geographic boundaries and eliminating numerous regulatory restrictions, the Commission believes it is timely to revisit the issue of relocating the Cellular-specific rules of Part 22, Subpart H, to Part 27. In addition, the Commission considers it timely to ask anew whether a new rulemaking should be initiated to revise the Part 27 rules and reserve the possible relocation of Cellular rules to that separate proceeding. The Commission's queries are explained further below.

17. The rules in Part 22 applicable to the Cellular Service include general rules on definitions, licensing, and technical matters that are applicable to all Part 22 services (Subparts A, B, and C), as well as the Cellular-specific rules in Subpart H. Some of the applicable rules correspond to similar rules in Part 27, while others reflect unique characteristics of Part 22 (including Cellular) licensees and have no corresponding rules in Part 27. For example, the revised Cellular licensing scheme is now largely geographically based but nonetheless includes site-based rules allowing carriers to continue to expand into Unserved Area, which exists primarily in rural areas in the western United States and Alaska. The particular rules governing the Cellular Service, including the revised licensing scheme addressed in Part 22's Subpart H, would need to be retained as separate provisions if all the Part 22 rules were migrated to Part 27. Would such relocation promote similar regulatory treatment for geographically licensed services and improve clarity for licensees? Or would such relocations—e.g., moving the Cellular build-out requirements into section 27.14, and the Cellular radiated power rules (as revised today) into section 27.50—result in less clarity for licensees? Further, if those Cellular Service rules are to be moved into Part 27, should the Commission also consider moving the rules for PCS from Part 24 into Part 27?

18. Commenters should also address whether the Commission should reorganize Part 27 in order to accommodate these additional Part 22 and Part 24 rules more efficiently. There are other geographically-licensed, auctioned services that are not included in Part 27, including Public Coast (Part 80), Specialized Mobile Radio (SMR), Location and Monitoring, and 220 MHz (Part 90), and 218-219 MHz (Part 95). Of these, only SMR is used today by wireless carriers to provide services directly to consumers nationwide. Should the Commission move the Part 22 Cellular and Part 24 PCS rules to Part 27 in conjunction with moving those other service rules to Part 27 as well?

19. The Commission seeks comment on all aspects of these possible approaches to relocation of the rules, including the optimal timing for them, and invites alternative ideas. It also seeks comment on the potential economic costs and benefits of the various possible approaches to rule placement.

III. Procedural Matters

A. Paperwork Reduction Act Analysis

20. The Second FNPRM seeks comment on potential revised information collection requirements. If the Commission adopts revised information collection requirements, the Commission will publish a notice in the Federal Register inviting the public to comment on the requirements, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501-3520). In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.

B. Initial Regulatory Flexibility Analysis

21. As required by the Regulatory Flexibility Act of 1980 (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules proposed in the Second FNPRM. The analysis is found in Appendix E in the full text of the Second FNPRM. The Commission requests written public comment on the analysis. Comments must be filed in accordance with the same deadlines as comments filed in response to the Second FNPRM, and must have a separate and distinct heading designating them as responses to the IRFA. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of this Second FNPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

C. Ex Parte Presentations

22. Permit-But-Disclose. The Commission will continue to treat this proceeding as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with 47 CFR 1.1206(b). In proceedings governed by 47 CFR 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the Commission's Electronic Comment Filing System (“ECFS”) available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

23. Availability of Documents. Comments, reply comments, and ex parte submissions will be publically available online via ECFS. Documents will generally be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. These documents will also be available for public inspection during regular business hours in the FCC Reference Information Center, which is located in Room CY-A257 at FCC Headquarters, 445 12th Street SW., Washington, DC 20554. The Reference Information Center is open to the public Monday through Thursday from 8:00 a.m. to 4:30 p.m. and Friday from 8:00 a.m. to 11:30 a.m.

D. Statutory Authority

24. This Second FNPRM is adopted pursuant to sections 1, 2, 4(i), 4(j), 7, 301, 303, 307, 308, 309, and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 157, 301, 303, 307, 308, 309, and 332.

List of Subjects in 47 CFR Part 22

• Communications common carriers
• Reporting and recordkeeping requirements

Proposed Rules

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 22 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, 222, 303, 309 and 332.

2. Remove and reserve § 22.301.

3. Remove and reserve § 22.303.

4. Section 22.321 is amended by removing paragraph (c), redesignating paragraphs (d) through (f) as paragraphs (c) through (e), and by revising the subject headings of newly redesignated paragraphs (c) through (e) to read as follows:

5. Remove and reserve § 22.325.