Implementation of Sections 3(n) and 332 of the Communications ActRegulatory Treatment of Mobile Services

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]

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