Implementation of Sections 3(n) and 332 of the Communications ActRegulatory Treatment of Mobile Services
Federal RegisterNov 21, 1994
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1, 20, 22, 24, and 90
[GN Docket No. 93-252, PR Docket Numbers 93-144 and 89-553; FCC 94-212]
Implementation of Sections 3(n) and 332 of the Communications
Act--Regulatory Treatment of Mobile Services
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this rulemaking proceeding, the Commission completes the
initial implementation of sections 3(n) and 332 of the Communications
Act of 1934 (``Communications Act'' or ``Act''), as amended by section
6002(b) of the Omnibus Budget Reconciliation Act of 1993 (Budget Act).
As required by Congress, the Commission adopts changes to our
technical, operational, and licensing rules for common carrier and
private mobile radio services that are necessary to implement the
statute and to establish regulatory symmetry among similar mobile
services. The establishment of this regulatory framework also sets the
stage for the future evolution of mobile services. In this respect,
these rules changes mark an important step in the Commission's
continuing effort to enhance competition among mobile services
providers, promote the development of new and technologically
innovative service offerings, and ensure that consumer demand, not
regulatory decree, dictates the course of the mobile services
marketplace.
EFFECTIVE DATE: January 2, 1995.
FOR FURTHER INFORMATION CONTACT: Nancy Boocker (202) 418-1300 or David
Furth (202) 634-2443.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third
Report and Order in GN Docket No. 93-252, adopted August 9, 1994 and
released September 23, 1994. The full text of Commission decisions are
available for inspection and copying during normal business hours in
the FCC Docket Branch (Room 230), 1919 M Street, NW., Washington, DC.
The complete text of this decision may also be purchased from the
Commission's copy contractor, International Transcription Service,
Inc., (202) 857-3800, 2100 M Street, NW., Washington, DC 20037.
Paperwork Reduction
Public reporting burden for the collections of information is
estimated as follows:
------------------------------------------------------------------------
Estimated
average Estimated
Section/forms hours per annual
response responses
------------------------------------------------------------------------
20.6(e)........................................... .67 30
22.313............................................ 1 100
22.313(c)(1)\1\................................... .5 500
90.119............................................ 1 100
90.145............................................ 1 100
90.153............................................ 1 100
90.161............................................ 2 20
90.162............................................ 2 20
90.163............................................ 10 10
90.166............................................ 1 10
90.167............................................ 1 20
90.168(a)-(e)..................................... 2 100
90.168(f)\1\...................................... 52 100
90.425............................................ 1 100
90.449............................................ 1 100
90.607............................................ 2.5 144
90.631............................................ 1.5 45
90.633............................................ 1 15
------------------------------------------------------------------------
\1\Recordkeeping.
Total Annual Burden: 6923.
Frequency of Response: On occasion, annually.
These estimates include the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Send comments regarding the burden estimate or any other aspect of this
collection of information, including suggestions for reducing the
burden, to the Federal Communications Commission, Records Management
Branch, Paperwork Reduction Project, Washington, DC 20554 and to the
Office of Management and Budget Paperwork Reduction Project,
Washington, DC 20503.
Final Regulatory Flexibility Analysis
Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C.
section 604, a final regulatory flexibility analysis has been prepared
and is presented below. It is available for public viewing as part of
the full text of the decision, which may be obtained from the
Commission or its copy contractor.
Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C.
section 603, an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated into the Further Notice of Proposed Rule Making in GN
Docket No. 93-252. Written comments on the proposals in the Further
Notice, including the IRFA, were requested.
A. Need for and Purpose of Rules
This rule making proceeding was initiated to implement Sections
3(n) and 332 of the Communications Act of 1934, as amended. The
policies adopted herein will carry out Congressional intent to
establish a consistent regulatory framework for all commercial mobile
radio service (CMRS) providers. Specifically, this Order ensures that
CMRS providers who compete with one another will be subject to
comparable technical, operational, and licensing rules.
B. Issues Raised by the Public in Response to the Initial Analysis
No comments were submitted specifically in response to the Initial
Regulatory Flexibility Analysis.
C. Significant Alternatives Considered
The Further Notice of Proposed Rule Making in this proceeding
offered numerous proposals. The commenters supported the major tenets
of the proposed changes, and some commenters suggested changes to some
of the Commission's proposals. The regulatory burdens we have retained
for all CMRS licenses, including small entities, are necessary to carry
out our duties under the Communications Act of 1934, as amended. For
example, we have extended section 309 notice and comment procedures to
all CMRS applicants. We also minimized regulatory burdens, where
possible, for all CMRS licensees. For example, we adopt a unitary
application form for all mobile services applicants and eliminate most
end user eligibility requirements and restrictions on permissible uses
of CMRS systems. In addition, our proposal to impose a cap on the
amount of CMRS spectrum that licensees may aggregate in a given
geographic area was discussed by many commenters. We conclude that the
spectrum cap as proposed should not be adopted but, rather, that a more
specific cap on aggregation of PCS, cellular and SMR spectrum should be
adopted. A copy of the Report and Order shall be sent to the Chief
Counsel for Advocacy of the Small Business Administration.
Synopsis of the Third Report and Order
Last year, in the Budget Act, Congress created the CMRS regulatory
classification and mandated that similar commercial mobile radio
services be accorded similar regulatory treatment under the
Commission's Rules. The broad goal of this action is to ensure that
economic forces--not disparate regulatory burdens--shape the
development of the CMRS marketplace.
The Budget Act directs the Commission to take certain steps toward
that goal not later than August 9, 1994. These steps include revising
our rules to ensure the services reclassified as CMRS by the Budget Act
are ``subjected to technical [and operational] requirements that are
comparable to the technical requirements that apply to licensees that
are providers of substantially similar common carrier services.'' The
Commission also must adopt rules for licensing CMRS, including
reclassified services, pursuant to the radio common carrier licensing
provisions of the Act. Finally, the Budget Act mandates that the
Commission take appropriate steps to ensure an orderly transition to
the new CMRS regulatory structure.
On April 20, 1994, the Commission adopted a Further Notice of
Proposed Rule Making (Further Notice) 59 FR 28042 (May 31, 1994) to
address pending issues relating to the implementation of the statute.
In particular, the Commission sought to address the impact of the
amended statute on our technical, operational, and licensing rules for
all mobile services, and particularly on the rules affecting those Part
90 services that were reclassified as CMRS by the CMRS Second Report
and Order, 59 FR 18493 (April 19, 1994). As required by section
6002(d)(3) of the Budget Act, the Commission proposed to amend these
rules to the extent necessary to ensure that competing mobile services
would be subject to comparable regulatory requirements, and that
inconsistencies in our regulation of substantially similar services
would be eliminated to the extent practical. The Further Notice
indicated that the Commission would act on its proposals not later than
the August 9, 1994, deadline established by Congress for adoption of
rules implementing the statute. On May 19, 1994, the Commission revised
the Further Notice on its own motion to seek comment on the additional
issue of whether the amount of spectrum that CMRS licensees may
aggregate in a given geographic area should be limited. The Commission
received 61 comments and 70 reply comments in response to the Further
Notice.
In this Order the Commission takes four steps to implement both the
broad goal of the Budget Act and the more narrowly focused requirements
generated by its August 9, 1994, transition deadline. First, the Order
determines which reclassified services are ``substantially similar'' to
existing common carrier services in order to implement the Budget Act
requirement that such services be subject to ``comparable'' regulation.
Second, the Order revises part 90 and part 22 technical and operational
rules governing those services to ensure that the rules are, indeed,
``comparable.''
Third, to effectuate the broad congressional goal of ensuring that
competition shapes the development of the CMRS market, the Order adopts
rules that cap at 45 MHz the total amount of combined broadband
personal communications services (PCS), cellular, and Specialized
Mobile Radio (SMR) spectrum in which an entity may have an attributable
interest in any geographic area.
Fourth, to carry out Budget Act requirements concerning the
licensing of CMRS services, the Order adopts uniform rules for
licensing CMRS services, including reclassified services. The
Commission is also modifying its licensing rules for part 22 CMRS and
part 90 commercial services, where appropriate, to adopt filing windows
for the filing of competing initial applications and conclude that
competitive bidding procedures should be used to select from among
mutually exclusive applications. Moreover, as the Further Notice
tentatively concluded the Commission is taking the additional step of
adopting a single, uniform application form for use by all CMRS and
PMRS applicants in all terrestrial mobile services.
Summarized in the following section are the principal decisions the
Commission is adopting in connection with each of the four actions
taken in this Order. Before doing so, it is important to note that
while all the rules adopted in this Order become effective on January
2, 1995, some of those rules do not apply immediately to the
reclassified CMRS entities that will continue to be treated as private
carriers under the grandfathering provisions of the Budget Act.
Specifically, until the grandfathered period ends on August 9, 1996,
with regard to existing licensees, such entities will not be subject to
technical, operational, or licensing rule changes made in this Order
that apply exclusively to CMRS. Instead, they will be subject to
regulation as private carriers under part 90 of our rules.
Grandfathered carriers should note, however, that they are governed by
modifications to rules the Commission makes in this Order that are
applicable to private carriers.
1. Substantially Similar Services
This Order establishes the framework for implementing the mandate
of the Budget Act that the Commission revise its rules to the extent
necessary and practical to ensure that providers of reclassified CMRS
services are subjected to technical and operational rules comparable to
those that apply to providers of substantially similar common carrier
services. To that end, the Commission's initial task was to identify
reclassified CMRS services that are ``substantially similar'' to common
carrier services.
The goals of the Budget Act serve as the Commission's guidepost for
this task: (1) To create a level regulatory playing field for CMRS; (2)
to establish an appropriate level of regulation for the administration
of CMRS; (3) to resolve ``substantial similarity'' issues with a view
toward ensuring that unwarranted regulatory burdens are not imposed on
reclassified CMRS providers; and (4) to promote the economic goals
discussed in the CMRS Second Report and Order, including fostering
economic growth, promoting investment in mobile telecommunications
infrastructure, and enabling access to the national information
superhighway.
Based on these goals, the Order concludes that the appropriate
analytical framework for determining whether services are substantially
similar is to assess whether licensees in those services actually or
potentially compete to meet the needs and demands of consumers. The
Order concludes that all reclassified private mobile radio services
actually compete, or have the potential to compete within a reasonable
time period, with existing commercial mobile radio services. In other
words, the Commission concludes that all CMRS--including one-way
messaging and data, and two-way voice, messaging, and data--are
competing services or have the reasonable potential to become competing
services in the CMRS marketplace. Thus, on the basis of this
competitive analysis, the Order finds that all reclassified private
services are substantially similar to existing commercial services, for
purposes of section 332 of the Communications Act.
This broad reading of the term ``substantially similar'' furthers
the statutory purposes of promoting uniformity in CMRS regulation and,
thereby, minimizes the potentially distorting effects of asymmetrical
regulation. This reasoning also comports with the Commission's analysis
of current and likely future competition in the CMRS marketplace.
Actual competition among certain CMRS services exists already and, more
importantly, the potential for competition among all CMRS services
appears likely to increase over time due to expanding consumer demand
and technological innovation. Such conditions argue for defining the
class of ``substantially similar'' services expansively, at least for
the limited purpose of establishing baseline technical and operational
rules.
It is worth emphasizing the determinative relationship between the
forward-looking policy goals embodied in the rule comparability
requirement of the Budget Act and the Commission's assessment of
competitive trends in the CMRS marketplace. Thus, this Order begins
with the conclusion that mobile services will be treated as
substantially similar if they compete against each other. Next, the
Commission has chosen to take an expansive view of the present
condition of competition among services in the CMRS marketplace, and of
the potential for competition among these services in the future,
because such a view maximizes the range of services that can be
considered to be substantially similar. This in turn leads the
Commission to conclude that, to the extent practical, technical and
operational rules should be comparable for virtually all existing and
reclassified CMRS services. This conclusion furthers the Commission's
policy objective of ensuring a level regulatory playing field for CMRS.
The Order notes, however, that an analysis performed in the context of
a different set of policy goals, or application of the same policy
goals to different circumstances, may result in different conclusions
regarding the extent of competition.
2. Comparable Technical and Operational Rules
The determination that actual and potential competition among CMRS
services makes them ``substantially similar'' for purposes of Budget
Act analysis carries over into the assessment of technical and
operational rules. The Order concludes that differences between rules
governing actually or potentially competitive services should be
conformed if the Commission determines that the differences distort
competition by placing unequal regulatory burdens on different classes
of CMRS providers. Such conformity between rules will not be imposed,
however, if the Commission determines that, although the relative
burdens imposed by the rules may not be identical, the cost of
conforming the rules outweighs the benefit that might be gained
thereby. Pursuant to this analytical framework, the principal
determinations are as follows:
a. Service Area and Channel Assignment Rules
800 MHz SMR: The Order adopts the principle that 800 MHz SMR
systems should be licensed on a Major Trading Area (MTA) basis to the
extent feasible, but defers for further comment the specifics of
licensing such systems to ensure that the interests of both existing
licensees and potential entrants are taken into account. The Commission
will shortly issue a further notice of proposed rule making in our 800
MHz docket (PR Docket No. 93-144) regarding: (1) Designating 200
contiguous SMR channels for MTA licensing based on 50-channel blocks;
(2) continuing to license the remaining 80 SMR channels under existing
rules; and (3) allowing incumbents to continue operating on existing
channels. The Order declines to adopt a proposal by Nextel that certain
800 MHz incumbents be subject to mandatory returning to new
frequencies, but the Commission will seek further comment on this
issue. The Order further concludes that both existing SMR licensees and
new entrants will be eligible for MTA licenses, with licensees to be
selected by auctionin the event of mutually exclusive applications.
Finally, the Order concludes that in light of the fundamental changes
to be implemented in 800 MHz licensing, the Commission is suspending
the acceptance of all new 800 MHz SMR applications, as of August 9,
1994.
900 MHz SMR: The Order adopts MTA-based licensing of all 200
channels in blocks of 10 channels. The Order concludes that eligibility
for MTA licenses will be open to existing licensees and new entrants,
with competitive bidding to be used in the event of mutually exclusive
applications. Incumbent licensees who do not obtain MTA licenses will
be entitled to continue operating under existing authorizations.
220 MHz Commercial Service: The Order concludes that service area
definitions and channel assignment rules applicable to licensing of 220
MHz systems should not be changed at this time. The Commission will
address such issues in a separate, future rule making proceeding.
Private Carrier Paging: The Order adopts no conformance changes to
existing part 90 and part 22 paging rules in this docket. The
Commission will defer further action until it examines the question of
wide-area licensing and whether further conforming of Commission rules
is feasible.
b. Other Technical and Operational Rules
The Order concludes that no fundamental changes should be made to
existing rules regulating co-channel interference, adjacent channel
interference, or antenna height and transmitter power.
The Order concludes that all CMRS and PMRS mobiles and portables
shall be subject to the 1992 ANSI/IEEE Radio Frequency (RF) exposure
guidelines. The Order further concludes that this decision will be
implemented in the proceeding in which the Commission is conducting a
complete review of RF exposure guidelines, ET Docket No. 93-62.
The Order concludes that new interoperability requirements will not
be adopted for CMRS equipment at this time, but the Commission will be
retaining the existing interoperability rule applicable with regard to
cellular service. The Commission intends to explore the question of
interoperability requirements for CMRS equipment in a future inquiry.
The Order adopts a uniform 12-month construction requirement for
all CMRS licensees, except in instances in which the rules specify a
longer period for systems of greater size or complexity. The Order
eliminates loading requirements for CMRS, except that incumbent 900 MHz
SMR licensees must meet current requirements for retaining channels at
renewal. In addition, the Order adopts rules allowing a multi-station
CMRS system to use a single call sign for station identification
purposes.
The Order eliminates existing user eligibility restrictions that
prevent SMR, private carrier paging, Business Radio, and commercial
2209 MHz licensees from providing service to foreign governments and
their representatives. The Commission also eliminates eligibility
restrictions that prevent Business Radio licensees from providing
service to individuals. The Order also eliminates the part 90
restriction on common carrier communications for reclassified CMRS
services. Finally, the Order applies existing Equal Employment
Opportunity requirements to all CMRS licensees.
3. Spectrum Aggregation Limit
This Order addresses the issue of imposing a cap on the amount of
CMRS spectrum a licensee may aggregate in a given geographic area as a
means of preventing potentially anticompetitive aggregation of CMRS
spectrum. The Commission concludes that to preserve competitive
opportunities in the CMRS marketplace, it is unnecessary to establish,
in addition to existing CMRS spectrum aggregations limitations, the
broad CMRS spectrum cap proposed in the Further Notice. Rather, the
Order concludes that the Commission's goals will be achieved by capping
at 45 MHz the total amount of PCS, cellular, and SMR spectrum in which
an entity may have an attributable interest in any geographic area. The
Order adopts this cap as a minimally intrusive means of ensuring that
the mobile communications marketplace remains competitive and retains
incentives for efficiency and innovation.
The Order also reaches the following determinations with regard to
implementation of the spectrum cap. First, the Order concludes that
various encumbrances on SMR spectrum vis-a-vis cellular or broadband
PCS should be accounted for when measuring SMR spectrum for purposes of
the cap. Therefore, the Commission will attribute to an entity a
maximum of 10 MHz of SMR spectrum, including both 800 and 900 MHz
spectrum for purposes of determining compliance.
Second, the Order adopts a 20 percent cross ownership attribution
rules for licensees other than designated entities. Thus, when an
entity other than a designated entity has a 20 percent or greater
ownership interest in an SMR, cellular, or PCS license in a particular
geographic area, the entire amount of spectrum associated with that
license will be attributed to that entity for spectrum cap purposes.
For designated entities, the attribution level will be a 40 percent or
greater ownership interest.
Third, to compute an SMR spectrum total in a given market, the
licensee must identify all attributable 800 MHs and 900 MHz SMR base
stations located inside the MTA or BTA. All 800 MHz and 900 MHz
channels located on at least one of those base stations count as 50 kHz
and 25 kHz, respectively. This total can be reduced using a 10 percent
population overlap test similar to that used for the current cellular-
PCS spectrum cap.
4. Licensing Rules and Procedures
Section 332 of the Act, as amended by the Budget Act, provides that
CMRS providers are to be ``treated as common carriers for purposes of
(the) Act.'' The Order concludes that this means, among other things,
that all CMRS applications must comply with common carrier licensing
procedures enumerated in Title III of the Act. Thus, the Order adopts
rules that implement those procedures with regard to existing licensees
and future applicants on SMR, Business Radio, 220 MHz, and Part 90
paging frequencies who provide or propose to provide service that meets
the CMRS definition.
In particular, the following presents a partial list of measures
the Commission is adopting to ensure that CMRS applications under part
90 comply with the statutory requirements for licensing of common
carriers under Title III of the Act, as well as to streamline and unify
processing of all CMRS and PMRS applications.
Application Forms and Procedures--The Order adopts a single unified
application form (Form 600) for all CMRS and PMRS applicants in all
terrestrial services. Form 600 will also be used to determine the
regulatory classification of an applicant.
Qualifying Information--All parties to a CMRS application will be
required to comply with the alien ownership restrictions of section
310(b) of the Act and must also disclose whether: (1) Any party has had
a Commission license or permit revoked; (2) any party has been found by
a court to have monopolized radio communication; or (3) any party has
been convicted of a felony.
Application Fees and Regulatory Fees--Currently, application fees
can only be changed by Congress. Therefore, the existing application
fee schedule will continue to govern fee requirements. If, however,
Congress acts to extend to the Commission authority to modify the fee
schedules, we will address the question of altering our regulatory fees
at that time.
Public Notice and Petition To Deny Procedures--The Order adopts
rules that apply the public notice and petition to deny procedures
currently contained in part 22 to all CMRS applicants. In addition to
applications for initial licenses, these procedures will extend to
applications for major modifications and for assignments and transfers
of part 90 CMRS licenses.
Mutually Exclusive Applications and Competitive Bidding--The Order
Adopts rule changes that will generally result in using 30-day notice
and cut-off procedures and competitive bidding to select among mutually
exclusive initial CMRS applications in part 22 services (except for
Phase I cellular unserved area applications), 900 MHz SMR service, and
800 MHz SMR service. For Phase I cellular applications the Order adopts
a one-day filing window, concluding that such a window is sufficient
because there is a date certain on which applications for unserved
areas are permitted to be filed. The Order adopts no changes to
application procedures for 929-930 MHz paging in Part 90, but notes
that some procedural changes are likely to be considered in the future.
Amendment of Applications and License Modification--The Order
adopts rule changes that conform part 22 and part 90 definitions for
initial applications and major and minor amendments and modifications,
to the extent practicable. Modification applications will be accepted
for filing on a first-come, first-served basis.
Conditional and Special Temporary Authority--The Order concludes
that the waiting period for pre-grant construction for part 22 CMRS
should be reduced from 90 to 35 days, and we establish a 35-day waiting
period for all CMRS. The Order also determines that section 309(f) of
the Act prohibits pre-grant operation under special temporary authority
(STA) except in those cases in which the applicant establishes that
there are ``extraordinary circumstances'' where a delay in operations
would seriously prejudice the public interest.
Ordering Clauses
Accordingly, it is ordered that the rule changes made, as specified
below, will become effective January 2, 1995, pursuant to sections
4(i), 4(j), 7(a), 302, 303(c), 303(f), 303(g), 303(r), 332(c), and
332(d) of the Communications Act of 1934 as amended, 47 U.S.C. 154(i),
154(j), 157(a), 302, 303(c), 303(f), 303(g), 303(r), 332(c), and
332(d).
It is further ordered that the acceptance of 800 MHz applications
on the 280 SMR category channels is suspended, effective August 9,
1994, except that applications for transfer or assignment of existing
SMR facilities will continue to be accepted.
It is further ordered that authority is delegated to the Chief,
Common Carrier Bureau, as specified herein, to develop a new form or
modify existing forms for licenses or applicants to certify and/or
provide information showing that they are in compliance with the
spectrum aggregation limit adopted in this Order.
It is further ordered that the Secretary shall send a copy of this
Report and Order to the Chief Counsel for Advocacy of the Small
Business Administration.
It is further ordered that the motion to accept late-filed comments
filed by E.F. Johnson Company is granted.
It is further ordered that the Request for Declaratory Ruling and
Request for Rule Waiver filed by SunCom Mobile & Data is denied.
It is further ordered that the Petition for Rule Making filed by
the American Mobile Telecommunications Association, RM-8387, is
dismissed as moot.
It is further ordered that the Emergency Petition to Dismiss
Comments and Reply Comments of the American Mobile Telecommunications
Association, filed by Range Corporation d/b/a Range Telecommunications,
is denied.
List of Subjects
47 CFR Part 1
Administrative practice and procedure.
47 CFR Part 20
Commercial mobile radio services.
47 CFR Part 22
Public mobile services, Radio.
47 CFR Part 24
Personal communications services.
47 CFR Part 90
Private land mobile services, Radio.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Amendments
47 CFR parts 1, 20, 22, 24, and 90 are amended as follows:
PART 1--PRACTICE AND PROCEDURE
1. The authority citation for part 1 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 503(b)(5); 5 U.S.C. 552; 31
U.S.C. 853a, unless otherwise noted.
Sec. 1.823 [Amended]
2. Section 1.823 is amended by removing and reserving paragraph
(b)(2).
3. Section 1.901 is revised to read as follows:
Sec. 1.901 Scope.
In the case of any conflict between the rules set forth in this
subpart and the rules set forth in part 13 of this chapter or the rules
set forth for specific services in parts 80 through 97 of this chapter
(other than rules relating to Commercial Mobile Radio Services
contained in part 90 of this chapter), the rules in this subpart shall
govern. In the case of any conflict between the rules set forth in this
subpart and the rules relating to Commercial Mobile Radio Services set
forth in part 20 of this chapter or in part 90 of this chapter, the
rules in part 20 or part 90 of this chapter shall govern.
4. Section 1.922 is revised to read as follows:
Sec. 1.922 Forms to be used.
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FCC form Title
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175 Application To Participate in an FCC Auction.
175-S Supplemental Application To Participate in an FCC Auction.
402 Application for Microwave Station Authorization in the
Safety and Special Radio Services.
402-10 Instructions for Completion of FCC Form 402.
402-A Annual Report of Licensees of Microwave and Other Fixed
Stations When Such Facilities Are Used Cooperatively With
Other Persons.
402-R Renewal Notice and Certification in the Private Operational-
Fixed Microwave Radio Services.
404 Application for Aircraft Radio Station License.
404-A Temporary Aircraft Radio Station Operating Authority.
405-A Application for Renewal of Station License.
405-B License Expiration Notice and/or Renewal Application.
406 Application for Ground Station Authorization in the Aviation
Services.
410 Registration of Canadian Radio Station Licensee and
Application for Permit to Operate.
410-B Application for Permit To Operate a Canadian General Radio
Station in the United States.
452-R Application for Renewal of Coast and Ground Services.
480 Application for Civil Air Patrol Radio Station
Authorization.
490 Application for Assignment or Transfer of Control.
503 Application for Land Radio Station License in the Maritime
Services.
506 Application for Ship Radio Station License.
506-A Temporary Operating Authority, Ship Radio Station License
and Restricted Radiotelephone Operator Permit.
525 Application for Disaster Communications Radio Station
Construction Permit and License.
572 Temporary Permit To Operate a Business Radio Station.
572C Conditional Temporary Authorization To Operate a part 90
Radio Station.
574 Application for Radio Station Authorization in the General
Mobile Radio Services.
574-R Application for Renewal of Radio Station License.
574-T Temporary Permit To Operate a General Mobile Radio Service
System.
577 Temporary Permit To Operate a Part 90 Radio Station.
600 Application for Mobile Radio Service Authorization.
610 Application for Amateur Radio Station and/or Operator
License.
610-A Application for Alien Amateur Radio Licensee for Permit To
Operate in the United States.
610-B Application for Amateur Club, Military Recreation, or Radio
Amateur Civil Emergency Service Station License.
660-B Interim Amateur Permit.
602 Application for Consent to Assignment of Radio Station
Construction Permit or License (For Stations in Services
Other Than Broadcast).
703 Application for Consent To Transfer of Control of
Corporation Holding Construction Permit or Station License
(For Station in Services Other Than Broadcast).
714 Supplement to Application for New or Modified Radio Station
Authorization (Concerning Antenna Structure Notification to
FAA).
820 Application for Exemption from Ship Radio Station
Requirements.
845 Amateur Code Credit Certificate.
1046 Assignment of Authorization.
------------------------------------------------------------------------
5. Section 1.924 is amended by revising the heading in paragraph
(b)(2)(i) and paragraph (b)(2)(vi) and by adding a new paragraph
(b)(2)(vii) to read as follows:
Sec. 1.924 Assignment or transfer of control; voluntary or
involuntary.
* * * * *
(b) * * *
(2) * * *
(i) FCC Form 600. * * *
(vi) FCC Form 703. For consent to transfer control of a corporation
holding any type of part 90 license except a license to provide
commercial mobile radio service.
(vii) FCC Form 490. For consent to transfer control of a
corporation holding a part 90 license to provide commercial mobile
radio service.
* * * * *
6. Section 1.925 is amended by revising the first sentence of
paragraph (g) and (h) to read as follows:
Sec. 1.925 Application for special temporary authorization, temporary
permit, or temporary operating authority.
* * * * *
(g) An applicant for a Business Radio Station license (other than
an applicant who seeks to provide commercial mobile radio service as
defined in part 20 of this chapter) utilizing an already authorized
facility may operate the station for a period of 180 days, under a
temporary permit, evidenced by a properly executed certification made
on FCC Form 572, after the mailing of a formal application for station
license together with evidence of frequency coordination, if required,
to the Commission. * * *
(h) An applicant for a radio station license under part 90, subpart
S, of this chapter (other than an applicant who seeks to provide
commercial mobile radio service as defined in part 20 of this chapter)
to utilize an already existing Specialized Mobile Radio System (SMRS)
facility or to utilize an already licensed transmitter may operate the
radio station for a period of up to 180 days, under a temporary permit,
evidenced by a properly executed certification of FCC Form 572 after
the mailing of a formal application for station license, provided that
the antenna employed by the control station is a maximum of 20 feet
(6.1 meters) above a man-made structure (other than an antenna tower)
to which it is affixed.
* * * * *
Sec. 1.1105 [Amended]
7. Section 1.1105 is amended by revising the entries in the table
from 2. through 5.n. to read as follows:
----------------------------------------------------------------------------------------------------------------
Action FCC form No. Fee amount Fee type code Address
----------------------------------------------------------------------------------------------------------------
* * * * * * *
2. Domestic Public Land
Mobile Stations [Paging and
Radiotelephone Service, Air-
ground Radiotelephone
Service]:
a. Application for new or FCC 600................ 265.00 CMD Federal Communications
additional facility (per Commission, Common Carrier
transmitter). Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
b. Application for major FCC 600................ 265.00 CMD Federal Communications
modification of an Commission, Common Carrier
existing facility (per Land Mobile, P.O. Box
transmitter). 358130, Pittsburgh, PA
15251-5130.
c. Notification of FCC 489................ 265.00 CMD Federal Communications
additional transmitter Commission, Common Carrier
(per transmitter). Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
d. Major amendment of a FCC 600................ 265.00 CMD Federal Communications
pending application (per Commission, Common Carrier
transmitter). Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
e. Application for
assignment of
authorization or consent
to transfer of control:
(i) First call sign.... FCC 490................ 265.00 CMD Federal Communications
Commission, Common Carrier
Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
(ii) Each additional FCC 490................ 45.00 CAD Federal Communications
call sign. Commission, Common Carrier
Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
f. Application for FCC 600 & FCC 490...... 265.00 CMD Federal Communications
partial assignment of Commission, Common Carrier
authorization (per call Land Mobile, P.O. Box
sign). 358130, Pittsburgh, PA
15251-5130.
g. Application for FCC 405 & FCC 159...... 45.00 CAD Federal Communications
renewal (per call sign). Commission, Common Carrier
Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
h. Minor modification
(per transmitter):
(i) Notification of FCC 489................ 45.00 CAD Federal Communications
minor modification. Commission, Common Carrier
Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
(ii) Application for FCC 600................ 45.00 CAD Federal Communications
minor modification. Commission, Common Carrier
Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
i. Request for special Written request & FCC 230.00 CLD Federal Communications
temporary authority (per 159. Commission, Common Carrier
channel/per location). Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
j. Application for FCC 600................ 45.00 CAD Federal Communications
extension of Commission, Common Carrier
construction period (per Land Mobile, P.O. Box
authorization). 358130, Pittsburgh, PA
15251-5130.
k. Notification of FCC 489................ 45.00 CAD Federal Communications
commencement of service Commission, Common Carrier
to subscribers (per Land Mobile, P.O. Box
notification). 358130, Pittsburgh, PA
15251-5130.
l. Application for new or FCC 600................ 230.00 CLD Federal Communications
modified auxiliary test Commission, Common Carrier
transmitter (per Land Mobile, P.O. Box
transmitter). 358130, Pittsburgh, PA
15251-5130.
m. Application for FCC 600................ 115.00 CFD Federal Communications
authority to provide Commission, Common Carrier
commercial mobile Land Mobile, P.O. Box
service using broadcast 358130, Pittsburgh, PA
station subcarriers (per 15251-5130.
application).
n. Application for
reinstatement [no longer
available].
o. Application to combine FCC 600................ 230.00 CLD Federal Communications
separate authorizations Commission, Common Carrier
(per call sign). Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
p. Application for new FCC 600................ 230.00 CLD Federal Communications
or modified standby Commission, Common Carrier
transmitter (per Land Mobile, P.O. Box
transmitter/per 358130, Pittsburgh, PA
location). 15251-5130.
q. 931 MHz nationwide
paging renewal [see 2g].
r. Application for new, FCC 409 & FCC 159...... 45.00 CAD Federal Communications
modified or renewal Commission, Common Carrier
general aviation air- Land Mobile, P.O. Box
ground mobile license 358130, Pittsburgh, PA
(per application). 15251-5130.
s. Application for 932- FCC 600................ 265.00 CMP Federal Communications
932.5/941-941.5 MHz Commission, 932/941 MHz
point-to-multipoint Point-to-Multipoint
channels (per Channels, Common Carrier
transmitter). Bureau, P.O. Box 358924,
Pittsburgh, PA 15261-5924.
3. Cellular Systems [Cellular
Radiotelephone Service]:
a. Initial application FCC 600................ 265.00 CMC Federal Communications
for new cellular system. Commission, Cellular
Systems, P.O. Box 358135,
Pittsburgh, PA 15251-5135.
b. Application for major FCC 600................ 265.00 CMC Federal Communications
modification. Commission, Cellular
Systems, P.O. Box 358135,
Pittsburgh, PA 15251-5135.
c. Minor modifications.
(i) Application for FCC 600................ 70.00 CDC Federal Communications
minor modification. Commission, Cellular
Systems, P.O. Box 358135,
Pittsburgh, PA 15251-5135.
(ii) Notification of FCC 489................ 70.00 CDC Federal Communications
minor modification or Commission, Cellular
commencement of Systems, P.O. Box 358135,
service to subscribers Pittsburgh, PA 15251-5135.
(per notification).
d. Application for full FCC 490................ 265.00 CMC Federal Communications
or partial assignment of Commission, Cellular
authorization or consent Systems, P.O. Box 358135,
to transfer of control. Pittsburgh, PA 15251-5135.
e. Application for FCC 405 & FCC 159...... 45.00 CAC Federal Communications
renewal. Commission, Cellular
Systems, P.O. Box 358135,
Pittsburgh, PA 15251-5135.
f. Application for FCC 600................ 45.00 CAC Federal Communications
extension of Commission, Cellular
construction period. Systems, P.O. Box 358135,
Pittsburgh, PA 15251-5135.
g. Request for special Written request & FCC 230.00 CLC Federal Communications
temporary authority. 159. Commission, Cellular
Systems, P.O. Box 358135,
Pittsburgh, PA 15251-5135.
h. Request to combine Written request & FCC 60.00 CBC Federal Communications
cellular geographic 159. Commission, Cellular
service areas (per Systems, P.O. Box 358135,
system). Pittsburgh, PA 15251-5135.
4. Rural Radio [Rural
Radiotelephone Service]:
a. Application for new or FCC 600................ 125.00 CGR Federal Communications
additional facility (per Commission, Common Carrier
transmitter). Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
b. Application for major FCC 600................ 125.00 CGR Federal Communications
modification of an Commission, Common Carrier
existing facility (per Land Mobile, P.O. Box
transmitter). 358130, Pittsburgh, PA
15251-5130.
c. Major amendment of a FCC 600................ 125.00 CGR Federal Communications
pending application (per Commission, Common Carrier
transmitter). Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
d. Minor modifications:
(i) Notification of FCC 489................ 45.00 CAR Federal Communications
minor modification Commission, Common Carrier
(per transmitter). Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
(ii) Application for FCC 600................ 45.00 CAR Federal Communications
minor modification Commission, Common Carrier
(per transmitter). Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
e. Application for
assignment of
authorization or consent
to transfer of control:
(i) First call sign.... FCC 490................ 125.00 CGR Federal Communications
Commission, Common Carrier
Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
(ii) Each additional FCC 490................ 45.00 CAR Federal Communications
call sign. Commission, Common Carrier
Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
(iii) Partial FCC 490 & FCC 600...... 125.00 CGF Federal Communications
assignment of Commission, Common Carrier
authorization (per Land Mobile, P.O. Box
call sign). 358130, Pittsburgh, PA
15251-5130.
f. Application for FCC 405 & FCC 159...... 45.00 CAR Federal Communications
renewal (per call sign). Commission, Common Carrier
Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
g. Application for FCC 600................ 45.00 CAR Federal Communications
extension of Commission, Common Carrier
construction period (per Land Mobile, P.O. Box
application). 358130, Pittsburgh, PA
15251-5130.
h. Notification of FCC 489................ 45.00 CAR Federal Communications
commencement of service Commission, Common Carrier
to subscribers (per Land Mobile, P.O. Box
notification). 358130, Pittsburgh, PA
15251-5130.
i. Request for special Written request & FCC 230.00 CLR Federal Communications
temporary authority (per 159. Commission, Common Carrier
channel/per location). Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
j. Application for
reinstatement [no longer
available].
k. Application to combine FCC 600................ 230.00 CLR Federal Communications
separate authorizations Commission, Common Carrier
(per call sign). Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
l. Application for new or FCC 600................ 230.00 CLR Federal Communications
modified auxiliary test Commission, Common Carrier
transmitter (per Land Mobile, P.O. Box
transmitter). 358130, Pittsburgh, PA
15251-5130.
m. Application for new or FCC 600................ 230.00 CLR Federal Communications
modified standby Commission, Common Carrier
transmitter (per Land Mobile, P.O. Box
transmitter). 358130, Pittsburgh, PA
15251-5130.
5. Offshore Radiotelephone
Service:
a. Application for new or FCC 600................ 125.00 CGF Federal Communications
additional facility (per Commission, Common Carrier
transmitter). Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
b. Application for major FCC 600................ 125.00 CGF Federal Communications
modification of an Commission, Common Carrier
existing facility (per Land Mobile, P.O. Box
transmitter). 358130, Pittsburgh, PA
15251-5130.
c. Fill-in transmitters
[not available].
d. Major amendment of a FCC 600................ 125.00 CGF Federal Communications
pending application (per Commission, Common Carrier
transmitter). Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
e. Minor modifications:
(i) Notification of FCC 489................ 45.00 CAF Federal Communications
minor modification Commission, Common Carrier
(per transmitter). Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
(ii) Application for FCC 600................ 45.00 CAF Federal Communications
minor modification Commission, Common Carrier
(per transmitter). Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
f. Application for
assignment of
authorization or consent
to transfer of control:
(i) First call sign.... FCC 490................ 125.00 CGF Federal Communications
Commission, Common Carrier
Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
(ii) Each additional FCC 490................ 45.00 CAF Federal Communications
call sign. Commission, Common Carrier
Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
(iii) Partial FCC 490 & FCC 600...... 125.00 CGF Federal Communications
assignment of Commission, Common Carrier
authorization (per Land Mobile, P.O. Box
call sign). 358130, Pittsburgh, PA
15251-5130.
g. Application for FCC 405 & FCC 159...... 45.00 CAF Federal Communications
renewal (per call sign). Commission, Common Carrier
Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
h. Application for FCC 600................ 45.00 CAF Federal Communications
extension of Commission, Common Carrier
construction period (per Land Mobile, P.O. Box
application). 358130, Pittsburgh, PA
15251-5130.
i. Application for
reinstatement [no longer
available]
j. Notification of FCC 489................ 45.00 CAF Federal Communications
commencement of service Commission, Common Carrier
to subscribers (per Land Mobile, P.O. Box
notification). 358130, Pittsburgh, PA
15251-5130.
k. Request for special Written request & FCC 230.00 CLF Federal Communications
temporary authority (per 159. Commission, Common Carrier
channel/per location). Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
l. Application to combine FCC 600................ 230.00 CLF Federal Communications
separate authorizations Commission, Common Carrier
(per call sign). Land Mobile, P.O. Box
358130, Pittsburgh, PA
15251-5130.
m. Application for new or FCC 600................ 230.00 CLF Federal Communications
modified auxiliary test Commission, Common Carrier
transmitter (per Land Mobile, P.O. Box
transmitter). 358130, Pittsburgh, PA
15251-5130.
n. Application for new or FCC 600................ 230.00 CLF Federal Communications
modified standby Commission, Common Carrier
transmitter (per Land Mobile, P.O. Box
transmitter). 358130, Pittsburgh, PA
15251-5130.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
PART 20--COMMERCIAL MOBILE RADIO SERVICES
1. The authority citation for part 20 continues to read as follows:
Authority: Secs. 4, 303, and 332, 48 Stat. 1066, 1082, as
amended; 47 U.S.C. 154, 303, and 332, unless otherwise noted.
2. New Sec. 20.6 is added to read as follows:
Sec. 20.6 CMRS spectrum aggregation limit.
(a) 45 MHz limitation. No licensee in the broadband PCS, cellular,
or SMR services (including all parties under common control) regulated
as CMRS (see Sec. 20.9) shall have an attributable interest in a total
of more than 45 MHz of licensed broadband PCS, cellular, and SMR
spectrum regulated as CMRS with significant overlap in any geographic
area.
(b) SMR spectrum. To calculate the amount of attributable SMR
spectrum for purposes of paragraph (a) of this section, an entity must
count all 800 MHz channels and 900 MHz channels located at any SMR base
station inside the geographic area (MTA or BTA) where there is
significant overlap. All 800 MHz channels located on at least one of
those identified base stations count as 50 kHz (25 kHz paired), and all
900 MHz channels located on at least one of those identified base
stations count as 25 kHz (12.5 kHz paired), except that no more than 10
MHz of SMR spectrum in the 800 MHz SMR service will be attributed to an
entity when determining compliance with the cap.
(c) Significant overlap. (1) For purposes of paragraph (a) of this
section, significant overlap of a PCS licensed service area and CGSA(s)
(as defined in Sec. 22.911 of this chapter) or SMR service area(s)
occurs when at least 10 percent of the population of the PCS licensed
service area, as determined by the 1990 census figures for the counties
contained therein, is within the CGSA(s) and/or SMR service area(s).
(2) The Commission shall presume that an SMR service area covers
less than 10 percent of the population of a PCS service area if none of
the base stations of the SMR licensee is located within the PCS service
area. For an SMR licensee's base stations that are located within a PCS
service area, the channels licensed at those sites will be presumed to
cover 10 percent of the population of the PCS service area, unless the
licensee shows that its protected service contour for all of its base
stations covers less than 10 percent of the population of the PCS
service area.
(d) Ownership attribution. For purposes of paragraph (a) of this
section, ownership and other interests in broadband PCS licensees,
cellular licensees, or SMR licensees will be attributed to their
holders pursuant to the following criteria:
(1) Controlling interest shall be attributable. Controlling
interest means majority voting equity ownership, any general
partnership interest, or any means of actual working control (including
negative control) over the operation of the licensee, in whatever
manner exercised.
(2) Partnership and other ownership interests and any stock
interest amounting to 20 percent or more of the equity, or outstanding
stock, or outstanding voting stock of a broadband PCS, cellular, or SMR
licensee shall be attributed, except that ownership will not be
attributed unless the partnership and other ownership interests and any
stock interest amount to at least 40 percent of the equity, or
outstanding stock, or outstanding voting stock of a broadband PCS,
cellular, or SMR licensee if the ownership interest is held by a small
business, a rural telephone company, or a business owned by minorities
and/or women, as these terms are defined in Sec. 1.2110 of this chapter
or other related provisions of the Commission's rules, or if the
ownership interest is held by an entity with a non-controlling equity
interest in a broadband PCS licensee or applicant that is a business
owned by minorities and/or women.
(3) Stock interests held in trust shall be attributed to any person
who holds or shares the power to vote such stock to any person who has
the sole power to sell such stock, and, in the case of stock held in
trust, to any person who has the right to revoke the trust at will or
to replace the trustee at will. If the trustee has a familial,
personal, or extra-trust business relationship to the grantor or the
beneficiary, the grantor or beneficiary, as appropriate, will be
attributed with the stock interests held in trust.
(4) Non-voting stock shall be attributed as an interest in the
issuing entity if in excess of the amounts set forth in paragraph
(d)(2) of this section.
(5) Debt and instruments such as warrants, convertible debentures,
options, or other interests (except non-voting stock) with rights of
conversion to voting interests shall not be attributed unless and until
conversion is effected, except that this provision does not apply in
determining whether an entity is a small business, a rural telephone
company, or a business owned by minorities and/or women, as these terms
are defined in Sec. 1.2110 of this chapter or other related provisions
of the Commission's rules.
(6) Limited partnership interests shall be attributed to limited
partners and shall be calculated according to both the percentage of
equity paid in and the percentage of distribution of profits and
losses.
(7) Officers and directors of a broadband PCS licensee or
applicant, cellular licensee, or SMR licensee shall be considered to
have an attributable interest in the entity with which they are so
associated. The officers and directors of an entity that controls a
broadband PCS licensee or applicant, a cellular licensee, or an SMR
licensee shall be considered to have an attributable interest in the
broadband PCS licensee or applicant, cellular licensee, or SMR
licensee.
(8) Ownership interests that are held indirectly by any party
through one or more intervening corporations will be determined by
successive multiplication of the ownership percentages for each link in
the vertical ownership chain and application of the relevant
attribution benchmark to the resulting product, except that if the
ownership percentage for an interest in any link in the chain exceeds
50 percent or represents actual control, it shall be treated as if it
were a 100 percent interest.
(e) Divestiture. Any party holding controlling or attributable
ownership interests in SMR licensees accounting for more than 5 MHz of
SMR spectrum may be a party to a broadband PCS application (i.e., have
a controlling or attributable interest in a broadband PCS applicant),
and such PCS applicant will be eligible for PCS licenses amounting to
40 MHz of broadband PCS spectrum in a geographical area, pursuant to
the divestiture procedures set forth in paragraphs (e)(1) through
(e)(3) of this section.
(1) The Broadband PCS applicant shall certify on its bidder
application that it and all parties to the application will come into
compliance with the limitations on spectrum aggregation set forth in
this section.
(2) If such an applicant is a successful bidder, it must submit
with its long-form application a signed statement describing its
efforts to date and future plans to come into compliance with the
limitations on spectrum aggregation set forth in this section.
(3) If such an applicant is otherwise qualified, its application
will be granted subject to a condition that the licensee shall come
into compliance with the limitations on spectrum aggregation set forth
in this section within ninety (90) days of final grant.
(i) Parties holding controlling interests in SMR licensees that
conflict with the attribution threshold or geographic overlap
limitations set forth in this section will be considered to have come
into compliance if they have submitted to the Commission an application
for assignment of license or transfer of control of the SMR licensee
(see Sec. 90.158 of this chapter) by which, if granted, such parties no
longer would have an attributable interest in the SMR license. If no
such assignment or transfer application is tendered to the Commission
within ninety (90) days of final grant, the Commission may consider the
short-form certification and the long-form divestiture statement to be
material, bad faith misrepresentations and shall invoke the condition
on the PCS license, cancelling it automatically, shall retain all
monies paid to the Commission, and, based on the facts presented, shall
take any other action it may deem appropriate. Divestiture may be to an
interim trustee if a buyer has not been secured in the required period
of time, as long as the applicant has no interest in or control of the
trustee, and the trustee may dispose of the license as it sees fit.
(ii) Where parties to broadband PCS applications hold less than
controlling (but still attributable) interests in SMR licensee(s), they
shall submit, within ninety (90) days of final grant, a certification
that the applicant and all parties to the application have come into
compliance with the limitations on spectrum aggregation set forth in
this section.
Note 1 to Sec. 20.6: For purposes of the ownership attribution
limit, all ownership interests in operations that serve at least 10
percent of the population of the PCS service area should be included
in determining the extent of a PCS applicant's cellular or SMR
ownership.
Note 2 to Sec. 20.6: When a party owns an attributable interest
in more than one cellular or SMR system that overlaps a PCS service
area, the total population in the overlap area will apply on a
cumulative basis.
PART 22--PUBLIC MOBILE RADIO SERVICE
1. The authority citation for Part 22 is revised to read as
follows:
Authority: 47 U.S.C. 154, 303, and 332, unless otherwise noted.
Sec. 22.105 [Amended.]
2. In Sec. 22.105, Table B-1 is amended by removing the number 401
in the ``Form Number'' column and, in its place, adding the number 600
in the ``Form Number''.
3. The following sections of part 22 are amended by removing the
term ``FCC Form 401'' and adding, in its place, the term ``FCC Form
600'':
(a) 22.115(a)(2);
(b) 22.137(c)(1)(ii);
(c) 22.142(c), introductory text, and (d) introductory text;
(d) 22.357, introductory text;
(e) 22.411(d)(1);
(f) 22.413(b)(1);
(g) 22.415(b)(1);
(h) 22.417(b)(1);
(i) 22.507;
(j) 22.529(a), introductory text and (b) introductory text;
(k) 22.531(c);
(l) 22.709(b), introductory text;
(m) 22.803(a), introductory text, and (b) introductory text;
(n) 22.911(b), introductory text;
(o) 22.929(a), introductory text, and (b), introductory text;
(p) 22.941(c);
(q) 22.947(b), introductory text; and
(r) 22.953(a)(2)(iii).
4. Section 22.131 is revised to read as follows:
Sec. 22.131 Procedures for mutually exclusive applications.
Two or more pending applications are mutually exclusive if the
grant of one application would effectively preclude the grant of one or
more of the others under Commission rules governing the Public Mobile
Services involved. The Commission uses the general procedures in this
section for processing mutually exclusive applications in the Public
Mobile Services. Additional specific procedures are prescribed in the
subparts of this part governing the individual Public Mobile Services
(see Secs. 22.509, 22.717, and 22.949) and in part 1 of this chapter.
(a) Separate applications. Any applicant that files an application
knowing that it will be mutually exclusive with one or more
applications should not include in the mutually exclusive application a
request for other channels or facilities that would not, by themselves,
render the application mutually exclusive with those other
applications. Instead, the request for such other channels or
facilities should be filed in a separate application.
(b) Filing groups. Pending mutually exclusive applications are
processed in filing groups. Mutually exclusive applications in a filing
group are given concurrent consideration. The Commission may dismiss as
defective (pursuant to Sec. 22.128) any mutually exclusive
application(s) whose filing date is outside of the date range for
inclusion in the filing group. The types of filing groups used in day-
to-day application processing are specified in paragraph (c)(3) of this
section. A filing group is one of the following types:
(1) Renewal filing group. A renewal filing group comprises a
timely-filed application for renewal of an authorization and all
timely-filed mutually exclusive competing applications (see
Sec. 22.145).
(2) Same-day filing group. A same-day filing group comprises all
mutually exclusive applications whose filing date is the same day,
which is normally the filing date of the first-filed application(s).
(3) Thirty-day notice and cut-off filing group. A 30-day notice and
cut-off filing group comprises mutually exclusive applications whose
filing date is no later than thirty (30) days after the date of the
Public Notice listing the first-filed application(s) (according to the
filing dates) as acceptable for filing.
(4) Window filing group. A window filing group comprises mutually
exclusive applications whose filing date is within an announced filing
window. An announced filing window is a period of time between and
including two specific dates, which are the first and last dates on
which applications (or amendments) for a particular purpose may be
accepted for filing. In the case of a one-day window, the two dates are
the same. The dates are made known to the public in advance.
(c) Procedures. Generally, the Commission may grant one application
in a filing group of mutually exclusive applications and dismiss the
other application(s) in the filing group that are excluded by that
grant, pursuant to Sec. 22.128.
(1) Selection methods. In selecting the application to grant, the
Commission may use competitive bidding, random selection, or
comparative hearings, depending upon the type of applications involved.
(2) Dismissal of applications. The Commission may dismiss any
application in a filing group that is defective or otherwise subject to
dismissal under Sec. 22.128, either before or after employing selection
procedures.
(3) Type of filing group used. Except as otherwise provided in this
part, the type of filing group used in the processing of two or more
mutually exclusive applications depends upon the purpose(s) of the
applications.
(i) If one of the mutually exclusive applications is a timely-filed
application for renewal of an authorization, a renewal filing group is
used.
(ii) If any mutually exclusive application filed on the earliest
filing date is an application for modification and none of the mutually
exclusive applications is a timely-filed application for renewal, a
same-day filing group is used.
(iii) If all of the mutually exclusive applications filed on the
earliest filing date are applications for initial authorization, a 30-
day notice and cut-off filing group is used, except that, for Phase I
unserved area applications in the Cellular Radiotelephone Service, a
one-day window filing group is used (see Sec. 22.949).
(4) Disposition. If there is only one application in any type of
filing group, the Commission may grant that application and dismiss
without prejudice any mutually exclusive applications not in the filing
group. If there is more than one mutually exclusive application in a
filing group, the Commission disposes of these applications as follows:
(i) Applications in a renewal filing group. All mutually exclusive
applications in a renewal filing group are designated for comparative
consideration in a hearing.
(ii) Applications in a 30-day notice and cut-off filing group.
(A) If all of the mutually exclusive applications in a 30-day
notice and cut-off filing group are applications for initial
authorization, and none is an application for facilities in the Rural
Radiotelephone Service, the Commission shall administer competitive
bidding procedures in accordance with subpart Q of part 1 of this
chapter. After such procedures, the application of the successful
bidder may be granted and the other applications may be dismissed
without prejudice.
(B) If any of the mutually exclusive applications in a 30-day
notice and cut-off filing group is an application for modification or
an application for facilities in the Rural Radiotelephone Service, the
Commission may attempt to resolve the mutual exclusivity by
facilitating a settlement between the applicants. If a settlement is
not reached within a reasonable time, the Commission may designate all
applications in the filing group for comparative consideration in a
hearing. In this event, the result of the hearing disposes of all the
applications in the filing group.
(iii) Applications in a same-day filing group. If there are two or
more mutually exclusive applications in a same-day filing group, the
Commission may attempt to resolve the mutual exclusivity by
facilitating a settlement between the applicants. If a settlement is
not reached within a reasonable time, the Commission may designate all
applications in the filing group for comparative consideration in a
hearing. In this event, the result of the hearing disposes of all of
the applications in the filing group.
(iv) Applications in a window filing group. Applications in a
window filing group are processed in accordance with the procedures for
a 30-day notice and cut-off filing group in paragraph (c)(4)(ii) of
this section.
(d) Terminology. For the purposes of this section, terms have the
following meanings:
(1) The filing date of an application is the date on which that
application was received in a condition acceptable for filing or the
date on which the most recently filed major amendment to that
application was received, whichever is later, excluding major
amendments in the following circumstances:
(i) The major amendment reflects only a change in ownership or
control found by the Commission to be in the public interest;
(ii) The major amendment as received is defective or otherwise
found unacceptable for filing; or
(iii) The application being amended has been designated for hearing
and the Commission or the presiding officer accepts the major
amendment.
(2) An application for initial authorization is:
(i) Any application requesting an authorization for a new system or
station;
(ii) Any application requesting authorization for an existing
station to operate on an additional channel, unless the additional
channel is for paired two-way radiotelephone operation, is in the same
frequency range as the existing channel(s), and will be operationally
integrated with the existing channel(s) such as by trunking;
(iii) Any application requesting authorization for a new
transmitter at a location more than 2 kilometers (1.2 miles) from any
existing transmitters of the applicant licensee on the requested
channel or channel block; or
(iv) Any application to expand the CGSA of a cellular system (as
defined in Sec. 22.911), except during the five-year build-out period.
(3) An application for modification is any application other than
an application for initial authorization or renewal.
5. Section 22.301 is revised to read as follows:
Sec. 22.301 Station inspection.
Upon 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.
6. Section 22.313 is amended by revising paragraph (a)(4), adding a
new paragraph (a)(5), and revising paragraphs (b) and (c) to read as
follows:
Sec. 22.313 Station identification.
* * * * *
(a) * * *
(4) Rural subscriber stations using Basic Exchange Telephone Radio
Systems in the Rural Radiotelephone Service; or
(5) Nationwide network paging stations operating on 931 MHz
channels.
(b) For all other stations in the Public Mobile Services, station
identification must be transmitted each hour within five minutes of the
hour, or upon completion of the first transmission after the hour.
Transmission of station identification may be temporarily delayed to
avoid interrupting the continuity of any public communication in
progress, provided that station identification is transmitted at the
conclusion of that public communication.
(c) Station identification must be transmitted by telephony using
the English language or by telegraphy using the international Morse
code, and in a form that can be received using equipment appropriate
for the modulation type employed, and understood without the use of
unscrambling devices, except that, alternatively, station
identification may be transmitted digitally, provided that the licensee
provides the Commission with information sufficient to decode the
digital transmission to ascertain the call sign. Station identification
comprises transmission of the call sign assigned by the Commission to
the station, however, the following may be used in lieu of the call
sign.
(1) For transmission from subscriber operated transmitters, the
telephone number or other designation assigned by the carrier, provided
that a written record of such designations is maintained by the
carrier;
(2) For general aviation airborne mobile stations in the Air-Ground
Radiotelephone Service, the official FAA registration number of the
aircraft;
(3) For stations in the Paging and Radiotelephone Service, a call
sign assigned to another station within the same system.
7. Section 22.357 is revised to read as follows:
Sec. 22.357 Emission types.
Any authorized station in the Public Mobile Services may transmit
any emission type provided that the resulting emission complies with
the appropriate emission mask. See Secs. 22.359 and 22.917.
8. A new Sec. 22.509 is added to read as follows:
Sec. 22.509 Procedures for mutually exclusive applications in the
Paging and Radiotelephone Service.
Mutually exclusive applications in the Paging and Radiotelephone
Service, including those that are mutually exclusive with applications
in the Rural Radiotelephone Service, are processed in accordance with
Sec. 22.131 and with this section.
(a) Applications in the Paging and Radiotelephone Service may be
mutually exclusive with applications in the Rural Radiotelephone
Service if they seek authorization to operate facilities on the same
channel in the same area, or the technical proposals are otherwise in
conflict. See Sec. 22.567.
(b) A modification application in either service filed on the
earliest filing date may cause all later-filed mutually exclusive
applications of any type in either service to be ``cut off'' (excluded
from a same-day filing group) and dismissed, pursuant to
Sec. 22.131(c)(3)(ii) and Sec. 22.131(c)(4).
(c) Competitive bidding will not be used as a selection procedure
for any filing group that contains one or more applications for
facilities in the Rural Radio Service. If a settlement between the
applicants cannot be reached in a reasonable time, the applications may
be designated for comparative consideration in a hearing. See
Sec. 22.13(c)(4)(ii).
Sec. 22.541 [Removed]
9. Section 22.541 is removed.
10. Section 22.717 is revised to read as follows:
Sec. 22.717 Procedure for mutually exclusive applications in the Rural
Radiotelephone Service.
Mutually exclusive applications in the Rural Radiotelephone
Service, including those that are mutually exclusive with applications
in the Paging and Radiotelephone Service, are processed in accordance
with Sec. 22.131 and with this section. (a) Applications in the Rural
Radiotelephone Service may be mutually exclusive with applications in
the Paging and Radiotelephone Service if they seek authorization to
operate facilities on the same channel in the same area, or the
technical proposals are otherwise in conflict. See Sec. 22.567.
(b) A modification application in either service filed on the
earliest filing date may cause all later-filed mutually exclusive
applications of any type in either service to be ``cut off'' (excluded
from a same-day filing group) and dismissed, pursuant to
Sec. 22.131(c)(3)(ii) and Sec. 22.131(c)(4).
(c) Competitive bidding will not be used as a selection procedure
for any filing group that contains one or more applications for
facilities in the Rural Radio Service. if a settlement between the
applicants cannot be reached in a reasonable time, the applications may
be designated for comparative consideration in a hearing. See
Sec. 22.131(c)(4)(ii).
11. Section 22.949 is amended by revising paragraph (a)(2), adding
a NOTE following paragraph (a)(2), revising the introductory text of
paragraph (b), and revising paragraphs (b)(2), (c), (d)(1) and (d)(3),
to read as follows:
Sec. 22.949 Unserved area licensing process.
* * * * *
(a) * * *
(2) Only one Phase I initial application is granted on each channel
block in each market. Consequently, whenever two or more acceptable
Phase I initial applications are timely filed in the same market on the
same channel block, such Phase I initial applications are mutually
exclusive, regardless of any other considerations such as the technical
proposals. In order to determine which of such mutually exclusive Phase
I initial applications to grant, the Commission administers competitive
bidding procedures in accordance with subpart Q of part 1 of this
chapter. After such procedures, the application of the winning bidder
may be granted and the applications excluded by that grant may be
dismissed without prejudice.
Note: Notwithstanding the provisions of Sec. 22.949(a)(2),
mutually exclusive Phase I initial applications that were filed
between March 10, 1993 and July 25, 1993, inclusive, are to be
included in a random selection process, following which the selected
application may be granted and the applications excluded by that
grant may be dismissed without prejudice.
* * * * *
(b) Phase II. Phase II is an on-going filing process that allows
eligible parties to apply for any unserved areas that may remain in a
market after the Phase I process is complete.
* * * * *
(2) There is no limit to the number of Phase II applications that
may be granted on each channel block in each market. Consequently,
Phase II applications are mutually exclusive only if the proposed CGSAs
would overlap. Mutually exclusive applications are processed using the
general procedures in Sec. 22.131.
* * * * *
(c) Settlements among mutually exclusive applicants. Settlements
among some, but not all, applicants with mutually exclusive
applications for unserved areas (partial settlements) are prohibited.
Settlements among all applicants with mutually exclusive applications
(full settlements) are allowed and must be filed no later than fifteen
(15) business days before the competitive bidding procedure is
scheduled to take place.
(d) * * *
(1) The Commission will not accept amendments (of any type) to
mutually exclusive Phase I applications prior to the conclusion of the
competitive bidding process.
* * * * *
(3) Minor amendments required by Sec. 1.65 of this chapter must be
filed no later than thirty (30) days after public notice announcing the
results of the competitive bidding process.
PART 24--PERSONAL COMMUNICATIONS SERVICES
1. The authority citation for part 24 continues to read as follows:
Authority: 47 U.S.C. 154, 301, 302, 303, 309, and 332, unless
otherwise noted.
2. The following sections of part 24 are amended by removing the
term ``FCC Form 401'' and adding, in its place, the term ``FCC Form
600'':
(a) 24.307;
(b) 24.406(b);
(c) 24.409(b);
(d) 24.413(a), introductory text;
(e) 24.426(a);
(f) 24.427(b);
(g) 24.707;
(h) 24.806(b);
(i) 24.809(b);
(j) 24.813(a), introductory text;
(k) 24.826(a); and
(l) 24.827(b).
PART 90--PRIVATE LAND MOBILE RADIO SERVICES
1. The authority citation for part 90 continues to read as follows:
Authority: Sections 4, 303, and 332, 48 Stat. 1066, 1082, as
amended; 47 U.S.C. 154, 303, and 332, unless otherwise noted.
2. Section 90.5 is amended by redesignating paragraphs (h) through
(k) as paragraphs (i) through (l) and adding a new paragraph (h) to
read as follows:
Sec. 90.5 Other applicable rule parts.
* * * * *
(h) Part 20 of this chapter contains rules relating to commercial
mobile radio services.
* * * * *
3. Section 90.75 is amended by revising paragraph (a), introductory
text, and the third sentence of paragraph (c)(10) to read as follows:
Sec. 90.75 Business Radio Service.
(a) Eligibility. Persons primarily engaged in any of the following
activities are eligible to hold authorizations in the Business Radio
Service to provide commercial mobile radio service as defined in part
20 of this chapter or to operate stations for transmission of
communications necessary to such activities of the licensee:
* * * * *
(c) * * *
(10) * * * Licensees may provide one-way paging communications on
this frequency to individuals, persons eligible for licensing under
subpart B, C, D, or E of this part, to representatives of Federal
Government agencies, and foreign governments and their representatives.
* * * * *
4. Section 90.115 is revised to read as follows:
Sec. 90.115 Foreign government and alien eligibility.
(a) No station authorization in the radio services governed by this
part shall be granted to or held by a foreign government or its
representative.
(b) No station authorization in the radio services governed by this
part shall be granted to or held by an entity providing or seeking to
provide commercial mobile radio services (except such entities meeting
the requirements of Sec. 20.9(c) of this chapter) if such entity is:
(1) An alien or the representative of any alien;
(2) A corporation organized under the laws of any foreign
government;
(3) A corporation of which any officer or director is an alien or
of which more than one-fifth of the capital stock is owned of record or
voted by aliens or their representatives or by a foreign government or
representative thereof, or by any corporation organized under the laws
of a foreign country;
(4) A corporation directly or indirectly controlled by any other
corporation of which any officer or more than one-fourth of the
directors are aliens, or of which more than one-fourth of the capital
stock is owned of record or voted by aliens, their representatives, or
by a foreign government or representative thereof, or by any
corporation organized under the laws of a foreign country, if the
Commission finds that the public interest will be served by the refusal
or revocation of such license.
5. Section 90.119 is revised to read as follows:
Sec. 90.119 Application forms.
The following application forms shall be used--
(a) Form 600 shall be used to apply:
(1) For new base, fixed, or mobile station authorizations governed
by this part.
(2) For system authorizations, where the system meets the
requirements of Sec. 90.117.
(i) Application for a radio system may be submitted on a single
Form 600.
(ii) If the control station(s) will operate on the same frequency
as the mobile station, and if the height of the control station(s)
antenna(s) will not exceed 6.1 meters (20 feet) above ground or an
existing man-made structure (other than an antenna structure), there is
no limit on the number of such stations which may be authorized.
Appropriate items on Form 600 shall be completed showing the frequency,
the station class, the total number of control stations, the emission,
and the output power of the highest powered control station. Applicants
for all control stations in the 470-512 MHz band must furnish the
information requested in the relevant items in Form 600.
(3) For modification or for modification and renewal of an existing
authorization. See Sec. 90.135.
(4) For the Commission's consent to the assignment of an
authorization to another person or entity, except for authorization to
provide commercial mobile radio service. In addition, the application
shall be accompanied by a letter from the assignor setting forth his or
her desire to assign all right, title, and interest in and to such
authorization, stating the call sign and location of the station, and
stating that the assignor will submit his or her current station
authorization for cancellation upon completion of the assignment. Form
1046 may be used in lieu of this letter.
(5) For reinstatement of an expired license. See also paragraphs
(b)(1) and (e) of this section.
(b) Form 405-A shall be used to:
(1) Apply for license reinstatement or renewal if the reinstatement
or renewal does not involve the modification of the station or system
license.
(2) Notify the Commission of a change in the licensee's name or
mailing address that occurs during the license term. See
Sec. 90.135(b).
(3) Notify the Commission that the licensee has discontinued
station operation and wishes to cancel the license. See Sec. 90.157.
(c) Form 490 shall be used whenever it is proposed that a licensee
for a commercial mobile radio service in this part change, as by
transfer of stock ownership, the control of a corporate licensee or for
the Commission's consent to an assignment of an authorization to
another person or entity.
(d) Form 572, Temporary Permit to Operate a Part 90 Radio Station,
should be properly executed if the applicant is eligible and desires to
operate his or her station pending the processing of his or her formal
application. See also Secs. 90.159, and 90.657.
(e) Form 574-R shall be used to apply for renewal of an existing
authorization and may be used to apply for reinstatement of an expired
license, if the renewal or reinstatement does not involve the
modification of the station or system license. (Form 574-R is generated
by the Commission and mailed to the licensee prior to the expiration of
the license term.)
6. Section 90.131 is amended by adding introductory text before
paragraph (a) to read as follows:
Sec. 90.131 Amendment or dismissal of applications.
This rule governs all applications relating to radio services in
this part, including applications filed by entities meeting the
requirements of Sec. 20.9(c) of this chapter, except applications
concerning facilities used to provide commercial mobile radio services,
which are governed by Sec. 90.161.
* * * * *
7. Section 90.135 is amended by revising paragraph (c) to read as
follows:
Sec. 90.135 Modification of license.
* * * * *
(c) Unless specifically exempted in Sec. 90.175, requests for
modifications listed in paragraph (a) of this section must be submitted
on Form 600 to the applicable frequency coordinator.
* * * * *
8. Section 90.145 is amended by revising the first sentence of
paragraph (c) and adding paragraphs (d) and (e) to read as follows:
Sec. 90.145 Special temporary authority.
* * * * *
(c) Requests for special temporary authority to operate as a
private mobile radio service provider for periods exceeding 180 days
require evidence of frequency coordination.* * *
(d) A request for special temporary authority to operate a
commercial mobile radio facility under this part may be granted without
being listed in a Public Notice, or prior to thirty (30) days after
such listing, if:
(1) The STA is to be valid for thirty (30) days or less and the
applicant does not plan to file an application for regular
authorization of the subject operation;
(2) The STA is to be valid for sixty (60) days or less, pending the
filing of an application for regular authorization of the subject
operation;
(3) The STA is to allow interim operation to facilitate completion
of authorized construction or to provide substantially the same service
as previously authorized; or
(4) The STA is made upon a finding that there are extraordinary
circumstances requiring operation in the public interest and that delay
in the institution of such service would seriously prejudice the public
interest.
(e) The Commission may grant STAs to operate a commercial mobile
radio facility for a period not to exceed one hundred eighty (180) days
under the provisions of Section 309(f) of the Communications Act of
1934, as amended, 47 U.S.C. 309(f), if extraordinary circumstances so
require, and pending the filing of an application for regular
operation. The Commission may grant extensions for an additional period
of up to one hundred eighty (180) days, but the applicant must show
that extraordinary circumstances warrant such an extension.
9. Section 90.149 is amended by revising paragraph (a) to read as
follows:
Sec. 90.149 License term.
(a) Licenses for stations authorized under this part will be issued
for a term not to exceed five (5) years from the date of the original
issuance, modification, or renewal, except that the license term for
stations licensed as commercial mobile radio service on 220-222 MHz,
929-930 MHz paging, Business Radio, and SMR frequencies shall be ten
(10) years. Licensees shall have an additional thirty (30) days after
the expiration of the license term to apply for reinstatement of
expired licenses.
* * * * *
10. Section 90.153 is amended by adding a last sentence to the
existing paragraph, and adding paragraphs (a), (b), (c) and (d) to read
as follows:
Sec. 90.153 Transfer or assignment of station authorization.
* * * The assignee is responsible for ascertaining that the station
facilities are and will remain in compliance with the terms and
conditions of the authorization to be assigned.
(a) Application required. The assignor or transferor of a
commercial mobile radio license under this part must file an
application for approval of assignment or transfer of control
(Commission Form 490). In the case of involuntary assignment, such
application must be filed no later than thirty (30) days after the
event causing the assignment. The assignee or transferee must file a
report qualifying it as a commercial mobile radio provider (Commission
Form 430) unless a current report is already on file with the
Commission.
(b) Notification of completion. Assignments and transfers of
control of commercial mobile radio licenses must be completed within
sixty (60) days of Commission approval. The assignee or transferee must
notify the Commission by letter of the date of completion of the
assignment or transfer of control. If an assignment or transfer of
control is not completed within this time, the assignor or transferor
must so notify the Commission by letter, and the assignee or transferee
must submit the authorization(s) to the Commission for cancellation or
request an extension of time to complete the assignment or transfer of
control. If the assignment or transfer of control is not completed, the
authorization(s) remain with the assignor or transferor.
(c) Partial assignment of authorization. If the authorization for
some, but not all, of the facilities of a commercial mobile radio
station is assigned to another party, voluntarily or involuntarily,
such action is a partial assignment of authorization.
(1) To request Commission approval of a partial assignment of
authorization, the following must be filed in addition to the forms
required by paragraph (a) of this section:
(i) The assignor must notify the Commission (Commission Form 600)
of the facilities to be deleted from its authorization upon completion
of the assignment.
(ii) The assignee must apply for authority (Commission Form 600) to
operate a new station including the facilities for which authorization
is assigned, or to modify the assignee's existing station to include
the facilities for which authorization was assigned.
(2) Partial assignments must be completed within sixty (60) days of
Commission approval. If an approved partial assignment is not completed
within this time, the assignor must notify the Commission (Commission
Form 600), and the assignee must submit the authorization(s) to the
Commission for cancellation or request an extension of time to complete
the assignment. If the assignment is not completed, the
authorization(s) remain with the assignor.
(d) Limitations. The Commission may deny applications for
assignment of authorization or consent to transfer of control of a
commercial mobile radio license if:
(1) The Commission is unable to make the public interest
determinations required under the Communications Act with respect to
both parties to the assignment or transfer; or
(2) The authorization was obtained for the principal purpose of
speculation or profitable resale, rather than provision of commercial
mobile radio services to the public.
11. Section 90.155 is amended by revising paragraph (a) to read as
follows:
Sec. 90.155 Time in which station must be placed in operation.
(a) All stations authorized under this part, except stations
authorized in the 220-222 MHz, 929-930 MHz paging, Business Radio, and
SMR services, and except as provided in paragraph (b) of this section
and in Secs. 90.629 and 90.631(f), must be placed in operation within
eight (8) months from the date of grant or the authorization cancels
automatically and must be returned to the Commission. For stations
authorized to 220-222 MHz, 929-930 MHz paging, Business Radio, and SMR
licensees, see Sec. 90.167.
* * * * *
12. Section 90.159 is amended by revising the first sentence in
paragraphs (a), (b), and (c) to read as follows:
Sec. 90.159 Temporary and conditional permits.
(a) An applicant for a license under this part (other than a
commercial mobile radio license) utilizing an already licensed facility
may operate the radio station(s) for a period of up to one hundred
eighty (180) days under a temporary permit evidenced by a properly
executed temporary license certificate (Form 572) after submitting or
filing a formal application for station license in accordance with
Sec. 90.127, provided that all the antennas employed by control
stations are 6.1 meters (20 feet) or less above ground or 6.1 meters
(20 feet) or less above a man-made structure other than an antenna
tower to which it is affixed. * * *
(b) An applicant proposing to operate a new land mobile station or
modify an existing station below 470 MHz or in the one-way paging 929-
930 MHz band (other than a commercial mobile radio service applicant or
licensee on these bands) that is required to submit a frequency
recommendation pursuant to paragraphs (a) through (e) of Sec. 90.175
may operate the proposed station during the pendency of its application
for a period of up to one hundred eighty (180) days under a conditional
permit upon the filing of a properly completed formal application that
complies with Sec. 90.127 if the application is accompanied by evidence
of frequency coordination in accordance with Secs. 90.175 and 90.176,
and provided that the following conditions are satisfied: * * *
(c) An applicant proposing to operate an itinerant station or an
applicant seeking the assignment of authorization or transfer of
control of a license for an existing station below 470 MHz or in the
929-930 MHz band (other than a commercial mobile radio service
applicant or licensee on these bands) may operate the proposed station
during the pendency of the application for a period not to exceed one
hundred eighty (180) days under a conditional permit upon the filing of
a properly completed formal application that complies with Sec. 90.127.
* * *
* * * * *
13. Part 90 is amended by adding a center heading and a note after
Sec. 90.159 to read as follows:
Special Rules Governing Facilities Used To Provide Commercial
Mobile Radio Services
Note: The following rules (Sec. 90.160 through Sec. 90.169)
govern applications, licensing, and operation of radio facilities in
the 220-222 MHz (subpart T), Business Radio (Subpart D), 929-930 MHz
Paging (subpart P), and Specialized Mobile Radio (Subpart S)
services that are used to provide commercial mobile radio services
(see Secs. 20.3 and 20.9 of this chapter). Compliance with the rules
relating to applications and licensing of facilities on paging-only
channels in the Business Radio Service (see Sec. 90.75(c)(10)) and
929-930 MHz paging channels (see Sec. 90.494(a),(b)) is not required
prior to August 10, 1996. Compliance with Section 90.168 is also not
required prior to August 10, 1996 for reclassified commercial mobile
radio service providers who are to be regulated as private carriers
until August 10, 1996 as provided in the Second Report and Order in
GN Docket No. 93-252, 9 FCC Rcd 2348 (1994), paras. 280-284. The
licensing and operation of radio facilities in the 220-222 MHz
(Subpart T), Business Radio (Subpart D), 929-930 MHz Paging (Subpart
P), and Specialized Mobile Radio (Subpart S) services that are used
to provide commercial mobile radio services are also subject to
rules elsewhere in this part that apply generally to Private Land
Mobile Radio Services. In the case of any conflict between rules set
forth in Secs. 90.160 through 90.169 and other rules in this part,
Secs. 90.160 through 90.169 apply.
14-23. New Secs. 90.160 through 90.169 are added to subpart G to read
as follows:
Sec. 90.160 Public notice.
Periodically, the Commission will issue Public Notices listing
major filings and other information of public significance concerning
commercial mobile radio services licensed under this part. Categories
of Public Notice listings are as follows:
(a) Accepted for filing. Acceptance for filing of all applications
and major amendments thereto.
(b) Actions. Commission actions on pending applications previously
listed as accepted for filing.
(c) Informative listings. Information that the Commission, in its
discretion, believes to be of public significance. Such listings do not
create any rights to file oppositions or other pleadings.
Sec. 90.161 Amendment or dismissal of applications.
(a) Amendment. Pending applications concerning facilities for
providing commercial mobile radio services may be amended as a matter
of right if such applications have not been designated for hearing or
listed in a Public Notice for a random selection or competitive bidding
process, except as provided in paragraphs (a)(1) and (a)(2) of this
section. If a petition to deny or other formal objection has been
filed, a copy of any amendment (or other filing) must be served on the
petitioner. If the Commission has issued a Public Notice stating that
the application appears to be mutually exclusive with another
application (or applications), a copy of any amendment (or other
filing) must be served on any such mutually exclusive applicant (or
applicants).
(1) Amendments to applications that resolve mutual exclusivity may
be filed at any time, subject to the requirements of Sec. 90.162.
(2) Amendments to applications designated for hearing may be
allowed by the presiding officer and amendments to applications
selected in a random selection process may be allowed by the Commission
for good cause shown. In such instances, a written petition
demonstrating good cause must be submitted and served upon the parties
of record.
(b) Dismissal. The Commission may dismiss any application for
authorization, assignment of authorization, or consent to transfer of
control of a commercial mobile radio facility.
(1) Upon request by the applicant; Any applicant may request that
its application be returned or dismissed. A request for the return of
an application after it has been listed on Public Notice as tentatively
accepted for filing is considered to be a request for dismissal of that
application without prejudice.
(i) If the applicant requests dismissal of its application with
prejudice, the Commission will dismiss the application with prejudice.
(ii) If the applicant requests dismissal of its application without
prejudice, the Commission will dismiss that application without
prejudice, unless
(A) The application has been designated for comparative hearing;
(B) It has been selected in a random selection process; or
(C) It is an application for which the applicant submitted the
winning bid in a competitive bidding process. If the applicant requests
dismissal of its application for which it submitted the winning bid in
a competitive bidding process, the Commission will dismiss that
application with prejudice. If the applicant requests dismissal of its
application after that application has been designated for comparative
hearing or selected in a random selection process, it may submit a
written petition requesting that the dismissal be without prejudice.
Such petition must demonstrate good cause, comply with Sec. 90.162 of
this part, and be served upon all parties of record. The Commission may
grant such petition and dismiss the application without prejudice or
deny the petition and dismiss the application with prejudice.
(2) If the application is untimely filed; The Commission may
dismiss without prejudice any application that is prematurely or filed
late, including any application filed prior to the opening date or
after the closing date of a filing window, or after the cut-off date
for a mutually exclusive application filing group.
(3) If the application is mutually exclusive with another
application that is selected or granted in accordance with the rules in
this part; The Commission may dismiss any mutually exclusive
application:
(i) For which the applicant did not submit the winning bid in a
competitive bidding process;
(ii) That is included in a random selection process but is not
granted; or
(iii) That receives comparative consideration in a hearing but is
not granted by order of the presiding officer.
(4) For failure to prosecute; The Commission may dismiss
applications for failure of the applicant to prosecute or for failure
of the applicant to respond substantially within a specified time
period to official correspondence or requests for additional
information. Such dismissal will generally be without prejudice if the
failure to prosecute or respond occurred prior to designation of the
application for comparative hearing or prior to selection of the
application in a random selection process, but may be with prejudice in
cases of non-compliance with Sec. 90.162. Dismissal will generally be
with prejudice if the failure to prosecute or respond occurred after
designation of the application for comparative hearing or after
selection of the application in a random selection process. The
Commission may dismiss applications with prejudice for failure of the
applicant to comply with requirements related to a competitive bidding
process.
(5) If the requested spectrum is not available; The Commission may
dismiss any application that requests spectrum which is unavailable
because:
(i) It was previously assigned to another licensee on an exclusive
basis or cannot be assigned to the applicant without causing
interference; or
(ii) Reasonable efforts have been made to coordinate the proposed
facility with foreign administrations under applicable international
agreements, and an unfavorable response (harmful interference
anticipated) has been received.
(6) If the application is found to be defective. Such dismissal may
be ``without prejudice,'' meaning that the Commission may accept from
the applicant another application for the same purpose at any later
time, or ``with prejudice,'' meaning that the Commission will not
accept from the applicant another application for the same purpose for
a period of one year following the date of the dismissal action taken
by the Commission. Unless otherwise provided in this part, a dismissed
application will not be returned to the applicant. The Commission may
dismiss without prejudice applications that it finds to be defective.
An application for authorization or assignment of authorization is
defective if:
(i) It is unsigned or incomplete with respect to required answers
to questions, informational showings, or other matters of a formal
character; or
(ii) It requests an authorization that would not comply with the
Commission's Rules and does not contain a request for waiver of these
rule(s), or in the event that the Commission denies such a waiver
request, does not contain an alternative proposal that fully complies
with the rules.
Sec. 90.162 Agreements to dismiss applications, amendments, or
pleadings.
(a) Parties that have filed an application concerning facilities
used to provide commercial mobile radio services that is mutually
exclusive with one or more other applications, and then enter into an
agreement to resolve the mutual exclusivity by withdrawing or
requesting dismissal of the application or an amendment thereto, must
obtain the approval of the Commission. Parties that have filed or
threatened to file a petition to deny, informal objection, or other
pleading against a pending application, and then seek to withdraw or
request dismissal of, or refrain from filing, the petition, either
unilaterally or in exchange for a financial consideration, must obtain
the approval of the Commission.
(b) The party withdrawing or requesting dismissal of its
application, petition to deny, informal objection, or other pleading,
or refraining from filing a pleading, must submit to the Commission a
request for approval of the withdrawal or dismissal, a copy of any
written agreement related to the withdrawal or dismissal, and an
affidavit setting forth:
(1) A certification that neither the party nor its principals has
received or will receive any money or other consideration in excess of
the legitimate and prudent expenses incurred in preparing and
prosecuting the application, petition to deny, informal objection, or
other pleading in exchange for the withdrawal or dismissal of the
application, petition to deny, informal objection, or other pleading,
or threat to file a pleading, except that this provision does not apply
to dismissal or withdrawal of applications pursuant to bona fide merger
agreements:
(2) The exact nature and amount of any consideration received or
promised;
(3) An itemized accounting of the expenses for which it seeks
reimbursement; and
(4) The terms of any oral agreement related to the withdrawal or
dismissal of the application, petition to deny, informal objection, or
other pleading or threat to file a pleading.
(c) In addition, within five (5) days of the filing date of the
applicant's or petitioner's request for approval, each remaining party
to any written or oral agreement must submit an affidavit setting
forth:
(1) A certification that neither the applicant nor its principals
has paid or will pay money or other consideration in excess of the
legitimate and prudent expenses of the petitioner in exchange for
withdrawing or dismissing the application, petition to deny, informal
objection, or other pleading; and
(2) The terms of any oral agreement relating to the withdrawal or
dismissal of the application, petition to deny, informal objection, or
other pleading.
(d) No person shall make or receive any payments in exchange for
withdrawing a threat to file or refraining from filing a petition
against an application. For purposes of this section, reimbursement by
an applicant of the legitimate and prudent expenses of a potential
petitioner or objector, incurred reasonably and directly in preparing
to file a petition to deny, will not be considered to be payment for
refraining from filing a petition to deny or an informal objection.
Payments made directly to a potential petitioner or objector, or a
person related to a potential petitioner or objector, to implement non-
financial promises are prohibited unless specifically approved by the
Commission.
(e) For purposes of this section:
(1) Affidavits filed pursuant to this section must be executed by
the filing party, if an individual, a partner having personal knowledge
of the facts, if a partnership, or an officer having personal knowledge
of the facts, if a corporation or association.
(2) Applications, petitions to deny, informal objections, and other
pleadings are deemed to be pending before the Commission from the time
the application or petition to deny is filed with the Commission until
such time as an order of the Commission granting, denying, or
dismissing the application, petition to deny, informal objection, or
other pleading is no longer subject to reconsideration by the
Commission or to review by any court.
(3) ``Legitimate and prudent expenses'' are those expenses
reasonably incurred by a party in preparing to file, filing,
prosecuting and/or settling its application, petition to deny, informal
objection, or other pleading for which reimbursement is sought.
(4) ``Other consideration'' consists of financial concessions,
including, but not limited to, the transfer of assets or the provision
of tangible pecuniary benefit, as well as non-financial concessions
that confer any type of benefit on the recipient.
Sec. 90.163 Petitions to deny, responsive pleadings.
Petitions to deny any major filing concerning facilities used to
provide commercial mobile radio services may be filed by parties able
to demonstrate standing to file such petitions. Responsive pleadings to
such petitions may be filed in accordance with the provisions of this
section.
(a) Content and requirements. Petitions to deny and responsive
pleadings must:
(1) Clearly identify the pertinent major filing(s);
(2) Comply with all applicable requirements of Secs. 1.41 through
1.52 of this chapter;
(3) Contain specific allegations of fact which, except for facts of
which official notice may be taken, are supported by affidavit of a
person or persons with personal knowledge thereof, and which are
sufficient to demonstrate that the petitioner (or respondent) is a
party in interest and that a grant or other Commission action regarding
the major filing would be inconsistent with the public interest;
(4) Be filed within 30 days after the date of the Public Notice
listing the major filing; and
(5) Contain a certificate of service showing that a copy has been
mailed to the applicant no later than the date of filing with the
Commission.
(b) Expansion. Petitions to deny a major amendment to an
application may raise only matters directly related to the major
amendment that could not have been raised in connection with the
application as originally filed. This paragraph does not apply to
petitioners who gain standing because of the major amendment.
(c) Dismissal. The Commission may, by letter, dismiss any petition
to deny a major filing if the petition does not comply with the
requirements of this section or Sec. 90.161. The reason(s) for the
dismissal must be stated in the letter. When a petition to deny is
dismissed, any related responsive pleadings also are dismissed.
Sec. 90.164 Classification of filings as major or minor.
Applications and amendments to applications are classified as major
or minor when such filings concern facilities used to provide
commercial mobile radio services. Categories of major and minor filings
are listed in section 309 of the Communications Act of 1934, as amended
(47 U.S.C. 309). In general, a major filing is a request for a
Commission action that has the potential to affect parties other than
the applicant. The following are major filings:
(a) Initial station authorization. Filings for an initial
authorization as defined in Sec. 90.165(d)(2) are major.
(b) Ownership or control change. Filings are major if they specify
a substantial change in beneficial ownership or control (de jure or de
facto), unless such change is involuntary or if the filing merely
amends an application to reflect a change in ownership or control that
has already been approved by the Commission.
(c) Renewal. Applications for renewal of authorizations are major.
(d) Environmental. Filings are major if they request authorization
for a facility that would have a significant environmental effect, as
defined by Secs. 1.1301 through 1.1319 of this chapter.
(e) In the Specialized Mobile Radio Service, in addition to filings
listed in paragraphs (a) through (d) of this section, filings are major
if they:
(1) Request a change in frequency;
(2) Request an authorization that would increase the effective
radiated power or antenna height above average terrain in any azimuth
from an existing transmitter authorized to the filer;
(3) Request an authorization that would relocate an existing fixed
transmitter;
(4) Amend a pending application to change a requested frequency;
(5) Amend a pending application in a way that would increase the
proposed effective radiated power or antenna height above average
terrain in any azimuth from an existing transmitter authorized to the
filer;
(6) Amend a pending application to change the location of a fixed
transmitter from that previously proposed in the application; or
(7) Amend a pending application for which pre-filing coordination
was required to change the technical proposal substantially from that
which was coordinated with other users.
Sec. 90.165 Procedures for mutually exclusive applications.
Mutually exclusive commercial mobile radio service applications are
processed in accordance with the rules in this section, except for
mutually exclusive applications for licenses in the 220-220 MHz service
and the 929-930 MHz Paging service, which are processed in accordance
with the rules in subpart P and subpart T of this part.
Two or more pending applications are mutually exclusive if the
grant of one application would effectively preclude the grant of one or
more of the others under Commission rules governing the services
involved.
(a) Separate applications. Any applicant that files an application
knowing that it will be mutually exclusive with one or more
applications should not include in the mutually exclusive application a
request for other channels or facilities that would not, by themselves,
render the application mutually exclusive with those other
applications. Instead, the request for such other channels or
facilities should be filed in a separate application.
(b) Filing groups. Pending mutually exclusive applications are
processed in filing groups. Mutually exclusive applications in a filing
group are given concurrent consideration. The Commission may dismiss as
defective (pursuant to Sec. 90.162) any mutually exclusive
applications(s) whose filing date is outside of the date range for
inclusion in the filing group. The types of filing groups used in day-
to-day application processing are specified in paragraph (c)(3) of this
section. A filing group is one of the following types:
(1) Renewal filing group. A renewal filing group comprises a
timely-filed application for renewal of an authorization and all
timely-filed mutually exclusive competing applications.
(2) Same-day filing group. A same-day filing group comprises all
mutually exclusive applications whose filing date is the same day,
which is normally the filing date of the first-filed applications(s).
(3) Thirty-day notice and cut-off filing group. A 30-day notice and
cut-off filing group comprises mutually exclusive applications whose
filing date is no later than thirty (30) days after the date of the
Public Notice listing the first-filed application(s) (according to the
filing dates) as acceptable for filing.
(4) Window filing group. A window filing group comprises mutually
exclusive applications whose filing date is within an announced filing
window. An announced filing window is a period of time between and
including two specific dates, which are the first and last dates on
which applications (or amendments) for a particular purpose may be
accepted for filing. In the case of a one-day filing window, the two
dates are the same. The dates are made known to the public in advance.
(c) Procedures. Generally, the Commission may grant one application
in a filing group of mutually exclusive applications and dismiss the
other application(s) in the filing group that are excluded by the
grant, pursuant to Sec. 90.162.
(1) Selection methods. In selecting the application to grant, the
Commission may use competitive bidding, random selection, or
comparative hearings, depending on the type of applications involved.
(2) Dismissal of applications. The Commission may dismiss any
application in a filing group that is defective or otherwise subject to
dismissal under Sec. 90.162, either before or after employing selection
procedures.
(3) Type of filing group used. Except as otherwise provided in this
part, the type of filing group used in processing of two or more
mutually exclusive applications depends on the purpose(s) of the
applications.
(i) If one of the mutually exclusive applications is a timely-filed
application for renewal of an authorization, a renewal filing group is
used.
(ii) If any mutually exclusive application filed on the earliest
filing date is an application for modification and none of the mutually
exclusive applications is a timely-filed application for renewal, a
same-day filing group is used.
(iii) If all of the mutually exclusive applications filed on the
earliest filing date are applications for initial authorization, a 30-
day notice and cut-off filing group is used.
(4) Disposition. If there is only one application in any type of
filing group, the Commission may grant that application and dismiss
without prejudice any mutually exclusive applications not in the filing
group. If there is more than one mutually exclusive application in a
filing group, the Commission disposes of these applications as follows:
(i) Applications in a renewal filing group. All mutually exclusive
applications in a renewal filing group are designated for comparative
consideration in a hearing.
(ii) Applications in a 30-day notice and cut-off filing group.
(A) If all of the mutually exclusive applications in a 30-day
notice and cut-off filing group are applications for initial
authorization, the Commission administers competitive bidding
procedures in accordance with subpart Q of part 1 of this chapter.
After such procedures, the application of the successful bidder may be
granted and the other applications may be dismissed without prejudice.
(B) If any of the mutually exclusive applications in a 30-day
notice and cut-off filing group is an application for modification or
an application for facilities, the Commission may attempt to resolve
the mutual exclusivity by facilitating a settlement between the
applicants. If a settlement is not reached within a reasonable time,
the Commission may designate all applications in the filing group for
comparative consideration in a hearing. In this event, the result of
the hearing disposes all of the applications in the filing group.
(iii) Applications in a same-day filing group. If there are two or
more mutually exclusive applications in a same-day filing group, the
Commission may attempt to resolve the mutual exclusivity by
facilitating a settlement between the applicants. If a settlement is
not reached within a reasonable time, the Commission may designate all
applications in the filing group for comparative consideration in a
hearing. In this event, the result of the hearing disposes all of the
applications in the filing group.
(iv) Applications in a window filing group. Applications in a
window filing group are processed in accordance with the procedures for
a 30-day notice and cut-off filing group in paragraph (c)(4)(ii) of
this section.
(d) Terminology. For the purposes of this section, terms have the
following meanings:
(1) The ``filing date'' of an application is the date on which that
application was received in a condition acceptable for filing or the
date on which the most recently filed major amendment to that
application was received, whichever is later, excluding major
amendments in the following circumstances:
(i) The major amendment reflects only a change in ownership or
control found by the Commission to be in the public interest;
(ii) The major amendment as received is defective or otherwise
found unacceptable for filing; or
(iii) The application being amended has been designated for hearing
and the Commission or the presiding officer accepts the major
amendment.
(2) An ``application for initial authorization'' is:
(i) Any application requesting an authorization for a new system or
station;
(ii) Any application requesting authorization for an existing
station to operate on an additional channel, unless the additional
channel is for paired two-way radiotelephone operation, is in the same
frequency range as the existing channel(s), and will be operationally
integrated with the existing channel(s) such as by trunking; or
(iii) any application requesting authorization for a new
transmitter at a location more than 2 kilometers (1.2 miles) from any
existing transmitters of the applicant licensee on the requested
channel or channel block.
(3) An ``application for modification'' is any application other
than an application for initial authorization or renewal.
Sec. 90.166 Grants of applications.
Applications for a commercial mobile radio service authorization
under this part may be granted thirty (30) days after the issuance date
of a Pubic Notice listing an application or the latest filed major
amendment thereto as acceptable for filing.
(a) Criteria for grants. The Commission grants applications without
a hearing if, after examination of the application and consideration of
any petitions or other pleadings and of such other matters as it may
officially notice, the Commission finds that:
(1) A grant will serve the public interest, convenience, and
necessity;
(2) There are no substantial and material questions of fact
presented;
(3) The applicant is eligible and qualified under applicable
Commission regulations and policies;
(4) The application is acceptable for filing, and complies with the
Commission rules and other applicable requirements;
(5) The application has not been designated for a hearing after
being selected in a random selection process;
(6) There are no applications entitled to comparative consideration
with the application being granted; and
(7) Operation of the proposed station would not cause interference
to any authorized station(s).
(b) Grant of petitioned applications. The Commission may grant,
without a formal hearing, applications against which petitions to deny
have been filed. If any petition(s) to deny are pending (i.e., have not
been dismissed pursuant to Sec. 90.161 or withdrawn by the petitioner)
when an application is granted, the Commission shall deny the
petition(s) and issue a concise statement of the reason(s) for the
denial, disposing of all substantive issues raised in the petitions.
(c) Partial and conditional grants. The Commission may grant
applications in part, and/or subject to conditions other than those
normally applied to authorizations of the same type. When the
Commission does this, it will inform the applicant of the reasons
therefor. Such partial or conditional grants are final unless the
Commission revises its action in response to a petition for
reconsideration. Such petitions for reconsideration must be filed by
the applicant within thirty days after the date of the letter or order
stating the reasons for the partial or conditional grant, and must
reject the partial or conditional grant and return the instrument of
authorization.
(d) Designation for hearing. The Commission may designate
applications for a hearing, specifying with particularity the matters
in issue, if, after consideration of the application, any petitions or
other pleadings, and other matters which it may officially notice, the
Commission is unable to make one or more of the findings listed in
paragraph (a) of this section. The Commission may grant, deny, or take
other action with respect to applications designated for a hearing.
Sec. 90.167 Time in which a station must commence service.
(a) Unless otherwise specified in this part, all 220-222 MHz,
private carrier paging, Business Radio, and SMR licensees must commence
service within twelve (12) months from the date of grant or the
authorization cancels automatically and must be returned to the
Commission.
(b) For purposes of this section, a station licensed to provide
commercial mobile radio service is not considered to have commenced
service unless it provides service to at least one unaffiliated party.
(c) Application for extension of time to commence service may be
made on Commission Form 600. Extensions of time must be filed prior to
the expiration of the construction period. Extensions will be granted
only if the licensee shows that the failure to commence service is due
to causes beyond his or her control. No extensions will be granted for
delays caused by lack of financing, lack of site availability, for the
assignment or transfer of control of an authorization, or for failure
to timely order equipment. If the licensee orders equipment within 90
days of the license grant, a presumption of due diligence is created.
(d) An application for modification of an authorization (under
construction) at the existing location does not extend the initial
construction period. If additional time to commence service is
required, a request for such additional time must be submitted on
Commission Form 600, either separately or in conjunction with the
submission of the Commission Form 600 requesting modification.
Sec. 90.168 Equal employment opportunities.
Commercial Mobile Radio Services licensees shall afford equal
opportunity in employment to all qualified persons, and personnel must
not be discriminated against in employment because of sex, race, color,
religion, or national origin.
(a) Equal employment opportunity program. Each licensee shall
establish, maintain, and carry out a positive continuing program of
specific practices designed to assure equal opportunity in every aspect
of employment policy and practice.
(1) Under the terms of its program, each licensee shall:
(i) Define the responsibility of each level of management to insure
a positive application and vigorous enforcement of the policy of equal
opportunity, and establish a procedure to review and control managerial
and supervisory performance.
(ii) Inform its employees and recognized employee organizations of
the positive equal employment opportunity policy and program and enlist
their cooperation.
(iii) Communicate its equal employment opportunity policy and
program and its employment needs to sources of qualified applicants
without regard to sex, race, color, religion or national origin, and
solicit their recruitment assistance on a continuing basis.
(iv) Conduct a continuing campaign to exclude every form of
prejudice or discrimination based upon sex, race, color, religion, or
national origin, from the licensee's personnel policies and practices
and working conditions.
(v) Conduct a continuing review of job structure and employment
practices and adopt positive recruitment, training, job design and
other measures needed in order to insure genuine equality of
opportunity to participate fully in all organizational units,
occupations and levels of responsibility.
(2) The program must reasonably address specific concerns through
policies and actions as set forth in this paragraph, to the extent that
they are appropriate in consideration of licensee size, location and
other factors.
(i) To assure nondiscrimination in recruiting.
(A) Posting notices in the licensee's offices informing applicants
for employment of their equal employment rights and their right to
notify the Equal Employment Opportunity Commission (EEOC), the Federal
Communications Commission (Commission), or other appropriate agency.
Where a substantial number of applicants are Spanish-surnamed
Americans, such notice should be posted in both Spanish and English.
(B) Placing a notice in bold type on the employment application
informing prospective employees that discrimination because of sex,
race, color, religion, or national origin is prohibited, and that they
may notify the EEOC, the Commission, or other appropriate agency if
they believe they have been discriminated against.
(C) Placing employment advertisements in media which have
significant circulation among minority groups in the recruiting area.
(D) Recruiting through schools and colleges with significant
minority group enrollments.
(E) Maintaining systematic contacts with minority and human
relations organizations, leaders and spokespersons to encourage
referral of qualified minority or female applicants.
(F) Encouraging present employees to refer minority or female
applicants.
(G) Making known to the appropriate recruitment sources in the
employer's immediate area that qualified minority members are being
sought for consideration whenever the licensee hires.
(ii) To assure nondiscrimination in selection and hiring.
(A) Instructing employees of the licensee who make hiring decisions
that all applicants for all jobs are to be considered without
discrimination.
(B) Where union agreements exist, cooperating with the union or
unions in the development of programs to assure qualified minority
persons or females of equal opportunity for employment, and including
an effective nondiscrimination clause in new or renegotiated union
agreements.
(C) Avoiding use of selection techniques or tests that have the
effect of discriminating against minority groups or females.
(iii) To assure nondiscriminatory placement and promotion.
(A) Instructing employees of the licensee who make decisions on
placement and promotion that minority employees and females are to be
considered without discrimination, and that job areas in which there is
little or no minority or female representation should be reviewed to
determine whether this results from discrimination.
(B) Giving minority groups and female employees equal opportunity
for positions which lead to higher positions. Inquiring as to the
interest and skills of all lower-paid employees with respect to any of
the higher-paid positions, followed by assistance, counseling, and
effective measures to enable employees with interest and potential to
qualify themselves for such positions.
(C) Reviewing seniority practices to insure that such practices are
nondiscriminatory and do not have a discriminatory effect.
(D) Avoiding use of selection techniques or tests that have the
effect of discriminating against minority groups or females.
(iv) to assure nondiscrimination in other areas of employment
practices.
(A) Examining rates of pay and fringe benefits for present
employees with equivalent duties and adjusting any inequities found.
(B) Providing opportunity to perform overtime work on a basis that
does not discriminate against qualified minority groups or female
employees.
(b) EEO statement. Each licensee having sixteen (16) or more full-
time employees shall file with the Commission, no later than May 31st
following the grant of that licensee's first Commercial Mobile Radio
Services authorization, a statement describing fully its current equal
employment opportunity program, indicating specific practices to be
followed in order to assure equal employment opportunity on the basis
of sex, race, color, religion, or national origin in such aspects of
employment practices as regards recruitment, selection, training,
placement, promotion, pay, working conditions, demotion, layoff, and
termination. Any licensee having sixteen (16) or more full-time
employees that changes its existing equal employment opportunity
program shall file with the Commission, no later than May 31st
thereafter, a revised statement reflecting the change(s).
Note: Commercial mobile radio service licensees having sixteen
(16) or more full-time employees that do not have a current EEO
statement on file with the Commission as of January 2, 1995, must
file the statement required by this paragraph no later than May 31,
1995.
(c) Report of complaints filed against licensees. Each licensee,
regardless of how many employees it has, shall submit an annual report
to the Commission no later than May 31st of each year indicating
whether any complaints regarding violations by the licensee or equal
employment provisions of Federal, State, Territorial, or local law have
been filed before anybody having competent jurisdiction.
(1) The report should state the parties involved, the date filing,
the courts or agencies before which the matters have been heard, the
appropriate file number (if any), and the respective disposition or
current status of any such complaints.
(2) Any licensee who has filed such information with the EEOC may
file a notification of such filing with the Commission in lieu of a
report.
(d) Complaints of violations of Equal Employment Programs.
Complaints alleging employment discrimination against a common carrier
licensee are considered by the Commission in the following manner:
(1) If a complaint raising an issue of discrimination is received
against a licensee who is within the jurisdiction of the EEOC, it is
submitted to that agency. The Commission maintains a liaison with that
agency that keeps the Commission informed of the disposition of
complaints filed against common carrier licensees.
(2) Complaints alleging employment discrimination against a common
carrier licensee who does not fall under the jurisdiction of the EEOC
but is covered by appropriate enforceable State law, to which penalties
apply, may be submitted by the Commission to the respective State
agency.
(3) Complaints alleging employment discrimination against a common
carrier licensee who does not fall under the jurisdiction of the EEOC
or an appropriate State law, are accorded appropriate treatment by the
Commission.
(4) The Commission will consult with the EEOC on all matters
relating to the evaluation and determination of compliance by the
common carrier licensees with the principles of equal employment as set
forth herein.
(5) Complaints indicating a general pattern of disregard of equal
employment practices which are received against a licensee that is
required to file an employment report to the Commission under
Sec. 1.815(a) of this chapter are investigated by the Commission.
(e) Commission records. A copy of every annual employment report,
equal employment opportunity program statement, reports on complaints
regarding violation of equal employment provisions of Federal, State,
Territorial, or local law, and copies of all exhibits, letters, and
other documents filed as part thereof, all amendments thereto, all
correspondence between the licensee and the Commission pertaining to
the reports after they have been filed and all documents incorporated
therein by reference, are open for public inspection at the offices of
the Commission.
(f) Licensee records. Each licensee required to file annual
employment reports (pursuant to Sec. 1.815(a) of this chapter), equal
employment opportunity program statements, and annual reports on
complaints regarding violations of equal employment provisions of
Federal, State, Territorial, or local law shall maintain for public
inspection a file containing a copy of each such report and copies of
all exhibits, letters, and other documents filed as part thereto, all
correspondence between the licensee and the Commission pertaining to
the reports after they have been filed and all documents incorporated
therein by reference. The documents must be retained for a period of
two (2) years.
Sec. 90.169 Construction prior to grant of application.
Applicants may construct facilities prior to grant of their
applications, subject to the provisions of this section, but must not
operate such facilities until the Commission grants an authorization.
If the conditions stated in this section are not met, applicants must
not begin to construct facilities.
(a) When applicants may begin construction. An applicant may begin
construction of a facility thirty-five (35) days after the date of the
Public Notice listing the application for that facility as acceptable
for filing.
(b) Notification to stop. If the Commission for any reason
determines that construction should not be started or should be stopped
while an application is pending, and so notifies the applicant, orally
(followed by written confirmation) or in writing, the applicant must
not begin construction or, if construction has begun, must stop
construction immediately.
(c) Assumption of risk. Applicants that begin construction pursuant
to this section before receiving an authorization do so at their own
risk and have no recourse against the United States for any losses
resulting from:
(1) Applications that are not granted;
(2) Errors or delays in issuing Public Notices;
(3) Having to alter, relocate, or dismantle the facility; or
(4) Incurring whatever costs may be necessary to bring the facility
into compliance with applicable laws, or Commission rules and orders.
(d) Conditions. Except as indicated, all pre-grant construction is
subject to the following conditions:
(1) The application is not mutually exclusive with any other
application;
(2) No petitions to deny the application have been filed;
(3) The application does not include a request for a waiver of one
or more Commission rules;
(4) For any construction or alteration that would exceed the
requirements of Sec. 17.7 of this chapter, the licensee has notified
the appropriate Regional Office of the Federal Aviation Administration
(FAA Form 7460-1), filed a request for antenna height clearance and
obstruction marking and lighting specifications (FCC Form 854) with the
Commission;
(5) The applicant has indicated in the application that the
proposed facility would not have a significant environmental effect, in
accordance with Secs. 1.1301 through 1.1319 of this chapter; and,
(6) Under applicable international agreements and rules in this
part, individual coordination of the proposed channel assignment(s)
with a foreign administration is not required.
24. Section 90.179 is amended by adding a new paragraph (g) to read
as follows:
Sec. 90.179 Shared use of radio stations.
* * * * *
(g) The provisions of this section do not apply to licensees
authorized to provide commercial mobile radio service under this part.
25. Section 90.403 is amended by revising paragraph (c) to read as
follows:
Sec. 90.403 General operating requirements.
* * * * *
(c) Except for stations that have been granted exclusive channels
under this part and that are classified as commercial mobile radio
service providers pursuant to part 20 of this chapter, each licensee
must restrict all transmissions to the minimum practical transmission
time and must employ an efficient operating procedure designed to
maximize the utilization of the spectrum.
* * * * *
26. Section 90.405 is amended by revising paragraph (b) to read as
follows:
Sec. 90.405 Permissible communications.
* * * * *
(b) The provisions contained in paragraph (a) of this section do
not apply where a single base station licensee has been authorized to
use a channel above 470 MHz on an exclusive basis, or to stations
licensed under this part that are classified as CMRS providers under
part 20 of this chapter.
27. Section 90.415 is amended by revising paragraph (b) to read as
follows:
Sec. 90.415 Prohibited uses.
* * * * *
(b) Render a communications common carrier service, except for
stations in the Special Emergency Radio Service providing
communications standby facilities under Sec. 90.49, operational fixed
stations licensed in the Railroad Radio Service handling public
telegraph messages as agents of telegraph common carriers in those
instances where such public telegraph service cannot be provided
through other railroad facilities, and stations licensed under this
part in the SMR, private carrier paging, Business Radio, or 220-222 MHz
services.
28. Section 90.425 is amended by adding paragraph (e) to read as
follows:
Sec. 90.425 Station identification.
* * * * *
(e) Special provisions for stations licensed under this part that
are classified as CMRS providers under part 20 of this chapter.
(1) Station identification will not be required for 929-930 MHz
nationwide paging licensees and MTA-based SMR licensees. All other CMRS
stations will be required to comply with the station identification
requirements of paragraphs (a) through (d) of this section.
(2) CMRS stations subject to a station identification requirement
will be permitted to use a single call sign for commonly owned
facilities that are operated as part of a single system. The call sign
must be transmitted each hour within five minutes of the hour, or upon
completion of the first transmission after the hour.
(3) CMRS stations granted exclusive channels may transmit their
call signs digitally. The station licensee must provide the Commission
with information sufficient to decode the digital transmission to
ascertain the transmitted call sign.
29. Section 90.437 is amended by revising paragraphs (b) and (c) to
read as follows:
Sec. 90.437 Posting station licenses.
* * * * *
(b) Entities authorized under this part must make available either
a clearly legible photocopy of the authorization for each base or fixed
station at a fixed location at every control point of the station or an
address or location where the current authorization may be found.
(c) Entities operating under a temporary permit authorized in
accordance with Sec. 90.159 shall post an executed copy of the Form 572
at every control point of the system or an address or location where
the current executed copy may be found.
* * * * *
30. Section 90.449 is revised to read as follows:
Sec. 90.449 Answers to official communications and notices of
violation.
(a) Licensees are required to respond to official communications
with reasonable dispatch and according to the tenor of the
communication. Failure to do so may be considered by the Commission to
reflect adversely on a person's qualifications to hold Commission
authorizations and may also create liabilities for other sanctions.
(b) Any licensee receiving official notice of a violation of the
terms of the Communications Act of 1934, as amended, any legis
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