Implementation of Sections 3(n) and 332 of the Communications Act Regarding Regulatory Treatment of Mobile Services
Federal RegisterApr 19, 1994
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 20, 22, 24, 80, 90, 99
[GN Docket No. 93-252; FCC 94-31]
Implementation of Sections 3(n) and 332 of the Communications Act
Regarding Regulatory Treatment of Mobile Services
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: This rule making proceeding adopts rules to implement sections
3(n) and 332 of the Communications Act of 1934 (the Act), as amended by
section 6000(b) of the Omnibus Budget Reconciliation Act of 1993
(Budget Act). The new rules adopted: interpret the elements that define
the terms ``commercial mobile radio service (CMRS)'' and ``private
mobile radio service (PMRS);'' based on these definitions, determine
the regulatory status of existing mobile services and of personal
communications services (PCS); address the degree to which those
services that will be classified as CMRS will be subject to regulation
under Title II of the Act; and address the other issues, including
interconnection rights and preemption of state regulatory authority
over mobile service providers. The Commission's action furthers the
congressional objectives of ensuring that similar services are subject
to consistent regulatory classification and that appropriate levels of
regulation be established for CMRS providers. The Commission's action
establishes a symmetrical regulatory structure that will promote
competition in the mobile services marketplace and will serve the
interests of consumers while also benefiting the national economy.
EFFECTIVE DATE: July 18, 1994.
FOR FURTHER INFORMATION CONTACT:
Nancy Boocker (202) 632-6450 or Judy Argentieri (202) 632-6917 in the
Common Carrier Bureau or David Furth (202) 634-2443 in the Private
Radio Bureau.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second
Report and Order in GN Docket No. 93-252, adopted February 3, 1994 and
released March 7, 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
------------------------------------------------------------------------
20.9(a)(13)................................... 2 15
20.9(b)....................................... 2 20
20.9(b)(2).................................... 2 10
20.13(a)...................................... 40 10
20.13(a)(5)................................... 2 20
20.13(b)...................................... 40 10
20.13(c)...................................... 2 10
20.15(c)...................................... 1 1,200
------------------------------------------------------------------------
Total Annual Burden: 2,150.
Frequency of Response: On occasion.
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 this burden estimate or any other aspect of
this collection of information, including suggestions for reducing the
burden, to the Federal Communications Commission, Records Management
Division, 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 this decision, which may be obtained from the
Commission or its copy contractor.
Pursuant to section 603 of title 5, United States Code, 5 U.S.C.
603, an initial Regulatory Flexibility Analysis was incorporated in the
Notice of Proposed Rulemaking in GN Docket No. 93-252. Written comments
on the proposals in the Notice, including the Regulatory Flexibility
Analysis, 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. The rules adopted herein will
carry out the intent of Congress to establish a uniform regulatory
framework for all mobile services.
B. Issues Raised by the Public in Response to the Initial Analysis
While all the parties recognize that this rulemaking will impose
new legal obligations on licensees whose regulatory status has changed
from private to commercial as a result of the new legislation and the
actions we have taken in this Order, a number of parties propose that
licensees should be able to offer both commercial and private radio
service on the same system and under a single license. As a result of
these comments, we have adopted these proposals. As a result of other
comments, we have made modifications to other proposals as appropriate.
C. Significant Alternatives Considered
We have reduced the burdens wherever possible. In an effort to
reduce the burdens on small entities, for example, we will not impose
any tariff filing obligations. In addition, we emphasize that the
three-year transition rules adopted in this Order will allow existing
licensees that are subject to reclassification as CMRS providers to
continue to be regulated as private until August 10, 1996. This three-
year period will ensure an orderly transition for all reclassified
private licensees that are small entities.
Synopsis of the Second Report and Order
On September 23, 1993, the Commission adopted a Notice of Proposed
Rule Making (Notice), 58 FR 53169 (October 14, 1993), in this
proceeding in which we sought comment on: (1) The definitional issues
raised in the Budget Act; (2) which existing mobile services and future
mobile services should be classified as ``commercial mobile radio
service'' under the statute and which should be classified as ``private
mobile radio services''; and (3) which provisions of Title II of the
Communications Act should not be applied to CMRS. We received 76
comments and 52 reply comments in response to the Notice in this
proceeding.
In summarizing the actions the Commission has taken in this Order,
the following points highlight the decisions made to implement the
objectives of Congress in amending section 332 of the Act. First, the
Order gives a comprehensive scope to the term ``mobile service,''
including within the definition all public mobile services, private
land mobile service, mobile satellite services, and most marine and
aviation wireless services.
Second, the Order defined the term ``commercial mobile radio
service'' in a manner that covers a significant portion of services
provided by mobile carriers because of the conclusion that such a
definition best serves the congressional purpose of making mobile
services widely available at reasonable rates and on reasonable terms
in a competitive marketplace. There are three prongs to the CMRS
definition: The service must be provided for profit, it must be
interconnected to the public switched network, and it must be available
to the public or to such classes of eligible users as to be effectively
available to a substantial portion of the public. Under the first
element of the definition, the Order provides that ``for profit''
includes any mobile service that is provided with the intent of
receiving compensation or monetary gain. In the case of services that
are not-for-profit, except for a portion of excess capacity that the
licensee offers with the intent of receiving compensation, the service
will be treated as for-profit to the extent of such excess capacity
activities.
Under the second element of the CMRS definition, the Order
concludes that a mobile service offers interconnected service if it
allows subscribers to send or receive messages to or from anywhere on
the public switched network (PSN). Both direct and indirect
interconnection with the PSN satisfy this criterion, as well as the use
of store-and-forward technology. The Order also gives an expansive
meaning to the term public switch network, concluding that the network
includes the facilities of common carriers that participate in the
North American Numbering Plan and having switching capability.
Under the third prong of the definition, the Order decides that
service made available ``to the public'' means any service that is
offered without restriction on who may receive it. The Order also
concludes that whether a service is offered to ``such classes of
eligible users as to be effectively available to a substantial portion
of the public'' depends on several relevant factors, such as the type,
nature, and scope of users for whom the service is intended. The
Commission decided not to consider limited system capacity or coverage
of small geographic areas as factors in restricting system
availability. If a service is provided only for internal use or only to
a specified class of eligible users under the Commission's rules, then
the Order concludes that the service will not meet the ``public
availability'' prong of the CMRS definition.
Third, the Order interpreted the term ``private mobile radio
service'' by closely adhering to the statutory definition, and with the
aim of advancing the congressional objective of applying a symmetrical
regulatory framework to mobile services. The Order determines that the
statutory language and the legislative history support the conclusion
that a mobile service may be classified as PMRS only if it does not
fall within the statutory definition of CMRS and is not the functional
equivalent of a service that meets the three-part definition of CMRS.
Those services that are classified as PMRS will, however, be presumed
PMRS unless it is demonstrated that the service is the functional
equivalent of CMRS. In applying the functional equivalence test, the
Order considers a variety of factors, including whether the mobile
service involved is a close substitute for any CMRS offering as
evidenced by the cross-price elasticity of demand.
Fourth, applying the definitions discussed above, the Order
classifies existing private land mobile services and common carrier
services. For example, all existing Government and Public Safety
Services (including the Special Emergency Radio Service) and all
Industrial and Land Transportation Services other than certain Business
Radio Service are classified as PMRS. The Order also classifies
Automatic Vehicle Monitoring as a private mobile radio service.
In the Business Radio Service, which has a broader range of
eligible users than other Industrial and Land Transportation services,
the Order classifies Business Radio licensees who provide for-profit
interconnected service to third-party users as CMRS. Business Radio
licensees who operate not-for-profit internal systems, or who do not
offer interconnected service, are classified as private.
The Order classifies Specialized Mobile Radio (SMR) licensees as
CMRS if they offer interconnected service to customers. In addition,
private carrier paging (PCP) services are classified as CMRS because
they fit the statutory definition of CMRS. The Order concludes,
however, those PCP systems that service the licensee's internal
communications needs and do not offer for-profit service to third-party
customers will be classified as PMRS. The Order classifies 220-222 MHz
private land mobile systems using the same approach taken by the Order
for classifying SMR and PCP licensees.
Finally, with respect to existing common carrier services, the
Order classifies as CMRS: Cellular service, 800 MHz air-ground service,
common carrier paging service, mobile telephone service, improved
mobile telephone service, trunked mobile telephone service, 454 MHz
air-ground service, and Offshore Radio Service.
With respect to mobile satellite service, the Order concludes that
the Commission will exercise its discretion under the statute to
determine whether the provision of space segment capacity by satellite
licensees may be treated as common carriage. Lastly, the Order
concludes that the Commission will seek further comment in a subsequent
proceeding on whether it should remove existing restrictions that bar
CMRS providers from offering dispatch service.
Fifth, the Order determines that personal communications services
(PCS) should be classified presumptively as CMRS. Under this approach,
a PCS applicant or licensee would be regulated as a CMRS carrier, but
would be able to offer private PCS and be regulated as PMRS, upon
making the requisite showing. The Order concludes that treating PCS as
presumptively CMRS most suits the manner in which the Commission has
defined PCS, and the four goals that the Commission established for the
service--speed of deployment, universality, competitive delivery, and
diversity of services.
Sixth, the Order states that the Commission has decided to exercise
its forbearance authority regarding several Title II provisions in
order to maximize market competition. The Order finds that the
Commission's forbearance actions will promote competition, and that
application of the three-pronged test set forth in section 332(c) of
the Act warrants forbearance from many Title II provisions. In general,
the Commission has forborne from enforcing any tariffing requirements,
and from exercising Commission authority to investigate into existing
and newly filed rates and practices, to collect intercarrier contracts,
to require certification concerning interlocking directorates, and to
require Commission approval relating to market entry and exit
(respectively, sections 203, 204, 205, 211, 212, and 214 of the Act).
The Commission, however, did not forbear from provisions that are
unrelated to Commission authority and regulatory obligations (section
210), are primarily reservations of Commission authority (sections 213,
215, 218, 219, and 221), or are consumer protection-related (sections
223, 225, 226, 227, and 228). In addition, in the case of cellular
service, the Order states that the Commission will shortly issue a
Notice of Proposed Rule Making to establish monitoring provisions
applicable to the cellular marketplace. The Order further provides that
the Commission will issue a Notice of Proposed Rule Making addressing
whether the Commission should adopt further forbearance actions under
Title II of the Act in the case of specified classes of CMRS providers.
Seventh, the Order requires local exchange carriers (LECs) to
provide reasonable and fair interconnection for all CMRS because the
Commission sees no distinction between cellular carriers to whom LECs
are currently required to provide such interconnection and all other
CMRS providers, including PCS providers. The Order also provides that
if a LEC provides interconnection to CMRS providers while denying the
same interconnection to PMRS providers, the carrier would bear the
burden of demonstrating why such practice does not constitute a
violation of Title II of the Act.
Eighth, the Order concludes that Congress, in revising section 332,
intended to preempt state and local rate and entry regulation of all
CMRS. The Order establishes a range of procedural and other
requirements states must meet if they seek to retain any existing CMRS
rate regulation or initiate such rate regulation for the first time.
Finally, the Order implements provisions of the Budget Act that
establish effective dates for the ``regulatory treatment'' amendment to
the Communications Act and set forth deadlines for an orderly
transition to the changed regulatory structure. The Budget Act
established a three-year transition period during which ``any private
land mobile service provided by any person before such date of
enactment, and any paging service utilizing frequencies allocated as of
January 1, 1993, for private land mobile service shall * * * be treated
as private mobile service.'' With respect to private land mobile
services, the Order interprets this language to mean that the three-
year transition applies to all private land mobile licensees who were
licensed, and therefore authorized to provide service, as of August 10,
1993. On the other hand, the Order provides that private mobile
licensees who are subject to reclassification as CMRS and were not
licensed as of the enactment date of the Budget Act, are not subject to
the three-year ``grandfathering'' period, and will therefore be treated
as CMRS as soon as the Commission's rules go into effect.
The Commission concluded that Congress did not intend the
transition period to apply in a rigid fashion to pre-enactment
licensees and that it did intend some flexibility in the implementation
of these transition provisions. The Commission determined, therefore,
that it will allow grandfathered licensees to modify and expand
existing systems and to acquire additional licenses in the same service
for which they were licensed prior to August 10, 1993. In addition,
with respect to non-grandfathered licensees, the Commission concluded
that reclassification should be effective upon the effective date of
the Commission's transitional rules for reclassified services; these
rules will be considered in a separate rule making.
With respect to paging services, the Order finds that the
transition period applies more broadly. The Commission concluded that
Congress specifically provided that all paging licensees ``utilizing''
private paging frequencies allocated as of January 1, 1993, are to be
treated as private mobile radio service providers for three years. The
Commission noted that the Conference Report accompanying the Budget Act
explains that paging was treated separately to prevent states from
attempting to restrict entry of paging licensees on private frequencies
prior to the effective date of the Commission's preemption regulations,
which do not go into effect until August 10, 1994. The Commission
concluded that all private paging licensees are to be treated as
private mobile service providers, regardless of whether they were
licensed before or after the date of enactment.
Ordering Clauses
Accordingly, it is ordered that the rule changes made, as specified
below, will become effective 90 days after publication in the Federal
Register, 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. Secs. 154(i), 154(j), 157(a), 302, 303(c),
303(f), 303(g), 303(r), 332(c), 332(d).
It is further ordered, pursuant to sections 4(i), 4(j), and
332(c)(1)(A) of the Communications Act, 47 U.S.C. 154(i), 154(j),
332(c)(1)(A), that all commercial mobile radio service providers with
tariffs on file with the Commission shall cancel such tariffs.
Cancellation shall be by supplement effective upon five days' notice
and the supplement shall reference this Order as authority for
cancellation. For this purpose, Secs. 61.58 and 61.59 of the
Commission's rules, 47 CFR 61.58, 61.59, are waived. These
cancellations shall be filed no later than July 18, 1994.
It is further ordered that the Petition for Special Relief
Concerning Enhanced Mobile Radio Applications and Authorizations filed
by Bell Atlantic Mobile Systems, Inc., is denied.
List of Subjects
47 CFR Part 20
Commercial mobile radio services; Radio.
47 CFR Part 22
Public mobile services; Radio.
47 CFR Part 80
Maritime services; Radio.
47 CFR Part 90
Private land mobile services; Radio.
47 CFR Part 99
Personal communications services; Radio.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Adoption of Amendments
47 CFR parts 20, 22, 80, 90, and 99 are amended as follows:
PART 20--COMMERCIAL MOBILE RADIO SERVICES
1. Part 20 is added to read as follows:
Sec.
20.1 Purpose.
20.3 Definitions.
20.5 Citizenship.
20.7 Mobile services.
20.9 Commercial mobile radio service.
20.11 Interconnection to facilities of local exchange carriers.
20.13 State petitions for authority to regulate rates.
20.15 Requirements under Title II of the Communications Act.
Authority: Secs. 4, 303, and 332, 48 Stat. 1066, 1082, as
amended; 47 U.S.C. 154, 303, and 332, unless otherwise noted.
Sec. 20.1 Purpose.
The purpose of these rules is to set forth the requirements and
conditions applicable to commercial mobile radio service providers.
Sec. 20.3 Definitions.
Commercial mobile radio service. A mobile service that is: (a)(1)
provided for profit, i.e., with the intent of receiving compensation or
monetary gain;
(2) An interconnected service; and
(3) Available to the public, or to such classes of eligible users
as to be effectively available to a substantial portion of the public;
or
(b) The functional equivalent of such a mobile service described in
paragraph (a) of this section.
Interconnection or Interconnected. Direct or indirect connection
through automatic or manual means (by wire, microwave, or other
technologies such as store and forward) to permit the transmission or
reception of messages or signals to or from points in the public
switched network.
Interconnected Service. A service: (a) That is interconnected with
the public switched network, or interconnected with the public switched
network through an interconnected service provider, that gives
subscribers the capability to communicate to or receive communication
from all other users on the public switched network; or
(b) For which a request for such interconnection is pending
pursuant to section 332(c)(1)(B) of the Communications Act, 47 U.S.C.
332(c)(1)(B). A mobile service offers interconnected service even if
the service allows subscribers to access the public switched network
only during specified hours of the day, or if the service provides
general access to points on the public switched network but also
restricts access in certain limited ways. Interconnected service does
not include any interface between a licensee's facilities and the
public switched network exclusively for a licensee's internal control
purposes.
Mobile Service. A radio communication service carried on between
mobile stations or receivers and land stations, and by mobile stations
communicating among themselves, and includes:
(a) Both one-way and two-way radio communications services;
(b) A mobile service which provides a regularly interacting group
of base, mobile, portable, and associated control and relay stations
(whether licensed on an individual, cooperative, or multiple basis) for
private one-way or two-way land mobile radio communications by eligible
users over designated areas of operation; and
(c) Any service for which a license is required in a personal
communications service under part 24 of this chapter.
Private Mobile Radio Service. A mobile service that is neither a
commercial mobile radio service nor the functional equivalent of a
service that meets the definition of commercial mobile radio service.
Private mobile radio service includes the following:
(a) Not-for-profit land mobile radio and paging services that serve
the licensee's internal communications needs as defined in part 90 of
this chapter. Shared-use, cost-sharing, or cooperative arrangements,
multiple licensed systems that use third party managers or users
combining resources to meet compatible needs for specialized internal
communications facilities in compliance with the safeguards of
Sec. 90.179 of this chapter are presumptively private mobile radio
services;
(b) Mobile radio service offered to restricted classes of eligible
users. This includes the following services: Public Safety Radio
Services; Special Emergency Radio Service; Industrial Radio Services
(excluding Business Radio Services that offer customers for-profit
interconnected services); Land Transportation Radio Services; and
Radiolocation Services;
(c) 220-222 MHz land mobile service and Automatic Vehicle
Monitoring systems (part 90 of this chapter) that do not offer
interconnected service or that are not-for-profit; and
(d) Personal Radio Services under part 95 of this chapter (General
Mobile Services, Radio Control Radio Services, and Citizens Band Radio
Services); Maritime Service Stations (excluding Public Coast stations)
(part 80 of this chapter); and Aviation Service Stations (part 87 of
this chapter).
Public Switched Network. Any common carrier switched network,
whether by wire or radio, including local exchange carriers,
interexchange carriers, and mobile service providers, that use the
North American Numbering Plan in connection with the provision of
switched services.
Sec. 20.5 Citizenship.
(a) This rule implements section 310 of the Communications Act, 47
U.S.C. 310, regarding the citizenship of licensees in the commercial
mobile radio services. Commercial mobile radio service authorizations
may not be granted to or held by:
(1) Any foreign government or any representative thereof;
(2) Any alien or the representative of any alien;
(3) Any corporation organized under the laws of any foreign
government;
(4) Any 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; or
(5) Any 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.
(b) The limits listed in paragraph (a) of this section may be
exceeded by eligible individuals who held ownership interests on May
24, 1993, pursuant to the waiver provisions established in section
332(c)(6) of the Communications Act. Transfers of ownership to any
other person in violation of paragraph (a) of this section are
prohibited.
Sec. 20.7 Mobile services.
The following are mobile services within the meaning of sections
3(n) and 332 of the Communications Act, 47 U.S.C. 153(n), 332.
(a) Public mobile services (part 22 of this chapter), including
fixed operations that support the mobile systems, but excluding Rural
Radio Service and Basic Exchange Telecommunications Radio Service (part
22, subpart H of this chapter);
(b) Private land mobile services (part 90 of this chapter),
including secondary fixed operations, but excluding fixed services such
as call box operations and meter reading;
(c) Mobile satellite services (part 25 of this chapter) including
dual-use equipment, terminals capable of transmitting while a platform
is moving, but excluding satellite facilities provided through a
transportable platform that cannot move when the communications service
is offered;
(d) Marine and aviation services (parts 80 and 87 of this chapter),
including fixed operations that support these marine and aviation
mobile systems;
(e) Personal radio services (part 95 of this chapter), but
excluding Interactive Video and Data Service;
(f) Personal communications services (part 24 of this chapter);
(g) Auxiliary services provided by mobile service licensees, and
ancillary fixed communications offered by personal communications
service providers;
(h) Unlicensed services meeting the definition of commercial mobile
radio service in Sec. 20.3, such as the resale of commercial mobile
radio services, but excluding unlicensed radio frequency devices under
part 15 of this chapter (including unlicensed personal communications
service devices).
Sec. 20.9 Commercial mobile radio service.
(a) The following mobile services shall be treated as common
carriage services and regulated as commercial mobile radio services
(including any such service offered as a hybrid service or offered on
an excess capacity basis to the extent it meets the definition of
commercial mobile radio service, or offered as an auxiliary or
ancillary service), pursuant to Section 332 of the Communications Act,
47 U.S.C. 332:
(1) Private Paging (part 90 of this chapter), excluding not-for-
profit paging systems that serve only the licensee's own internal
communications needs;
(2) Business Radio Services (Sec. 90.75 of this chapter) that offer
customers for-profit interconnected service;
(3) Land Mobile Systems on 220-222 MHz (part 90 of this chapter),
except services that are not-for-profit or do not offer interconnected
service;
(4) Specialized Mobile Radio services that provide interconnected
service (part 90 of this chapter);
(5) Public Coast Stations (part 80, subpart J of this chapter);
(6) Public Land Mobile Service (paging, mobile telephone, improved
mobile telephone, trunked mobile, and 454 MHz air-ground services)
(part 22, subpart G of this chapter);
(7) Domestic Public Cellular Radio Telecommunications Service (part
22, subpart K of this chapter);
(8) 800 MHz Air-Ground Radiotelephone Service (part 22, subpart M
of this chapter);
(9) Offshore Radio Service (part 22, subpart L of this chapter);
(10) Any mobile satellite service involving the provision of
commercial mobile radio service (by licensees or resellers) directly to
end users, except that mobile satellite licensees and other entities
that sell or lease space segment capacity, to the extent that it does
not provide commercial mobile radio service directly to end users, may
provide space segment capacity to commercial mobile radio service
providers on a non-common carrier basis, if so authorized by the
Commission;
(11) Personal Communications Services (part 24 of this chapter),
except as provided in paragraph (b) of this section;
(12) For-profit subsidiary communications services transmitted on
subcarriers within the FM baseband signal, that provide interconnected
service (47 CFR 73.295 of this chapter); and
(13) A mobile service that is the functional equivalent of a
commercial mobile radio service.
(i) A mobile service that does not meet the definition of
commercial mobile radio service is presumed to be a private mobile
radio service.
(ii) Any interested party may seek to overcome the presumption that
a particular mobile radio service is a private mobile radio service by
filing a petition for declaratory ruling challenging a mobile service
provider's regulatory treatment as a private mobile radio service.
(A) The petition must show that: (1) The mobile service in question
meets the definition of commercial mobile radio service; or
(2) The mobile service in question is the functional equivalent of
a service that meets the definition of a commercial mobile radio
service.
(B) A variety of factors will be evaluated to make a determination
whether the mobile service in question is the functional equivalent of
a commercial mobile radio service, including: consumer demand for the
service to determine whether the service is closely substitutable for a
commercial mobile radio service; whether changes in price for the
service under examination, or for the comparable commercial mobile
radio service would prompt customers to change from one service to the
other; and market research information identifying the targeted market
for the service under review.
(C) The petition must contain specific allegations of fact
supported by affidavit(s) of person(s) with personal knowledge. The
petition must be served on the mobile service provider against whom it
is filed and contain a certificate of service to this effect. The
mobile service provider may file an opposition to the petition and the
petitioner may file a reply. The general rules of practice and
procedure contained in Secs. 1.1 through 1.52 of this chapter shall
apply.
(b) Licensees of a Personal Communications Service or applicants
for a Personal Communications Service license proposing to use any
Personal Communications Service spectrum to offer service on a private
mobile radio service basis must overcome the presumption that Personal
Communications Service is a commercial mobile radio service.
(1) The applicant or licensee (who must file an application to
modify its authorization) seeking authority to dedicate a portion of
the spectrum for private mobile radio service, must include a
certification that it will offer Personal Communications Service on a
private mobile radio service basis. The certification must include a
description of the proposed service sufficient to demonstrate that it
is not within the definition of commercial mobile radio service in
Sec. 20.3. Any application requesting to use any Personal
Communications Service spectrum to offer service on a private mobile
radio service basis will be placed on public notice by the Commission.
(2) Any interested party may file a petition to deny the
application within 30 days after the date of public notice announcing
the acceptance for filing of the application. The petition shall
contain specific allegations of fact supported by affidavit(s) of
person(s) with personal knowledge to show that the applicant's request
does not rebut the commercial mobile radio service presumption. The
petition must be served on the applicant and contain a certificate of
service to this effect. The applicant may file an opposition with
allegations of fact supported by affidavit. The petitioner may file a
reply. No additional pleadings will be allowed. The general rules of
practice and procedure contained in Sec. 1.1 through Sec. 1.52 of this
chapter and Sec. 22.30 of this chapter shall apply.
(c) Any provider of private land mobile service before August 10,
1993 (including any system expansions, modifications, or acquisitions
of additional licenses in the same service, even if authorized after
this date), and any private paging service utilizing frequencies
allocated as of January 1, 1993, that meet the definition of commercial
mobile radio service, shall, except for purposes of Sec. 20.5
(applicable August 10, 1993 for the providers listed in this
paragraph), be treated as private mobile radio service until August 10,
1996. After this date, these entities will be treated as commercial
mobile radio service providers regulated under this part.
Sec. 20.11 Interconnection to facilities of local exchange carriers.
(a) A local exchange carrier must provide the type of
interconnection reasonably requested by a mobile service licensee or
carrier, within a reasonable time after the request, unless such
interconnection is not technically feasible or economically reasonable.
Complaints against carriers under section 208 of the Communications
Act, 47 U.S.C. 208, alleging a violation of this section shall follow
the requirements of Secs. 1.711-1.734 of this chapter, 47 CFR 1.711-
1.734.
(b) Local exchange carriers and commercial mobile radio service
providers shall comply with principles of mutual compensation.
(1) A local exchange carrier shall pay reasonable compensation to a
commercial mobile radio service provider in connection with terminating
traffic that originates on facilities of the local exchange carrier.
(2) A commercial mobile radio service provider shall pay reasonable
compensation to a local exchange carrier in connection with terminating
traffic that originates on the facilities of the commercial mobile
radio service provider.
Sec. 20.13 State petitions for authority to regulate rates.
(a) States may petition for authority to regulate the intrastate
rates of any commercial mobile radio service. The petition must include
the following:
(1) Demonstrative evidence that market conditions in the state for
commercial mobile radio services do not adequately protect subscribers
to such services from unjust and unreasonable rates or rates that are
unjustly or unreasonably discriminatory. Alternatively, a state's
petition may include demonstrative evidence showing that market
conditions for commercial mobile radio services do not protect
subscribers adequately from unjust and unreasonable rates, or rates
that are unjustly or unreasonably discriminatory, and that a
substantial portion of the commercial mobile radio service subscribers
in the state or a specified geographic area have no alternative means
of obtaining basic telephone service. This showing may include evidence
of the range of basic telephone service alternatives available to
consumers in the state.
(2) The following is a non-exhaustive list of examples of the types
of evidence, information, and analysis that may be considered pertinent
to determine market conditions and consumer protection by the
Commission in reviewing any petition filed by a state under this
section:
(i) The number of commercial mobile radio service providers in the
state, the types of services offered by commercial mobile radio service
providers in the state, and the period of time that these providers
have offered service in the state;
(ii) The number of customers of each commercial mobile radio
service provider in the state; trends in each provider's customer base
during the most recent annual period or other data covering another
reasonable period if annual data is unavailable; and annual revenues
and rates of return for each commercial mobile radio service provider;
(iii) Rate information for each commercial mobile radio service
provider, including trends in each provider's rates during the most
recent annual period or other data covering another reasonable period
if annual data is unavailable;
(iv) An assessment of the extent to which services offered by the
commercial mobile radio service providers the state proposes to
regulate are substitutable for services offered by other carriers in
the state;
(v) Opportunities for new providers to enter into the provision of
competing services, and an analysis of any barriers to such entry;
(vi) Specific allegations of fact (supported by affidavit of person
with personal knowledge) regarding anti-competitive or discriminatory
practices or behavior by commercial mobile radio service providers in
the state;
(vii) Evidence, information, and analysis demonstrating with
particularity instances of systematic unjust and unreasonable rates, or
rates that are unjust or unreasonably discriminatory, imposed upon
commercial mobile radio service subscribers. Such evidence should
include an examination of the relationship between rates and costs.
Additionally, evidence of a pattern of such rates, that demonstrates
the inability of the commercial mobile radio service marketplace in the
state to produce reasonable rates through competitive forces will be
considered especially probative; and
(viii) Information regarding customer satisfaction or
dissatisfaction with services offered by commercial mobile radio
service providers, including statistics and other information about
complaints filed with the state regulatory commission.
(3) Petitions must include a certification that the state agency
filing the petition is the duly authorized state agency responsible for
the regulation of telecommunication services provided in the state.
(4) Petitions must identify and describe in detail the rules the
state proposes to establish if the petition is granted.
(5) States have the burden of proof. Interested parties may file
comments in support or in opposition to the petition within 30 days
after public notice of the filing of a petition by a state under this
section. Any interested party may file a reply within 15 days after the
expiration of the filing period for comments. No additional pleadings
may be filed. Except for Sec. 1.45 of this chapter, practice and
procedure rules contained in Secs. 1.42-1.52 of this chapter shall
apply. The provisions of Secs. 1.771-1.773 of this chapter do not
apply.
(6) The Commission shall act upon any petition filed by a state
under this paragraph not later than the end of the nine-month period
after the filing of the petition.
(7) If the Commission grants the petition, it shall authorize the
state to regulate rates for commercial mobile radio services in the
state during a reasonable period of time, as specified by the
Commission. The period of time specified by the Commission will be that
necessary to ensure that rates are just and reasonable, or not unjustly
or unreasonably discriminatory.
(b) States that regulated rates for commercial mobile services as
of June 1, 1993, may petition the Commission under this section before
August 10, 1994, to extend this authority.
(1) The petition will be acted upon by the Commission in accordance
with the provisions of paragraphs (a)(1) through (a)(5) of this
section.
(2) The Commission shall act upon the petition (including any
reconsideration) not later than the end of the 12-month period
following the date of the filing of the petition by the state involved.
Commercial mobile radio service providers offering such service in the
state shall comply with the existing regulations of the state until the
petition and any reconsideration of the petition are acted upon by the
Commission.
(3) The provisions of paragraph (a)(7) of this section apply to any
petition granted by the Commission under this paragraph.
(c) No sooner than 18 months from grant of authority by the
Commission under this section for state rate regulations, any
interested party may petition the Commission for an order to
discontinue state authority for rate regulation.
(1) Petitions to discontinue state authority for rate regulation
must be based on recent empirical data or other significant evidence
demonstrating that the exercise of rate authority by a state is no
longer necessary to ensure that the rates for commercial mobile are
just and reasonable or not unjustly or unreasonably discriminatory.
(2) Any interested party may file comments in support of or in
opposition to the petition within 30 days after public notice of the
filing of the petition. Any interested party may file a reply within 15
days after the time for filing comments has expired. No additional
pleadings may be filed. Except for 1.45 of this chapter, practice and
procedure rules contained in Sec. 1.42-1.52 of this chapter apply. The
provisions of Sec. 1.771-1.773 of this chapter do not apply.
(3) The Commission shall act upon any petition filed by any
interested party under this paragraph within nine months after the
filing of the petition.
Sec. 20.15 Requirements under Title II of the Communications Act.
(a) Commercial mobile radio services providers, to the extent
applicable, must comply with sections 201, 202, 206, 207, 208, 209,
216, 217, 223, 225, 226, 227, and 228 of the Communications Act, 47
U.S.C. 201, 202, 206, 207, 208, 209, 216, 217, 223, 225, 226, 227, 228;
part 68 of this chapter, 47 CFR part 68; and Secs. 1.701-1.748, and
1.815 of this chapter, 47 CFR 1.701-1.748, 1.815.
(b) Commercial mobile radio service providers are not required to:
(1) File with the Commission copies of contracts entered into with
other carriers or comply with other reporting requirements, or with
Secs. 1.781-1.814 and 43.21 of this chapter;
(2) Seek authority for interlocking directors (section 212 of the
Communications Act);
(3) Submit applications for new facilities or discontinuance of
existing facilities (section 214 of the Communications Act).
(c) Commercial mobile radio service providers shall not file
tariffs for interstate service to their customers, or for interstate
access service. Sections 1.771-1.773 and part 61 of this chapter are
not applicable to interstate services provided by commercial mobile
radio service providers. Commercial radio service providers shall
cancel tariffs for interstate service to their customers and interstate
access service.
(d) Nothing in this section shall be construed to modify the
Commission's rules and policies on the provision of international
service under part 63 of this chapter.
PART 22--PUBLIC MOBILE SERVICE
2. The authority citation for part 22 continues to read as follows:
Authority: 47 U.S.C. 154, 303, unless otherwise noted.
3. Section 22.1 is amended by adding paragraph (g) to read as
follows:
Sec. 22.1 Other applicable rule parts.
* * * * *
(g) Part 20 of this chapter which governs commercial mobile radio
services which include the following services in this part:
(1) Public Land Mobile;
(2) Offshore Radio Service;
(3) Domestic Public Cellular Radio Telecommunications Service;
(4) 800 MHz Air-Ground Radiotelephone Service.
Sec. 22.13 [Amended]
4. Section 22.13 is amended by removing paragraph (f).
Sec. 22.43 [Amended]
5. Section 22.43 is amended by removing paragraph (b)(2).
Sec. 22.304 [Removed]
6. Section 22.304 is removed.
PART 80--STATIONS IN THE MARITIME SERVICE
7. The authority citation for part 80 continues to read as follows:
Authority: Secs. 4, 303, 48 Stat. 1066, 1082, as amended; 47
U.S.C. 154, 303, unless otherwise noted. Interpret or apply 48 Stat.
1064-1068, 1081-1105, as amended; 47 U.S.C. 151-155, 301-609; 3 UST
3450, 3 UST 4726, 12 UST 2377.
8. Section 80.3 is amended by removing paragraphs (g) through (k),
by redesignating paragraphs (f), and (l) through (o) as (g), and (h)
through (k), respectively, and by adding new paragraph (f) to read as
follows:
Sec. 80.3 Other applicable rule parts of this chapter.
* * * * *
(f) Part 20 of this chapter which governs commercial mobile radio
services which include subpart J of this part (public coast stations).
* * * * *
PART 90--PRIVATE LAND MOBILE RADIO SERVICE
9. The authority citation for part 90 continues to read as follows:
Authority: Sec. 4, 303, and 332, 48 Stat. 1066, 1082, as
amended; 47 U.S.C. 154, 303, and 332, unless otherwise noted.
10. Section 90.5 is amended by redesignating paragraphs (h) through
(j) as paragraphs (i) through (k), respectively, and by adding a new
paragraph (h) to read as follows:
Sec. 90.5 Other applicable rule parts.
* * * * *
(h) Part 20 of this chapter which governs commercial mobile radio
service applicable to certain providers in the following services in
this part:
(1) Business radio service;
(2) Private paging;
(3) Land mobile service on 220-222 MHz;
(4) Specialized Mobile Radio Service.
* * * * *
PART 99--[REDESIGNATED AS PART 24]
11. Part 99 is redesignated as part 24 to read as follows:
PART 24--PERSONAL COMMUNICATIONS SERVICES
12. The authority citation for redesignated part 24 continues to
read as follows:
Authority: Secs. 4, 301, 302, 303, and 332, 48 Stat. 1066, 1082,
as amended; 47 U.S.C. 154, 301, 302, 303, and 322, unless otherwise
noted.
13. In redesignated part 24, Sec. 24.2 is amended by redesignating
paragraphs (g) through (i) as paragraphs (h) through (j), respectively,
and by adding a new paragraph (g) to read as follows:
Sec. 24.2 Other applicable rule parts.
* * * * *
(g) Part 20 of this chapter governs commercial mobile radio
services.
* * * * *
[FR Doc. 94-9071 Filed 4-18-94; 8:45 am]
BILLING CODE 6712-01-M
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.