Implementation of a Grant Program for Remote Community Alert Systems Pursuant to Section 605(a) of the Warning, Alert, and Response Network (WARN) Act

Federal Communications Commission

FCC 07-53

Before the

Federal Conununications Commission

Washington, D.C. 20554

In the Matter of

)

)

Implementation of a Grant Program for Remote

)

PS Docket No. 07-8

Community Alert Systems Pursuant to Section

)

605(a) of the Warning, Alert, and Response

)

Network (WARN)

Act

)

DECLARATORY RULING

Adopted: April 11,2007

Released: April 11,2007

By the Commission:

1.

INTRODUCTION AND BACKGROUND

1.

In this Declaratory Ruling, we interpret the phrase "remote communities effectively

unserved by commercial mobile service," as required by Section 605(a) of the Warning, Alert, and

Response Network (WARN)

Act.'

2.

The WARN Act requires the Commission to establish an advisory committee to develop

recommendations regarding standards for commercial mobile service providers' transmission of

emergency alert messages on a voluntary basis to their customers, and to conduct a rulemaking, taking

into consideration such recommendations.^ The WARN Act also requires the establishment of a grant

program to fund outdoor alerting technologies for remote communities lacking commercial mobile

service, and requires the FCC to interpret the term "remote communities effectively unserved by

commercial mobile service." Specifically, Section 605(a) of the WARN Act provides:

The Under Secretary of Commerce for Oceans and Atmosphere, in consultation with the

Secretary of Homeland Security, shall establish a program under which grants may be

made to provide for outdoor alerting technologies in remote communities effectively

unserved by commercial mobile service (as determined by the Federal Communications

Commission within ISO days after the date of enactment of this Act) for the purpose of

enabling residents of those communities to receive emergency alerts.'

3

of Homeland Security, shall establish a program under which grants may be

made to provide for outdoor alerting technologies in remote communities effectively

unserved by commercial mobile service (as determined by the Federal Communications

Commission within ISO days after the date of enactment of this Act) for the purpose of

enabling residents of those communities to receive emergency alerts.'

3.

On January 23, 2007, the Commission released a public notice seeking comment on how

we should interpret the phrase "remote communities effectively unserved by commercial mobile service,"

as required by Section 605(a).'' For the reasons discussed below, we find that: (1) a "remote" area consists

of a county with a population density of 100 persons per square mile or less, based upon the most recently

available Census data; (2) "commercial mobile service" means those services that are required to provide

'

Warning, Alert, and Response Network (WARN)

Act, 47 U.S.C. §§ 1201-1205. The WARN Act was enacted as

Title VI of the Security and Accountability For Every Port Act of 2006 (SAFE Port Act), Pub. L. No. 109-347, 120

Stat. 1884 (2006), which was signed into law by President Bush on October 13, 2006.

^ See WARN Act, §§ 601 et seq.

^Id. § 605(a).

" The Commission Seeks Comment on Implementation of a Grant Program for Remote Community Alert Systems

Pursuant to Section 605(a) of the Warning, Alert, and Response Network (WARN)

Act, PS Docket No. 07-8, Public

Notice, 22 FCC Red 1045 (2007) (Public Notice). Comments were due on February 6, 2007, and reply comments

on February 22, 2007. Id. A list of commenters is provided in the Appendix.

7214

" The Commission Seeks Comment on Implementation of a Grant Program for Remote Community Alert Systems

Pursuant to Section 605(a) of the Warning, Alert, and Response Network (WARN)

Act, PS Docket No. 07-8, Public

Notice, 22 FCC Red 1045 (2007) (Public Notice). Comments were due on February 6, 2007, and reply comments

on February 22, 2007. Id. A list of commenters is provided in the Appendix.

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Federal Communications Commission

FCC 07-53

E911 service in accordance with Section 20.18 of the Commission's rules; and (3) "effectively unserved"

identifies "remote communities" that do not receive "commercial mobile service" as demonstrated by

coverage maps, technical analyses, field tests, or any other reasonable means.

II.

DISCUSSION

4.

In this section, we define the phrases "remote communities," "commercial mobile

service," and "effectively unserved" as used in Section 605(a) of the WARN Act.

5.

"Remote Communities." In the Public Notice, the Commission asked whether applying

the definition of "rural area," which the Commission had previously defined for purposes of facilitating

deployment of wireless services in rural areas, to the WARN Act's phrase "remote communities" would

satisfy the policy purposes envisioned by Congress in establishing the grant program under Section

605(a).^ The Commission previously defined "mral areas" as "those counties (or equivalent) with a

population density of 100 persons per square mile or less, based upon the most recently available Census

data."^ In the Public Notice, the Commission invited comment on this definition and other possible

interpretations of the term "remote communities."'

6.

Comments

ng the grant program under Section

605(a).^ The Commission previously defined "mral areas" as "those counties (or equivalent) with a

population density of 100 persons per square mile or less, based upon the most recently available Census

data."^ In the Public Notice, the Commission invited comment on this definition and other possible

interpretations of the term "remote communities."'

6.

Comments. AT&T and MC/LM support utilizing the Commission's definition of "rural

area" to define "remote communities."® AT&T notes that neither the WARN Act nor its legislative

history defines "remote communities."' TDI states that the Commission's definition of "remote

communities effectively unserved by commercial mobile service" should be read "as broadly as possible,

given the vital public interest served by policies associated with emergency alerting systems."" CCDTF

agrees that this phrase should be interpreted "broadly," and adds that the Commission's definition of

"rural area" is "too narrow in scope" and may cause the grant program "to miss serving households and

groups of persons, or persons living alone, with disabilities who due to their disability, may in fact live

remote lives but in higher density areas."''

Public Notice at 2.

® See Facilitating the Provision of Spectrum-Based Services to Rural Areas and Promoting Opportunities for Rural

Telephone Companies to Provide SpecUum-Based Services, WT Docket No. 02-381, 2000 Biennial Regulatory

Review Spectrum Aggregation Limits for Commercial Mobile Radio Services, WT Docket No. 01-14, Increasing

Flexibility to Promote Access to and the Efficient and Intensive Use of Spiectrum and the Widespread Deployment

of Wireless Services, and to Facilitate Capital Formation, WT Docket No. 03-202, Report and Order and Further

Notice of Proposed Rulemaking, 19 FCC Red 19078, 19087 i 11 (2004) {Rural R&O).

'

Public Notice at 2.

® Comments Filed by AT&T Inc. on behalf of its affiliate, AT&T Mobility LLC, PS Docket No. 07-8, at 1 (filed

Feb

the Efficient and Intensive Use of Spiectrum and the Widespread Deployment

of Wireless Services, and to Facilitate Capital Formation, WT Docket No. 03-202, Report and Order and Further

Notice of Proposed Rulemaking, 19 FCC Red 19078, 19087 i 11 (2004) {Rural R&O).

'

Public Notice at 2.

® Comments Filed by AT&T Inc. on behalf of its affiliate, AT&T Mobility LLC, PS Docket No. 07-8, at 1 (filed

Feb. 6, 2007) (AT&T Comments); Comments Filed by Maritime Communications/Land Mobile, LLC PS Docket

No. 07-8, at I (filed Feb. 6, 2007) (MC/LM Comments).

'

AT&T Comments at 2. MC/LM also points out that, as a provider of Automated Maritime Telecommunications

System services, its authorized service area includes areas with population densities of 100 persons per square mile

or less. MC/LM Comments at 1.

Reply Comments Filed by Telecommunications for the Deaf and Hard of Hearing, Inc.; Association of Late-

Deafened Adults; California Coalition of Agencies Serving the Deaf and Hard of Hearing; Deaf &

Hard of Hearing

Consumer Advocacy Network; Hearing Loss Association of America; and National Association for the Deaf, PS

Docket No. 07-8, at 2

(filed Feb. 22,2007) (TDI Reply Comments).

"

Comments Filed by Consortium for Citizens with Disabilities Task Force on Telecommunications and

Technology, PS Docket No. 07-8, at 1, 2

(filed Feb. 6,2007) (CCDTF Comments).

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7.

AAPC states that the definition of "rural area" is "the proper starting point," but believes

that actual applicants under the grant program will more likely be political subdivisions of rural areas,

"such as incorporated villages, towns or cities, or townships or their equivalent," as opposed to the

counties themselves.'^ Accordingly, AAPC suggests that "remote communities" should be defined as

these political subdivisions.'^

8.

Discussion. We adopt our Public Notice proposal to apply the definition of "rural area"

for the purpose of determining whether a "community" is "remote" under the WARN Act

as incorporated villages, towns or cities, or townships or their equivalent," as opposed to the

counties themselves.'^ Accordingly, AAPC suggests that "remote communities" should be defined as

these political subdivisions.'^

8.

Discussion. We adopt our Public Notice proposal to apply the definition of "rural area"

for the purpose of determining whether a "community" is "remote" under the WARN Act. In reaching

the definition of "rural area" in the context of the Rural R&O,

the Commission recognized that a

comprehensive definition of "rural area" may not be appropriate for all purposes.''' The Commission

therefore decided to treat the definition of "rural area" as "a presumption that will apply for current and

future Commission . .. rules, policies and analyses for which the term ... has not been expressly

defined."'^ The Commission stated that the presumption would "maintain continuity with respect to

existing definitions of 'rural' that have been tailored to apply to specific policies, while also providing a

practical guideline."'^ The policy principles underlying the Commission's definition of "rural area" are

equally relevant for purposes of implementing Section 605(a) of the WARN Act. Accordingly, we find

that it is appropriate to apply the same definition of "rural area" to define a "community" that is "remote."

9.

Although the Commission considered several potential definitions for "rural area," in the

Rural R&O,^^ it adopted the current definition because it was neither difficult to administer nor "so

narrowly tailored to only include what many refer to as the most rural areas."'® Specifically, the

Commission noted that a definition based on county boundaries is "easy to administer and understand,

population data based on county boundfiries are widely available to the public, and county boundaries

rarely change."'^ The Commission also noted that "the total population of the counties that fall within

this definition of 'rural area' closely tracks the Census Bureau's overall population for non-urban areas.

ted that a definition based on county boundaries is "easy to administer and understand,

population data based on county boundfiries are widely available to the public, and county boundaries

rarely change."'^ The Commission also noted that "the total population of the counties that fall within

this definition of 'rural area' closely tracks the Census Bureau's overall population for non-urban areas."^°

10.

While AAPC may be correct that grant applicants could include the political subdivisions

of counties, we are not persuaded that the nature of the potential grant applicant should be determinative

Reply Comments Filed by American Association of Paging Carriers, PS Docket No. 07-8, at 2

(filed Feb. 22,

2007) (AAPC Reply Comments).

Id.

"

Rural R&O, 19 FCC Red at 19087 ? 12.

''Id.

''Id.

See id. at 19085-86 19. The Commission sought comment on the following potential definitions: (1) counties

with a population density of 100 persons or fewer per square mile; (2) Rural Service Areas (RSAs); (3) non-nodal

counties within an Economic Area (EA)

as defined by the Department of Commerce's Bureau of Economic

Analysis; (4) the definition for "rural" used by the Rural Utilities Service for its broadband loan program; (5) the

definition for "rural area" used by the Commission in connection with universal service support for schools,

libraries, and rural health care providers; (6) the definition of "rural" based on census tracts as outlined by the

Economic Research Service of the USDA;

Bureau of Economic

Analysis; (4) the definition for "rural" used by the Rural Utilities Service for its broadband loan program; (5) the

definition for "rural area" used by the Commission in connection with universal service support for schools,

libraries, and rural health care providers; (6) the definition of "rural" based on census tracts as outlined by the

Economic Research Service of the USDA;

(7) the Census Bureau definition of "rural" counties; and (8) any census

tract that is not within 10 miles of any incorporated or census-designated place containing more than 2,500 people,

and is not within a county or county equivalent that has an overall population density of more than 500 persons per

square mile of land. Id.

Sec id. at 190871 11.

"Id.

^'Id.

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FCC 07-53

of the definition of "remote community." As explained above, the definition of "rural area" is clear, and

thus readily applied. AAPC's proposal, on the contrary, would lead to a "definition" that would

encompass as many variables as there are political subdivisions within the United States, leading to a

standard that would be difficult to apply. Because AAPC provides no specifics, quantitative data or other

criteria to support its position, we must reject AAPC's proposal.

11.

We also disagree with TDI's and CCDTF's arguments that we should interpret this

phrase more broadly. Employing a county-sized basis for defining "remote" areas affords a sufficiently

wide enough scope to carry out the objectives of Section 605(a). While we understand that persons with

disabilities can be "isolated" even when located in an area not considered "remote,"^' these concerns are

unrelated to the specific issue of defining "remote communities" for purposes of the WARN Act.

Generally, the grant program is targeted to ensure that alerts can be provided in the absence of alternative

commercial mobile communications means

ction 605(a). While we understand that persons with

disabilities can be "isolated" even when located in an area not considered "remote,"^' these concerns are

unrelated to the specific issue of defining "remote communities" for purposes of the WARN Act.

Generally, the grant program is targeted to ensure that alerts can be provided in the absence of alternative

commercial mobile communications means. CCDTF addresses "higher density areas" that have

altemative commercial mobile communications options for alerts, and are thus by definition are beyond

the scope of what constitutes a remote community.

12.

We recognize, however, that persons with disabilities have unique needs concerning

emergency alerts that should be addressed, whether located in "remote communities" or otherwise. In

this regard, we note that the Commission's Commercial Mobile Service Alert Advisory Committee

(CMSAAC), which was formed pursuant to Section 603(c) of the WARN Act, is in the process of

formulating recommendations on technical standards and protocols to facilitate the ability of commercial

mobile service providers to transmit emergency alerts to their subscribers.^^ We therefore direct the

Chief, Public Safety and Homeland Security Bureau, to place the comments filed by TDI and CCDTF in

this proceeding into the CMSAAC record, so that the issues raised by these commenters may be

considered in that docket.

13.

For the foregoing reasons, we conclude that communities are "remote" under the WARN

Act where those communities are located in "counties (or equivalent) with a population density of 100

persons per square mile or less, based upon the most recently available Census data."^^ This decision

strikes the appropriate public interest balance and best ensures that the benefits of the grant program are

achieved consistent with the WARN Act.

14

e that communities are "remote" under the WARN

Act where those communities are located in "counties (or equivalent) with a population density of 100

persons per square mile or less, based upon the most recently available Census data."^^ This decision

strikes the appropriate public interest balance and best ensures that the benefits of the grant program are

achieved consistent with the WARN Act.

14.

"Commercial Mobile Service." In the Public Notice, the Commission asked whether it

should define "commercial mobile service" as "commercial mobile radio service" (CMRS)

for purposes

of implementing Section 605(a).^'* The Public Notice also sought comment on other possible

See CCDTF Comments at 2.

The WARN Act requires the Commission to establish an advisory committee to develop and submit to the

Commission system-critical recommendations. WARN Act, § 603(c). On December 5, 2006, pursuant to Section

603(c) of the WARN Act, the Public Safety and Homeland Security Bureau released a public notice announcing the

appointment of persons to serve as members of the Commission's Commercial Mobile Service Alert Advisory

Committee. See Notice of Appointment of Members to the Commercial Mobile Service Alert Advisory Committee;

Agenda for December 12, 2006 Meeting, Public Notice, 21 FCC Red 14175 (2006).

Rural R&0.\9 FCC Red at 190871II.

Public Notice at 2. Section 20.3,47 C.F.R. § 20.3, defines a commercial mobile radio service as 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

190871II.

Public Notice at 2. Section 20.3,47 C.F.R. § 20.3, defines a commercial mobile radio service as 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 mobile service described in paragraph (a) of this section.

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interpretations of "commercial mobile service."^^ In the Public Notice, the Commission noted that

Section 602(b)(1)(A) of the WARN Act specifically defines "commercial mobile service" by cross-

reference to Section 332(d)(1) of the Communications Act of 1934, as amended.^^

15.

Comments. AT&T argues that, because the Commission has "long defined 'commercial

mobile service' for purposes of Section 332 as CMRS," the Commission should also define "commercial

mobile service" as CMRS for purposes of Section 605(a),^^ However, noting that the definition of CMRS

encompasses mobile satellite service (MSS),^^ which may have nationwide coverage, AT&T and AAPC

argue that, for purposes of Section 605(a), MSS should be excluded from the definition of "commercial

mobile service" because its inclusion would mean that few, if any, "remote communities" would be

deemed "effectively unserved."^' AAPC also contends that CMRS providers licensed under the Air-

Ground Radiotelephone Service and Offshore Radio Telephone Service should be excluded from the

definition of commercial mobile service.^"

16

605(a), MSS should be excluded from the definition of "commercial

mobile service" because its inclusion would mean that few, if any, "remote communities" would be

deemed "effectively unserved."^' AAPC also contends that CMRS providers licensed under the Air-

Ground Radiotelephone Service and Offshore Radio Telephone Service should be excluded from the

definition of commercial mobile service.^"

16.

On the other hand, MC/LM opposes use of the definition of CMRS,

arguing that, because

the WARN Act "specifically directs the Commission to use the definition of Section 332(d)(1)," the

Commission should "use only the exact definition of Section 332(d)(l)."^' MC/LM also opposes use of

the definition of CMRS contained in Section 20.3 of the Commission's rules because that definition

includes radio services that are the "functional equivalent" of CMRS and is thus broader than Section

332(d)(l)'s definition.^^

17.

Discussion. For purposes of Section 605(a) of the WARN Act only, we define the phrase

"commercial mobile service" to include only those services that are required to provide E911 service in

accordance with Section 20.18 of the Commission's rules.^^ This interpretation of the statutory language

Public Notice at 2.

Id.

-, WARN Act, § 602(b)(1)(A) (citing 47 U.S.C. § 332(d)(1) ("commercial mobile service means any mobile

service [

]

that is provided for profit and makes interconnected service available (A) to the public or (B) to such

classes of eligible users as to be effectively available to a substantial portion of the public, as specified by regulation

by the Commission")).

AT&T Comments at 2-3; see also AAPC Comments at 3

(arguing that the definition of CMRS in Section 20.9 of

the Commission's rules should be the starting point for defining "commercial mobile service").

AT&T Comments at 3

(A) to the public or (B) to such

classes of eligible users as to be effectively available to a substantial portion of the public, as specified by regulation

by the Commission")).

AT&T Comments at 2-3; see also AAPC Comments at 3

(arguing that the definition of CMRS in Section 20.9 of

the Commission's rules should be the starting point for defining "commercial mobile service").

AT&T Comments at 3. Mobile Satellite Service is defined as a radiocommunication service: (1) Between mobile

earth stations and one or more space stations, or between space stations used by this service; or (2) Between mobile

earth stations by means of one or more space stations. This service may also include feeder links necessary for its

operation. 47 C.F.R. § 25.201.

AT&T Comments at 3 (referring to the inclusion of MSS as specifically enumerated in 47 C.F.R. § 20.9); AAPC

Reply Comments at 3.

AAPC Reply Comments at 3-4.

MC/LM Comments at 2.

Id. (citing 47 C.F.R. § 20.3(b)). We note that rather than offering specific comments in regard to the appropriate

definition of "commercial mobile service," CCDTF and TDI stress that the methods by which emergency

notifications are provided should be made available to as many persons as possible. In particular, TDI states that

reliance on a single audible warning "will provide little or no warning to persons with hearing loss that are unable to

hear such warnings." TDI Reply Comments at 2, 3. CCDTF states that the devices should be interoperable to

enable persons with all kinds of disabilities to access and understand emergency alert systems. CCDTF Comments

at 2. Because the issues raised by CCDTF and TDI are related to the ongoing work of the CMSAAC, we

incorporate their comments in the record being developed by the CMSAAC. See supra para. 12.

See 47 C.F.R. § 20.18(a) (identifying the services that are subject to the Commission's wireless 911 rules).

7218

with all kinds of disabilities to access and understand emergency alert systems. CCDTF Comments

at 2. Because the issues raised by CCDTF and TDI are related to the ongoing work of the CMSAAC, we

incorporate their comments in the record being developed by the CMSAAC. See supra para. 12.

See 47 C.F.R. § 20.18(a) (identifying the services that are subject to the Commission's wireless 911 rules).

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is consistent with the purposes of the WARN Act and with the record in this proceeding. We agree with

commenters that certain services that satisfy the Commission's definition of CMRS -

particularly MSS -

should not be included in the WARN Act's definition of "commercial mobile service."^ Compared to

terrestrial-based systems, MSS can offer nationwide coverage, or, by some accounts "complete coverage

of the earth."^^ As a result, it would be difficult, if not impossible, for a grant applicant to prove that none

of its community members have access to "commercial mobile service." We thus find that the objectives

of the grant program could not be achieved if current MSS offerings were included in the definition of

commercial mobile service.'^

18.

Because including current MSS offerings in the definition of "commercial mobile

service" could render meaningless the grant program of Section 605(a), we cannot equate "commercial

mobile service" with the Commission's definition of CMRS for purposes of the WARN Act.^^ By

contrast, defining "commercial mobile service" to include only those services identified in Section

20.18(a) of the Commission's rules addresses commenters' concerns and creates a reasonable burden of

proof for grant applicants. Furthermore, defining "commercial mobile service" to include only carriers

that are obligated to provide E911 service focuses limited resources on communities that need them most:

namely, those communities that have no access to wireless E911 service

dentified in Section

20.18(a) of the Commission's rules addresses commenters' concerns and creates a reasonable burden of

proof for grant applicants. Furthermore, defining "commercial mobile service" to include only carriers

that are obligated to provide E911 service focuses limited resources on communities that need them most:

namely, those communities that have no access to wireless E911 service. For all of these reasons, we

believe that the most reasonable interpretation of "commercial mobile service" for purposes of the

WARN Act is those services that are identified in Section 20.18(a) of the Commission's rules.

19.

We reject MC/LM's argument that the Commission must employ the exact definition

contained in Section 332(d)(1) of the Act. Like Section 20.9 of our rules, the Section 332(d)(1) definition

also includes the type of ubiquitous MSS service that, if included in the Section 605(a) definition of

"commercial mobile service," would render the grant program authorized by Section 605 a nullity.'*

''' Section 20.9 enumerates several mobile services that are regulated as CMRS, including MSS. 47 C.F.R. § 20.9.

"

See AT&T Comments at 3 n. 12 (citing website materials of MSS operators Iridium and Globalstar).

MSS carriers currently provide 911 services primarily for hand held telephones. These services do not involve

"enhanced" 911 functionalities. The question of E911 requirements for MSS carriers is the subject of a separate

proceeding. See Revision of the Commission's Rules to Ensure Compatibility with Enhanced 911 Emergency

Calling Systems, CC Docket No. 94-102, IB Docket No. 99-67, Report and Order and Second Further Notice of

Proposed Rulemaking, 18 FCC Red 25340 (2003) {"E9U Scope Report and Order and Second Further Notice").

"

Our interpretation of "commercial mobile services" also addresses AAPC's argument that Air-Ground

Radiotelephone Service and Offshore Radiotelephone Service should be excluded from the definition of

"commercial mobile service" for purposes of implementing Section 605(a)

econd Further Notice of

Proposed Rulemaking, 18 FCC Red 25340 (2003) {"E9U Scope Report and Order and Second Further Notice").

"

Our interpretation of "commercial mobile services" also addresses AAPC's argument that Air-Ground

Radiotelephone Service and Offshore Radiotelephone Service should be excluded from the definition of

"commercial mobile service" for purposes of implementing Section 605(a). AAPC Reply Comments at 3-4. The

Air-Ground Radiotelephone Service allows CMRS providers to offer wireless services to subscribers on board

aircraft. See Amendment of Part 22 of the Commission's Rules to Benefit the Consumers of Air-Ground

Telecommunications Services, WT Docket No. 03-103, Report and Order and Notice of Proposed Rule Making, 20

FCC Red 4403 (2005). The Offshore Radiotelephone Service provides telephone service to subscribers located on

oil exploration and production platforms in the Gulf of Mexico. See 41 C.F.R. § 22.99. Accordingly, neither of

these services would typically be available in the areas targeted by the grant program, and thus are appropriately

excluded from the definition of "commercial mobile service."

See Establishment of Policies and Service Rules for the Mobile Satellite Service in the 2 GHz Band, Report and

Order in IB Docket No. 99-81, 15 FCC Red 16127, 16173 (2000) (stating that if MSS "is offered to the public as

described in [Section 332(d)(1) of] the Communications Act, service to the end user of the service would fall within

the statutory definition of CMRS"

(footnotes omitted)); Flexibility for Delivery of Communications by Mobile

Satellite Service Providers in the 2 GHz Band, the L-Band, and the 1.6/2.4 GHz Bands, Report and Order and

Notice of Proposed Rulemaking in IB Docket Nos. 01-185 and 02-364, 18 FCC Red 1962, 2073-75 (2003)

(reiterating that MSS service would meet the Section 332(d)(1) definition of "commercial mobile service" if the

service was an interconnected, for-profit service made available to a substantial portion of the public).

7219

in the 2 GHz Band, the L-Band, and the 1.6/2.4 GHz Bands, Report and Order and

Notice of Proposed Rulemaking in IB Docket Nos. 01-185 and 02-364, 18 FCC Red 1962, 2073-75 (2003)

(reiterating that MSS service would meet the Section 332(d)(1) definition of "commercial mobile service" if the

service was an interconnected, for-profit service made available to a substantial portion of the public).

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While Congress required the Commission to use the Section 332(d)(1) definition of commercial mobile

service for purposes of Section 602 of the WARN Act, such a requirement is nowhere to be found in

Section 605. Rather, Congress specifically directed the Commission to define the term "remote

communities effectively unserved by commercial mobile service," thus providing the Commission with

the authority to develop an appropriate definition of, among other terms, "commercial mobile service."

This difference is not surprising in light of the different objectives of Sections 602 and 605. Our charge is

to interpret the entire phrase in Section 605 that is under consideration in this Declaratory Ruling

holistically, and with the purpose of the grant program in mind. Accordingly, we believe we must

exercise our expertise in identifying which services falling under the Commission's CMRS definition are

appropriately included in the definition of "commercial mobile services" for purposes of Section 605(a).

20

ret the entire phrase in Section 605 that is under consideration in this Declaratory Ruling

holistically, and with the purpose of the grant program in mind. Accordingly, we believe we must

exercise our expertise in identifying which services falling under the Commission's CMRS definition are

appropriately included in the definition of "commercial mobile services" for purposes of Section 605(a).

20.

"Effectively Unserved." In the Public Notice, the Commission sought comment on

possible interpretations of "effectively unserved" and whether "effectively unserved" means that

commercial mobile services are not available to any consumers in a "remote community," a significant

portion of consumers, or some portion of consumers.^' The Commission also asked how applicants

should demonstrate the unavailability of commercial mobile services, and whether a variety of means

should be used, such as coverage maps from service providers, technical analyses, field tests, or

subscriber levels.""

21.

Comments. MC/LM proposes that a remote community should be considered

"effectively unserved" if fewer than two competing CMRS providers offer service or if 100 subscriber

units or less are actually receiving service."' AAPC argues that a remote community served by a CMRS

provider that does not in fact distribute emergency alerts should be deemed "effectively unserved" for

purposes of the WARN Act."^

22.

Regarding evidence of service, AT&T argues that the grantor should determine the

unavailability of CMRS based on marketing maps made available on carrier websites."^ AAPC further

requests that CMRS providers, particularly smaller carriers, should be able to demonstrate that they serve

a remote community with traditional coverage maps in addition to web-based maps."" In addition to

coverage maps, CCDTF believes that a wide variety of means such as "technical analyses, field tests, and

subscriber levels or other available information" should be used."^ AAPC argues that the grantor should

post lists of communities seeking grants so that

hould be able to demonstrate that they serve

a remote community with traditional coverage maps in addition to web-based maps."" In addition to

coverage maps, CCDTF believes that a wide variety of means such as "technical analyses, field tests, and

subscriber levels or other available information" should be used."^ AAPC argues that the grantor should

post lists of communities seeking grants so that carriers in those areas have an opportunity to demonstrate

that they do in fact serve those communities."^

23.

Discussion. We conclude that the phrase "effectively unserved" modifies "remote

communities," and that this language identifies "remote communities" that do not receive "commercial

Public Notice at 2.

""Id.

"' MC/LM Comments at 2.

AAPC Reply Comments at 5-6.

AT&T Comments at 3-4; see also AAPC Reply Comments at 5.

"" AAPC Reply Comments at 5.

CCDTF Comments at 3. CCDTF adds that, because many persons with hearing disabilities lack broadband

connections, "information from relay services providers may be useful in aggregating the unserved." Because

CCDTF's comments are more appropriately addressed by the CMSAAC, we specifically refer its comments in this

section to the CMSAAC record consistent with our treatment of other portions of its comments filed in this docket.

See supra para. 12.

AAPC Reply Comments at 5-6.

7220

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FCC 07-53

mobile service." We find that a remote community can demonstrate that it is "effectively unserved" by

using coverage maps from service providers, technical analyses, field tests or any other reasonable means.

24.

Determining whether a community is "effectively unserved" necessarily will be a fact-

specific exercise in many cases. As AT&T notes, this phrase is not defined in the WARN Act or in the

legislative history.''^ However, we offer certain guidelines that will assist in making such determinations.

We find that the number of commercial mobile service providers in a given remote area should not serve

as a metric

g whether a community is "effectively unserved" necessarily will be a fact-

specific exercise in many cases. As AT&T notes, this phrase is not defined in the WARN Act or in the

legislative history.''^ However, we offer certain guidelines that will assist in making such determinations.

We find that the number of commercial mobile service providers in a given remote area should not serve

as a metric. Even a single carrier should suffice. Further, the number of subscribers should not be

determinative. While the number and location of commercial mobile service subscribers could serve as

an indicator of where commercial mobile service coverage may be available, there are reasons other than

coverage, including individual consumer choices, that could influence subscribers levels within a given

remote area.

25.

Coverage maps provided by carriers, whether for marketing purposes such as those

displayed on a website, or prepared specifically for grant program purposes, would be a useful source of

information on service availability. First, coverage maps can be easily obtained or produced, and also

would serve as a simple, yet effective and objective means to immediately identify areas that are

"effectively unserved." Second, as suggested by CCDTF and as proposed in the Public Notice, we find

that other means, such as technical analyses and field tests, also are useful tools, and can be employed

when creating coverage maps. We otherwise find no basis to develop bright line tests, such as by percent

of population or land area served. Rather, we find that the better course of action would be to first

determine, following analysis of data describing where coverage exists in a given community, the number

of consumers that live, work, or travel in areas without coverage. Decisions concerning applications for

grants could then be made on a case-by-case basis, based on the relative needs of the "effectively

unserved" areas so identified.

26

we find that the better course of action would be to first

determine, following analysis of data describing where coverage exists in a given community, the number

of consumers that live, work, or travel in areas without coverage. Decisions concerning applications for

grants could then be made on a case-by-case basis, based on the relative needs of the "effectively

unserved" areas so identified.

26.

We conclude that the guidance we provide above best fulfills our obligations under

Section 605(a). With regard to whether procedural requirements or other conditions may be required to

implement the grant program under Section 605(a), we note that Section 605(b)(2) expressly provides the

Under Secretary of Commerce for Oceans and Atmosphere (Under Secretary) with discretionary authority

to "establish such conditions, and require such assurances, as may be appropriate to ensure the efficiency

and integrity of the grant program."'* Because the WARN Act gives this authority to the Under

Secretary, not to the Commission, we find it is not appropriate to address here CCDTF's suggestion that

grantees of the program should be required to work with state and local entities serving people with

disabilities,"*^ or AAPC and MC/LM's requests that lists of communities seeking grants under Section

605(a) be posted.'" At this juncture, we take this opportunity to underscore our long-standing and

ongoing commitment to ensuring that persons with disabilities have equal access to public warnings and

are considered in emergency preparedness planning."

AT&T Comments at 3.

WARN Act, § 605(b)(2).

CCDTF Comments at 3-4.

50 AAPC Reply Comments at 5; MC/LM Comments at 3.

"

See Review of Emergency Alert System, First Report and Order and Further Notice

of Proposed Rulemaking, EB Docket No. 04-296, 20 FCC Red 18625, 18654 ^74 (2(X)5); 47 C.F.R

ith disabilities have equal access to public warnings and

are considered in emergency preparedness planning."

AT&T Comments at 3.

WARN Act, § 605(b)(2).

CCDTF Comments at 3-4.

50 AAPC Reply Comments at 5; MC/LM Comments at 3.

"

See Review of Emergency Alert System, First Report and Order and Further Notice

of Proposed Rulemaking, EB Docket No. 04-296, 20 FCC Red 18625, 18654 ^74 (2(X)5); 47 C.F.R. §§ 73.1250,

79.1, 79.2,79.3; see also Obligation of Video Programming Distributors to Make Emergency Information

Accessible to Persons With Hearing Disabilities Using Closed Captioning, Public Notice, 21 FCC Red 15084

(2006).

7221

Federal Communications Conunisston

FCC 07-53

III.

ORDERING CLAUSES

27.

Accordingly, IT IS ORDERED that, pursuant to Sections 1 and 4(i) of the

Communications Act of 1934, as amended, 47 U.S.C. §§ 151 and 154(i), and Section 605(a) of the

Warning, Alert, and Response Network Act, 47 U.S.C. § 1204(a), this Declaratory Ruling IS HEREBY

ADOPTED as described herein.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

7222

Federal Communications Commission

FCC 07-53

APPENDIX

LIST OF COMMENTERS

Comments filed in Response to the Public Notice in PS Docket No. 07-8

Comments

AT&T Inc., on behalf of its affiliate, AT&T Mobility LLC (AT&T)

Consortium for Citizens with Disabilities Task Force on Telecommunications and Technology (CCDTF)

Maritime Communications/Land Mobile, LLC (MC/LM)

Reply Comments

American Association of Paging Carriers (AAPC)

Telecommunications for the Deaf and Hard of Hearing, Inc.; Association of Late-Deafened Adults;

California Coalition of Agencies Serving the Deaf and Hard of Hearing; Deaf &

Hard of Hearing

Consumer Advocacy Network; Hearing Loss Association of America; and National Association for the

Deaf (collectively, TDI)

7223

U.S. GOVERNMENT PRINTING OFHCE; 2007-330-214-40030

ation of Paging Carriers (AAPC)

Telecommunications for the Deaf and Hard of Hearing, Inc.; Association of Late-Deafened Adults;

California Coalition of Agencies Serving the Deaf and Hard of Hearing; Deaf &

Hard of Hearing

Consumer Advocacy Network; Hearing Loss Association of America; and National Association for the

Deaf (collectively, TDI)

7223

U.S. GOVERNMENT PRINTING OFHCE; 2007-330-214-40030

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