Facilitating the Deployment of Text-to-911 and Other Next Generation 911 Applications, 32169-32179 [2013-12748]
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Federal Register / Vol. 78, No. 103 / Wednesday, May 29, 2013 / Rules and Regulations
dB per decade). Here, ARRL agrees with
the Commission that the slant-range
method may be a slight improvement
over using horizontal distance, but again
repeats its previous argument that
radiated emission levels above the
power lines are stronger than they are at
near-ground levels and contends that
BPL emission measurements should be
made at the level of the power lines, not
close to the ground as specified in the
BPL Measurement Guidelines because
such measurement would not capture
the worst-case emissions. It also reargues that NTIA recommended a 5 dB
correction factor to address this
deficiency but the Commission chose
not to adopt it. The Commission
disposed of the issue regarding receive
antenna height and correction factor in
both the BPL First Order and BPL
Second Order. ARRL did not bring any
new information on reconsideration
here.
19. Finally, ARRL contends that there
would not be any negative effect on BPL
systems if the Commission were to
implement full-time notching of
amateur radio allocations to notch
depths of at least 25 dB and therefore
argues that its request would not be
burdensome to the BPL industry. The
Commission does not believe that it
should require all BPL systems to
permanently notch specific frequencies
at a certain notch depth just because the
technology is capable of doing so. As
stated in the BPL Second Order, to
require that BPL systems permanently
avoid all the amateur radio frequencies
would unnecessarily restrict BPL
operations and leave unused valuable
Access BPL capacity in areas/locations
where no amateur operations are
present that could receive interference.
ARRL did not bring any new
information on reconsideration here.
20. In its opposition to the Petition,
Current Group LLC (Current) contends
that the ARRL Petition is largely a
rehash of previous filings, and that the
Commission should find that the
Petition has failed to make a prima facie
case for reconsideration and summarily
deny it. Similarly, the Edison Electric
Institute and the Utilities Telecom
Council (EEI/UTC) argue that as a
procedural matter, the ARRL’s request
for full-time notching of the entire
amateur band has been rejected before
and may not be raised again in
reconsideration of the BPL Second
Order. The HomePlug Powerline
Alliance (HomePlug) also states that
ARRL’s arguments have already been
fully considered by the Commission no
less than three times in this proceeding
and its Petition should be denied or
dismissed pursuant to § 1.106(p)(3) of
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the Commission rules. As discussed, the
Commission largely agrees with these
oppositions and denies the petition for
reconsideration for the reasons stated.
Ordering Clauses
21. Pursuant to authority contained in
contained in sections 4(i), 301, 302,
303(e), 303(f), 303(r), and 405 of the
Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 301, 302a,
303(e), 303(f), 303(r), 405, and 1.429 of
the Commission’s rules, 47 CFR Section
1.429, that the Petition for
Reconsideration filed by ARRL is
denied.
22. The Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Second Memorandum Opinion and
Order, including the Final Regulatory
Flexibility Certification, to the Chief
Counsel for Advocacy of the Small
Business Administration.
Report to Congress
23. The Commission will not send a
copy of this Second Memorandum
Opinion and Order pursuant to the
Congressional Review Act, see 5 U.S.C.
801(a)(1)(A), because the Commission
did not adopt any new rules here.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2013–12746 Filed 5–28–13; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 20
[PS Docket No. 10–255 and PS Docket No.
11–153; FCC 13–64]
RIN 3060–AJ60
Facilitating the Deployment of Text-to911 and Other Next Generation 911
Applications
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
In this document, the
Commission requires all commercial
mobile radio service (CMRS) providers
and providers of interconnected text
messaging services (i.e., all providers of
software applications that enable a
consumer to send text messages to all or
substantially all text-capable U.S.
telephone numbers and receive text
messages from the same) to provide an
automatic ‘‘bounce-back’’ text message
where a consumer attempts to send a
text message to 911 in a location where
SUMMARY:
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32169
text-to-911 is not available. The rules
are adopted with the goal of reducing
the risk of individuals sending text
messages to 911 during an emergency
and mistakenly believing that 911
authorities had received it, particularly
during the transition to Next Generation
911 (NG911), when text-to-911 will be
available in some areas sooner than
others and may be supported by certain
service providers but not by others.
DATES: This rule is effective June 28,
2013.
FOR FURTHER INFORMATION CONTACT:
Timothy May, Federal Communications
Commission, Public Safety and
Homeland Security Bureau, 445 12th
Street SW., Room 7–A727, Washington,
DC 20554. Telephone: (202) 418–1463,
email: timothy.may@fcc.gov.
SUPPLEMENTARY INFORMATION: In this
Report & Order (R&O), FCC 13–64,
adopted May 8, 2013, and released May
17, 2013, the Commission requires all
CMRS providers and providers of
interconnected text messaging services
(i.e., all providers of software
applications that enable a consumer to
send text messages to all or substantially
all text-capable U.S. telephone numbers
and receive text messages from the
same) (collectively, ‘‘covered text
providers’’) to provide an automatic
‘‘bounce-back’’ text message in
situations where a consumer attempts to
send a text message to 911 in a location
where text-to-911 is not available. The
rules the Commission adopts will
substantially reduce the risk of a person
sending a text message to 911 in an
emergency and mistakenly believing
that 911 authorities have received it.
Instead, the text sender will receive an
immediate response that text-to-911 is
not supported along with direction to
use another means to contact emergency
services, e.g., place a voice call to 911.
Requiring all covered text providers to
implement a bounce-back mechanism is
particularly important because while
deployment of text-to-911 has begun,
the transition is still in the very early
stages and will not be uniform. During
the transition, text-to-911 will be
available in certain geographic areas
sooner than it is available in others and
may be supported by certain service
providers but not by others. At the same
time, as text-to-911 becomes more
widely available, it is likely to generate
increased consumer expectations as to
its availability, which makes it
increasingly important for consumers to
be made aware when it is not available
in an emergency.
The Commission finds that it is
technically feasible for all covered text
providers to provide automatic bounce-
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back messages. The record in this
proceeding indicates that some service
providers already send an automatic
bounce-back message to their
subscribers when a subscriber attempts
to send a text to 911. In addition, the
four largest CMRS providers—AT&T,
Sprint Nextel, T-Mobile, and Verizon—
have voluntarily committed to provide
bounce-back messaging capability
throughout their networks by June 30,
2013. While the Commission finds that
it is technically and economically
feasible for all covered text providers to
implement this capability quickly, the
Commission recognizes that not all
providers may be able to do so by the
June 30, 2013 date to which the four
major carriers are committed. Therefore,
the Commission establishes September
30, 2013 as the deadline for all covered
text providers to implement the bounceback capability required by this R&O.
However, the Commission encourages
covered text providers to implement
bounce-back message capabilities as
soon as possible in order to deal
expeditiously with the existing
consumer confusion about the
availability of text-to-911. Although this
new requirement will impose additional
costs on some of the covered text
providers, the Commission has
determined that these costs are small
and likely will be far exceeded by the
public benefits of substantially reducing
the risk of persons sending a text
message to 911 in an emergency and
mistakenly believing that 911
authorities have received it.
In addition to all CMRS providers, the
Commission extends the bounce-back
requirements adopted in the R&O to all
interconnected text messaging
providers. The Commission defines
interconnected text providers as those
providers that enable a consumer to
send text messages to all or substantially
all text-capable U.S. telephone numbers
and receive text messages from the
same. Such providers of interconnected
text messaging service include providers
that enable the transmission of covered
messages over their own networks or
facilities (e.g., CMRS licensees), as well
as third-party or over-the-top (OTT)
providers that enable the transmission
of covered texts over another providers’
network or facilities, including through
the use of applications downloaded on
mobile phones. For interconnected text
applications on the market prior to the
adoption of the R&O, interconnected
text providers must make an update
available by the September 30, 2013
implementation date. For future
applications not on the market as of the
date of the adoption of this R&O,
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interconnected text providers must
incorporate a bounce-back message
capability into their initial
programming.
The Commission affirms that it is
extending this provision only to
interconnected text message
applications as defined in the R&O, and
not to non-interconnected IP-based
messaging applications that support
communication with a defined set of
users of compatible applications but
that do not support general
communication with text-capable
telephone numbers. Additionally, the
Commission clarifies that the rules
adopted in the R&O do not apply to
voice-only service providers.
For clarity, the Commission states that
the service must be capable of reaching
‘‘all or substantially all’’ text-capable
U.S. telephone numbers and removing
the reference to mobile numbers, since
the North American Numbering Plan
does not make distinctions between
numbers in the plan. The Commission
also affirms that the definition of
interconnected text does not extend to
text messages that are directed by IPbased messaging applications that
support communication with a defined
set of users of compatible applications
but that do not support general
communication with all or substantially
all text-capable telephone numbers.
The Commission adopts its proposal
with certain modifications to address
concerns raised by commenters to the
FNPRM.1 In general, the R&O requires
all covered text providers (i.e., both
CMRS providers and interconnected
text providers) to provide a bounce-back
message when a consumer attempts to
send a text message to a PSAP by means
of the three-digit short code ‘‘911’’ and
the covered text provider cannot deliver
the text because (1) the consumer is
located in an area where text-to-911 is
not available, or (2) the covered text
provider either does not support text-to911 generally or does not support it in
the particular area at the time of the
consumer’s attempted text.
The first scenario addresses the
situation where the PSAP serving the
consumer’s geographic area has not yet
implemented text-to-911 capability. The
Commission includes the second
scenario to address instances where a
covered text provider does not support
text-to-911, even in areas where the
PSAP has implemented text-to-911
capability. This is necessary because
1 In the Matter of Facilitating the Deployment of
Text-to-911 and Other Next Generation 911
Applications Framework for Next Generation 911
Deployment, PS Docket No. 11–153, PS Docket No.
10–255, Further Notice of Proposed Rulemaking, 27
FCC Rcd 15659, 78 FR 1799 (2012) (FNPRM).
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implementation of text-to-911 by
covered text providers will not be
uniform across the nation or within any
given area. For example, most of the
text-to-911 trials and deployments to
date have involved PSAPs only
receiving texts from a single carrier. In
those situations, consumers of other
carriers that are not yet supporting the
PSAP’s trial or deployment will be
unable to send text messages to 911 for
some period of time. Therefore, the
Commission requires these carriers to
provide a bounce-back message to
consumers—even though the PSAP is
making text-to-911 ‘‘available’’ in the
area.
The Commission also notes that the
rule it adopts today requires all covered
text providers to implement bounceback capability even though some
providers contend that they cannot and
should not be required to support textto-911. The Commission has not yet
decided the issue of whether all covered
text providers should be required to
support text-to-911 as proposed in the
FNPRM. That issue remains pending in
this proceeding, and the Commission
does not prejudge it here. However,
regardless of whether all covered text
providers are eventually required to
support text-to-911, the fact that they
provide the ability to text to telephone
numbers generally is likely to lead some
consumers to assume that they also have
text-to-911 capability. This could
further lead consumers to put
themselves at risk by attempting to send
emergency text messages over such
applications. The Commission therefore
concludes that to prevent consumer
confusion and protect life and safety in
such situations, the bounce-back
requirement should apply to all covered
text providers that do not support textto-911 services.
As proposed in the FNPRM, the
Commission requires covered text
providers to provide bounce-back
messages only in those cases where the
provider (or the provider’s text-to-911
vendor) has direct control over the
transmission of the text message.2 The
Commission does not require that a
bounce-back be provided in every
instance where a confirmation of
delivery is not received by the text
provider, because this may include
circumstances outside the text
2 In the case of a preinstalled or downloadable
interconnected text application, the Commission
defines the application provider as having
‘‘control’’ for purposes of the bounce-back
requirement. However, if the user or a third party
modifies or manipulates the application after it is
installed or downloaded so that it no longer
supports bounce-back, the provider will be
presumed not to have control.
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provider’s control. However, the
Commission agrees that a bounce-back
message should be provided when the
text provider cannot determine the
PSAP to which the text should be
routed.
The Commission further clarifies that
the obligation of an interconnected text
provider with respect to providing an
automatic bounce-back message may
differ depending on whether the
application uses an IP-based network or
a CMRS provider’s underlying SMS
network to deliver text messages to textcapable telephone numbers. Some
interconnected text applications use IPbased transmissions to route text
messages to a server, which then
converts the message to SMS if
necessary for delivery to the destination
number.3 In such cases, the
interconnected text service provider is
responsible for delivering an
application-based automatic bounceback message to consumers if and when
text-to-911 is unavailable. Other
interconnected text applications are
configured to transmit text messages in
SMS format directly over the SMS
network of the consumer’s underlying
CMRS provider, which will result in the
application user receiving a bounceback message from the CMRS provider
when text-to-911 is not available.4 In
these cases, where the text message
defaults to the underlying CMRS
provider’s network, the interconnected
text provider satisfies its consumer
notification obligation so long as it does
not prevent or inhibit the CMRS
provider’s automatic bounce-back
message from being delivered to the
application user.
The Commission also requires
covered text providers that are
delivering texts to PSAPs that are
supporting text-to-911 to provide a
mechanism for the PSAP to request
temporary suspension of text for any
reason, including but not limited to
network congestion, call-taker overload,
PSAP failure, or security breach.5 In
those circumstances, the covered text
provider must provide a bounce-back
message to any consumer attempting to
send a text to 911 in the area covered
by the temporary suspension. Covered
text providers must also provide a
mechanism to allow PSAPs to resume
text-to-911 service after such temporary
suspension. The Commission
encourages carriers, interconnected text
messaging providers and PSAPs to
establish standard protocols and
interfaces for triggering these
mechanisms. The Commission also
emphasizes that the bounce-back
requirement will only apply where the
PSAP requests the temporary shutdown
using a notification mechanism
established by the provider or the
provider’s vendor for this purpose. The
Commission encourages PSAPs and
covered text providers to work together
when establishing temporary shutdown
mechanisms, so that both PSAPs and
providers are clearly apprised of their
respective roles and have established
procedures in place for establishing
such temporary shutdowns.
For the reasons of public safety and
public awareness cited above, the
Commission does not find it appropriate
to adopt any form of blanket exemption
of the September 30, 2013 requirement
for CMRS providers and interconnected
text messaging providers that believe
they will not be able to meet the
deadline. Any covered providers who
are unable to implement the bounceback requirement by September 30,
2013 should file a request for waiver.
Waivers or exemptions from these
requirements are best suited to a caseby-case analysis under the waiver
standard, where the facts and
circumstances of each individual case
can be determined on its own merits.6
Notwithstanding the availability of the
waiver process, we emphasize the
important public safety purpose of this
requirement and our expectation that
providers will implement bounce-back
messaging by the deadline.
The Commission requires all covered
text providers to provide an automatic
bounce-back message that includes, at a
minimum, two essential points of
information: (1) That text-to-911 is not
available; and (2) that the consumer
should try to contact 911 using another
means. As an example, a sufficient
bounce-back message that satisfies these
criteria could say: There is no text-to-
3 For example, TextMe (go-text.me/) and Heywire
(www.heywire.com).
4 For example, Apple Messages (www.apple.com/
ios/messages/).
5 See, e.g., FNPRM, 27 FCC Rcd at 15670 para.,
32 & n.70 (proposing and seeking comment on
whether an automatic bounce-back notification
should be provided when, inter alia, a PSAP is
unable to accept texts to 911, including
circumstances where the PSAP may not be able to
handle all incoming text messages, and discussing
the temporary blocking of messages and sending of
return bounce-back messages).
6 The Commission may, on its own motion, waive
its rules for good cause shown. 47 CFR 1.3. See also
Northeast Cellular Telephone Co., L.P. v. FCC, 897
F.2d 1164, 1166 (D.C. Cir. 1990) (‘‘FCC has
authority to waive its rules if there is ‘good cause’
to do so.’’). The Commission may also exercise its
discretion to waive a rule where particular facts
would make strict compliance inconsistent with the
public interest, and grant of a waiver would not
undermine the policy served by the rule. See WAIT
Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969),
aff’d, 459 F.2d 1203 (D.C. Cir. 1972), cert. denied,
409 U.S. 1027 (1972).
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911 service available. Make a voice call
to 911 or use another means to contact
emergency services. The Commission
declines to require covered text
providers to use specific wording.7 The
Commission believes its approach
affords covered text providers with the
necessary guidance and flexibility to
create bounce-back messages that are
understood by their particular consumer
base. In addition, the approach enables
covered text providers to continue to
use the messages they presently have in
operation, to the extent that they
conform to these criteria.8 This
approach also provides sufficient
uniformity in automatic bounce-back
messages to allow for consistent training
and public education materials.
Additionally, the Commission
requires all CMRS providers to provide
an automatic bounce-back message
when a consumer roaming on a network
initiates a text-to-911 in an area where
text-to-911 service is not available.
Consumers roaming on other carriers’
networks have an expectation that they
can access 911 services in an
emergency. Given the important safety
of life implications, carriers should
make automatic bounce-back messages
available to consumers roaming on their
network to the same extent they provide
such messages to their own subscribers.
The Commission recognizes that
certain legacy devices are not capable of
sending text messages to a three-digit
short code. For those devices that are
not capable of generating messages to
911 and whose text messaging software
cannot be upgraded over the air (e.g.,
through a push software upgrade), the
CMRS provider will never receive a
message and thus cannot generate a
bounce-back message.9 The Commission
clarifies that legacy devices that are
incapable of sending texts via three digit
short codes are not subject to the
bounce-back message requirement,
7 The Commission notes that its action does not
preclude the voluntary adoption of a common
automatic bounce-back message by covered text
providers, developed by industry in coordination
with public safety, consumer groups, disability
rights advocates, and other interested parties. The
Commission encourages close and continued
coordination among all relevant parties to ensure
the successful implementation of the automatic
bounce-back message requirement.
8 Examples of current bounce-back messages that
would satisfy our criteria include those offered by
Heywire (‘‘Heywire does not support Enhanced 911.
If you are in need of emergency services, please dial
911 on your landline or mobile phone’’) and
Verizon (‘‘Please make a voice call to 911. There is
no text service to 911 available at this time’’).
9 See Motorola Mobility Comments at 2–3
(arguing that the proposed bounce-back message
requirement would not help customers who may be
located in an area where text-to-911 is supported
but who are using a device that is not technically
capable of sending a three digit short code).
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provided the software for these devices
cannot be upgraded over the air to allow
text-to-911. In such cases, the messaging
application or interface on the mobile
device will likely provide an error
message indicating an invalid
destination number, reducing user
confusion somewhat even if the message
is less specific than the bounce-back
message. If the text messaging software
can be upgraded, however, the
Commission treats such devices in the
same manner as the software offered by
interconnected text providers.
The Commission clarifies that CMRS
providers are not required to provide an
automatic bounce-back message when a
consumer attempts to text 911 on a nonservice initialized phone. Deliberations
of the EAAC have affirmed that the text
capability of non-service initialized
handsets is neither technically nor
economically feasible.10 At the same
time, the Commission notes that some
providers may provide text messaging
solutions that allow users to send text
messages even on NSI phones (e.g., WiFi-enabled text applications). The
Commission clarifies that those text
providers must still provide bounceback messaging consistent with the
rules we adopt today.
Finally, the Commission declines to
require covered text providers to
provide consumers with text-to-911
testing capability at this time. Until
operational experience indicates
otherwise, the Commission believes that
consumer education efforts should
discourage the sending of texts to 911
except in actual emergencies.
The Commission has already
committed the Public Safety and
Homeland Security Bureau (PSHSB) and
the Consumer and the Consumer and
Governmental Affairs Bureau (CGB) to
implement a comprehensive consumer
education program concerning text-to911, and to coordinate their efforts with
state and local 911 authorities, other
federal and state agencies, public safety
organizations, industry, disability
organizations, and consumer groups.
The Commission directs PSHSB and
CGB to put in place a consumer
information Web site that provides the
public with information and
instructions on how and when to use
text-to-911 no later than June 30, 2013.
The R&O is available at https://
www.fcc.gov/document/text-911bounce-back-message-order.
10 See, e.g., Report of Emergency Access Advisory
Committee (EAAC) Subcommittee 1 on Interim Text
Messaging to 9–1–1, March 1, 2013 at 9.
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Procedural Matters
Paperwork Reduction Act
The R&O does not contain new
information collection requirements
subject to the Paperwork Reduction Act
of 1995 (PRA), Public Law No. 104–13.
Therefore, it does not contain any new
or modified information collection
burden for small business concerns with
fewer than 25 employees, pursuant to
the Small Business Paperwork Relief
Act of 2002, Public Law 107–198.
Congressional Review Act
The Commission will send a copy of
this Report & Order to Congress and the
Government Accountability Office
pursuant to the Congressional Review
Act, see 5 U.S.C. 801(a)(1)(A).
Final Regulatory Flexibility Analysis
As required by the Regulatory
Flexibility Act (RFA),11 the Commission
has prepared this present Final
Regulatory Flexibility Analysis (FRFA)
of the possible significant economic
impact on small entities by the policies
and rules proposed in this R&O. The
Commission will send a copy of this
R&O, including this FRFA, to the Chief
Counsel for Advocacy of the Small
Business Administration (SBA).12 In
addition, the R&O and FRFA (or
summaries thereof) will be published in
the Federal Register.13
A. Need for, and Objectives of, the
Proposed Rules
In this Report & Order (R&O), the
Commission requires all CMRS
providers and providers of
interconnected text messaging services
(i.e., all providers of software
applications that enable a consumer to
send text messages to all or substantially
all text-capable U.S. telephone numbers
and receive text messages from the
same) to provide an automatic ‘‘bounceback’’ text message in situations where
a consumer attempts to send a text
message to 911 in a location where textto-911 is not available. The rules the
Commission adopts in R&O will
substantially reduce the risk of a person
sending a text message to 911 in an
emergency and mistakenly believing
that 911 authorities have received it.
Instead, the text sender will receive an
immediate response that text-to-911 is
not supported along with direction to
11 See 5 U.S.C. 603. The RFA, see 5 U.S.C.. 601
et. seq., has been amended by the Contract With
America Advancement Act of 1996, Public Law
104–121, 110 Stat. 847 (1996) (CWAAA). Title II of
the CWAAA is the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA).
12 See 5 U.S.C. 603(a).
13 See id.
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use another means to contact emergency
services.
Requiring all CMRS providers and
interconnected text providers to
implement a bounce-back mechanism is
particularly important because while
deployment of text-to-911 has begun,
the transition is still in the very early
stages and will not be uniform. During
the transition, text-to-911 will be
available in certain geographic areas
sooner than it is available in others and
may be supported by certain service
providers but not by others. At the same
time, as text-to-911 becomes more
widely available, it is likely to generate
increased consumer expectations as to
its availability, which makes it
increasingly important for consumers to
be made aware when it is not available
in an emergency.
The record in this proceeding
indicates that some service providers
already send an automatic bounce-back
message to their subscribers when a
subscriber attempts to send a text to
911. In addition, the four largest CMRS
providers—AT&T, Sprint Nextel, TMobile, and Verizon—have voluntarily
committed to provide bounce-back
messaging capability throughout their
networks by June 30, 2013. In this R&O,
the Commission builds on this
voluntary commitment and concludes
that all CMRS providers and
interconnected text providers
(collectively, ‘‘covered text providers’’)
should be required to provide this
capability. The Commission further
specifies the circumstances under
which a bounce-back message must be
provided and the information that the
message must contain. Finally, while
the Commission finds it is technically
and economically feasible for all
covered text providers to implement
this capability quickly, the Commission
recognizes that not all providers may be
able to do so by the June 30, 2013 date
to which the four major carriers are
committed. Therefore, the Commission
establishes September 30, 2013 as the
deadline for all covered text providers
to implement the bounce-back
capability required by this R&O.
However, the Commission encourages
covered text providers to implement
bounce-back message capabilities as
soon as possible in order to deal
expeditiously with the existing
consumer confusion about the
availability of text-to-911. Although this
new requirement will impose additional
costs on some of the covered text
providers, the Commission has
determined that these costs likely will
be far exceeded by the public benefits of
substantially reducing the risk of
persons sending a text message to 911
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in an emergency and mistakenly
believing that 911 authorities have
received it.
B. Summary of Significant Issues Raised
by Public Comments in Response to the
IRFA
No commenter raised issues in
response to the bounce-back portion of
the IRFA included in the FNPRM. The
Commission concludes that the
proposed mandates here provide
covered text providers and Public Safety
Answering Points (PSAPs) with a
sufficient measure of flexibility to
account for technical and cost-related
concerns. In the event that small entities
face unique circumstances that restrict
their ability to comply with the
Commission’s rules, the Commission
can address them through the waiver
process. The Commission has
determined that implementing bounceback messages is technically feasible
and the cost of implementation is small.
C. Description and Estimate of the
Number of Small Entities to Which the
Proposed Rules Will Apply
The RFA directs agencies to provide
a description of, and, where feasible, an
estimate of the number of small entities
that may be affected by the rules
adopted, herein.14 The RFA generally
defines the term ‘‘small entity’’ as
having the same meaning as the terms
‘‘small business,’’ ‘‘small organization,’’
and ‘‘small governmental
jurisdiction.’’ 15 In addition, the term
‘‘small business’’ has the same meaning
as the term ‘‘small business concern’’
under the Small Business Act.16 A
‘‘small business concern’’ is one which:
(1) Is independently owned and
operated; (2) is not dominant in its field
of operation; and (3) satisfies any
additional criteria established by the
SBA.17 Below, the Commission
describes and estimates the number of
small entity licensees that may be
affected by the adopted rules of this
R&O.
Small Businesses, Small
Organizations, and Small Governmental
Jurisdictions. As of 2009, small
businesses represented 99.9% of the
14 5
U.S.C. 603(b)(3).
U.S.C. 601(6).
16 5 U.S.C. 601(3) (incorporating by reference the
definition of ‘‘small-business concern’’ in the Small
Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C.
601(3), the statutory definition of a small business
applies ‘‘unless an agency, after consultation with
the Office of Advocacy of the Small Business
Administration and after opportunity for public
comment, establishes one or more definitions of
such term which are appropriate to the activities of
the agency and publishes such definition(s) in the
Federal Register.’’
17 15 U.S.C. 632.
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27.5 million businesses in the United
States, according to the SBA.18
Additionally, a ‘‘small organization’’ is
generally ‘‘any not-for-profit enterprise
which is independently owned and
operated and is not dominant in its
field.’’ 19 Nationwide, as of 2007, there
were approximately 1,621,315 small
organizations.20 Finally, the term ‘‘small
governmental jurisdiction’’ is defined
generally as ‘‘governments of cities,
counties, towns, townships, villages,
school districts, or special districts, with
a population of less than fifty
thousand.’’21 Census Bureau data for
2007 indicate that there were 89,527
governmental jurisdictions in the
United States.22 The Commission
estimates that, of this total, as many as
88,761 entities may qualify as ‘‘small
governmental jurisdictions.’’23 Thus, the
Commission estimates that most
governmental jurisdictions are small.
1. Wireless Telecommunications Service
Providers
Below, for those services subject to
auctions, the Commission notes that, as
a general matter, the number of winning
bidders that qualify as small businesses
at the close of an auction does not
necessarily represent the number of
small businesses currently in service.
18 See SBA, Office of Advocacy, ‘‘Frequently
Asked Questions,’’ available at https://web.sba.gov/
faqs/faqindex.cfm?areaID=24 (last visited Dec. 11,
2012).
19 5 U.S.C. 601(4).
20 INDEPENDENT SECTOR, THE NEW
NONPROFIT ALMANAC & DESK REFERENCE
(2010).
21 5 U.S.C. 601(5).
22 U.S. CENSUS BUREAU, STATISTICAL
ABSTRACT OF THE UNITED STATES: 2011, Table
427 (2007).
23 The 2007 U.S. Census data for small
governmental organizations are not presented based
on the size of the population in each such
organization. There were 89,476 local governmental
organizations in 2007. If we assume that county,
municipal, township, and school district
organizations are more likely than larger
governmental organizations to have populations of
50,000 or less, the total of these organizations is
52,095. If we make the same population assumption
about special districts, specifically that they are
likely to have a population of 50,000 or less, and
also assume that special districts are different from
county, municipal, township, and school districts,
in 2007 there were 37,381 such special districts.
Therefore, there are a total of 89,476 local
government organizations. As a basis of estimating
how many of these 89,476 local government
organizations were small, in 2011, we note that
there were a total of 715 cities and towns
(incorporated places and minor civil divisions) with
populations over 50,000. CITY AND TOWNS
TOTALS: VINTAGE 2011—U.S. Census Bureau,
available at https://www.census.gov/popest/data/
cities/totals/2011/. If we subtract the 715
cities and towns that meet or exceed the 50,000
population threshold, we conclude that
approximately 88,761 are small. U.S. CENSUS
BUREAU, STATISTICAL ABSTRACT OF THE
UNITED STATES 2011, Tables 427, 426 (Data cited
therein are from 2007).
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32173
Also, the Commission does not
generally track subsequent business size
unless, in the context of assignments or
transfers, unjust enrichment issues are
implicated.
Wireless Telecommunications
Carriers (except satellite). This industry
comprises establishments engaged in
operating and maintaining switching
and transmission facilities to provide
communications via the airwaves.
Establishments in this industry have
spectrum licenses and provide services
using that spectrum, such as cellular
phone services, paging services,
wireless Internet access, and wireless
video services.24 The appropriate size
standard under SBA rules is for the
category Wired Telecommunications
Carriers. Under that size standard, such
a business is small if it has 1,500 or
fewer employees.25 Census Bureau data
for 2007, which now supersede data
from the 2002 Census, show that there
were 3,188 firms in this category that
operated for the entire year. Of this
total, 3,144 had employment of 999 or
fewer, and 44 firms had employment of
1,000 employees or more. Thus under
this category and the associated small
business size standard, the Commission
estimates that the majority of wireless
telecommunications carriers (except
satellite) are small entities that may be
affected by our actions.26
Incumbent Local Exchange Carriers
(Incumbent LECs). Neither the
Commission nor the SBA has developed
a size standard for small businesses
specifically applicable to incumbent
local exchange services. The closest
applicable size standard under SBA
rules is for Wired Telecommunications
Carriers. Under that size standard, such
a business is small if it has 1,500 or
fewer employees.27 According to
Commission data, 1,307 carriers
reported that they were incumbent local
exchange service providers.28 Of these
1,307 carriers, an estimated 1,006 have
1,500 or fewer employees and 301 have
more than 1,500 employees.29
Consequently, the Commission
estimates that most providers of
incumbent local exchange service are
24 https://www.census.gov/cgi-bin/sssd/naics/
naicsrch?code=517210&search=2007%20NAICS
%20Search.
25 13 CFR 121.201, NAICS code 517110.
26 See https://factfinder.census.gov/servlet/IBQ
Table?_bm=y&-fds_name=EC0700A1&-geo_id=&-_
skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
27 See 13 CFR 121.201, NAICS code 517110.
28 See Federal Communications Commission,
Trends in Telephone Service (Sep. 2010) at Table
5.3, available at https://hraunfoss.fcc.gov/
edocs_public/attachmatch/DOC-301823A1.pdf (last
accessed Apr. 25, 2013).
29 See id.
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small businesses that may be affected by
rules adopted pursuant to the NPRM.
The Commission has included small
incumbent LECs in this present RFA
analysis. As noted above, a ‘‘small
business’’ under the RFA is one that,
inter alia, meets the pertinent small
business size standard (e.g., a telephone
communications business having 1,500
or fewer employees), and ‘‘is not
dominant in its field of operation.’’ 30
The SBA’s Office of Advocacy contends
that, for RFA purposes, small incumbent
LECs are not dominant in their field of
operation because any such dominance
is not ‘‘national’’ in scope.31 The
Commission has therefore included
small incumbent LECs in this RFA
analysis, although it emphasizes that
this RFA action has no effect on
Commission analyses and
determinations in other, non-RFA
contexts.
Competitive Local Exchange Carriers
(Competitive LECs), Competitive Access
Providers (CAPs), Shared-Tenant
Service Providers, and Other Local
Service Providers. Neither the
Commission nor the SBA has developed
a small business size standard
specifically for these service providers.
The appropriate size standard under
SBA rules is for the category Wired
Telecommunications Carriers. Under
that size standard, such a business is
small if it has 1,500 or fewer
employees.32 According to Commission
data, 1,442 carriers reported that they
were engaged in the provision of either
competitive local exchange services or
competitive access provider services.33
Of these 1,442 carriers, an estimated
1,256 have 1,500 or fewer employees
and 186 have more than 1,500
employees.34 In addition, 17 carriers
have reported that they are SharedTenant Service Providers, and all 17 are
estimated to have 1,500 or fewer
employees.35 In addition, 72 carriers
have reported that they are Other Local
Service Providers.36 Of the 72, seventy
have 1,500 or fewer employees and two
have more than 1,500 employees.37
30 5
U.S.C. 601(3).
Letter from Jere W. Glover, Chief Counsel
for Advocacy, SBA, to William E. Kennard,
Chairman, FCC (May 27, 1999). The Small Business
Act contains a definition of ‘‘small business
concern,’’ which the RFA incorporates into its own
definition of ‘‘small business.’’ See 15 U.S.C. 632(a);
see also 5 U.S.C. 601(3). SBA regulations interpret
‘‘small business concern’’ to include the concept of
dominance on a national basis. See 13 CFR
121.102(b).
32 See 13 CFR 121.201, NAICS code 517110.
33 See Trends in Telephone Service at Table 5.3.
34 See id.
35 See id.
36 See id.
37 See id.
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Consequently, the Commission
estimates that most providers of
competitive local exchange service,
competitive access providers, SharedTenant Service Providers, and Other
Local Service Providers are small
entities that may be affected by rules
adopted pursuant to the NPRM.
Broadband Personal Communications
Service. The broadband personal
communications services (PCS)
spectrum is divided into six frequency
blocks designated A through F, and the
Commission has held auctions for each
block. The Commission initially defined
a ‘‘small business’’ for C- and F-Block
licenses as an entity that has average
gross revenues of $40 million or less in
the three previous calendar years.38 For
F-Block licenses, an additional small
business size standard for ‘‘very small
business’’ was added and is defined as
an entity that, together with its affiliates,
has average gross revenues of not more
than $15 million for the preceding three
calendar years.39 These small business
size standards, in the context of
broadband PCS auctions, have been
approved by the SBA.40 No small
businesses within the SBA-approved
small business size standards bid
successfully for licenses in Blocks A
and B. There were 90 winning bidders
that claimed small business status in the
first two C-Block auctions. A total of 93
bidders that claimed small business
status won approximately 40 percent of
the 1,479 licenses in the first auction for
the D, E, and F Blocks.41 On April 15,
1999, the Commission completed the
reauction of 347 C-, D-, E-, and F-Block
licenses in Auction No. 22.42 Of the 57
winning bidders in that auction, 48
claimed small business status and won
277 licenses.
On January 26, 2001, the Commission
completed the auction of 422 C and F
38 See Amendment of Parts 20 and 24 of the
Commission’s Rules—Broadband PCS Competitive
Bidding and the Commercial Mobile Radio Service
Spectrum Cap; Amendment of the Commission’s
Cellular/PCS Cross-Ownership Rule; WT Docket No.
96–59, GN Docket No. 90–314, Report and Order,
11 FCC Rcd 7824, 7850–52, paras. 57–60 (1996)
(‘‘PCS Report and Order’’); see also 47 CFR
24.720(b).
39 See PCS Report and Order, 11 FCC Rcd at 7852,
para. 60.
40 See Alvarez Letter 1998.
41 See Broadband PCS, D, E and F Block Auction
Closes, Public Notice, Doc. No. 89838 (rel. Jan. 14,
1997).
42 See C, D, E, and F Block Broadband PCS
Auction Closes, Public Notice, 14 FCC Rcd 6688
(WTB 1999). Before Auction No. 22, the
Commission established a very small standard for
the C Block to match the standard used for F Block.
Amendment of the Commission’s Rules Regarding
Installment Payment Financing for Personal
Communications Services (PCS) Licensees, WT
Docket No. 97–82, Fourth Report and Order, 13 FCC
Rcd 15743, 15768, para. 46 (1998).
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Block Broadband PCS licenses in
Auction No. 35. Of the 35 winning
bidders in that auction, 29 claimed
small business status.43 Subsequent
events concerning Auction 35,
including judicial and agency
determinations, resulted in a total of 163
C and F Block licenses being available
for grant. On February 15, 2005, the
Commission completed an auction of
242 C-, D-, E-, and F-Block licenses in
Auction No. 58. Of the 24 winning
bidders in that auction, 16 claimed
small business status and won 156
licenses.44 On May 21, 2007, the
Commission completed an auction of 33
licenses in the A, C, and F Blocks in
Auction No. 71.45 Of the 12 winning
bidders in that auction, five claimed
small business status and won 18
licenses.46 On August 20, 2008, the
Commission completed the auction of
20 C-, D-, E-, and F-Block Broadband
PCS licenses in Auction No. 78.47 Of the
eight winning bidders for Broadband
PCS licenses in that auction, six claimed
small business status and won 14
licenses.48
Narrowband Personal
Communications Services. To date, two
auctions of narrowband personal
communications services (PCS) licenses
have been conducted. For purposes of
the two auctions that have already been
held, ‘‘small businesses’’ were entities
with average gross revenues for the prior
three calendar years of $40 million or
less. Through these auctions, the
Commission has awarded a total of 41
licenses, out of which 11 were obtained
by small businesses. To ensure
meaningful participation of small
business entities in future auctions, the
Commission has adopted a two-tiered
small business size standard in the
Narrowband PCS Second Report and
Order.49 A ‘‘small business’’ is an entity
that, together with affiliates and
controlling interests, has average gross
43 See C and F Block Broadband PCS Auction
Closes; Winning Bidders Announced, Public Notice,
16 FCC Rcd 2339 (2001).
44 See Broadband PCS Spectrum Auction Closes;
Winning Bidders Announced for Auction No. 58,
Public Notice, 20 FCC Rcd 3703 (2005).
45 See Auction of Broadband PCS Spectrum
Licenses Closes; Winning Bidders Announced for
Auction No. 71, Public Notice, 22 FCC Rcd 9247
(2007).
46 Id.
47 See Auction of AWS–1 and Broadband PCS
Licenses Closes; Winning Bidders Announced for
Auction 78, Public Notice, 23 FCC Rcd 12749 (WTB
2008).
48 Id.
49 Amendment of the Commission’s Rules to
Establish New Personal Communications Services,
Narrowband PCS, GEN Docket No. 90–314, ET
Docket No. 92–100, PP Docket No. 93–253, Second
Report and Order and Second Further Notice of
Proposed Rulemaking, 15 FCC Rcd 10456 (2000).
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revenues for the three preceding years of
not more than $40 million. A ‘‘very
small business’’ is an entity that,
together with affiliates and controlling
interests, has average gross revenues for
the three preceding years of not more
than $15 million. The SBA has
approved these small business size
standards.50
Rural Radiotelephone Service. The
Commission has not adopted a size
standard for small businesses specific to
the Rural Radiotelephone Service. A
significant subset of the Rural
Radiotelephone Service is the Basic
Exchange Telephone Radio System
(‘‘BETRS’’). In the present context, the
Commission uses the SBA’s small
business size standard applicable to
Wireless Telecommunications Carriers
(except Satellite), i.e., an entity
employing no more than 1,500
persons.51 There are approximately
1,000 licensees in the Rural
Radiotelephone Service, and the
Commission estimates that there are
1,000 or fewer small entity licensees in
the Rural Radiotelephone Service that
may be affected by the rules and
policies adopted herein.
Wireless Communications Services.
This service can be used for fixed,
mobile, radiolocation, and digital audio
broadcasting satellite uses in the 2305–
2320 MHz and 2345–2360 MHz bands.
The Commission defined ‘‘small
business’’ for the wireless
communications services (WCS) auction
as an entity with average gross revenues
of $40 million for each of the three
preceding years, and a ‘‘very small
business’’ as an entity with average
gross revenues of $15 million for each
of the three preceding years.52 The SBA
has approved these definitions.53 The
Commission auctioned geographic area
licenses in the WCS service. In the
auction, which commenced on April 15,
1997 and closed on April 25, 1997, there
were seven bidders that won 31 licenses
that qualified as very small business
entities, and one bidder that won one
license that qualified as a small business
entity.
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50 See
Letter to Amy Zoslov, Chief, Auctions and
Industry Analysis Division, Wireless
Telecommunications Bureau, FCC, from Aida
Alvarez, Administrator, SBA (Dec. 2, 1998).
51 NAICS Code 51210.
52 Amendment of the Commission’s Rules to
Establish Part 27, the Wireless Communications
Service (WCS), Report and Order, 12 FCC Rcd
10785, 10879 para. 194 (1997).
53 See Letter to Amy Zoslov, Chief, Auctions and
Industry Analysis Division, Wireless
Telecommunications Bureau, Federal
Communications Commission, from Aida Alvarez,
Administrator, Small Business Administration,
dated December 2, 1998.
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220 MHz Radio Service—Phase I
Licensees. The 220 MHz service has
both Phase I and Phase II licenses. Phase
I licensing was conducted by lotteries in
1992 and 1993. There are approximately
1,515 such non-nationwide licensees
and four nationwide licensees currently
authorized to operate in the 220 MHz
band. The Commission has not
developed a small business size
standard for small entities specifically
applicable to such incumbent 220 MHz
Phase I licensees. To estimate the
number of such licensees that are small
businesses, the Commission applies the
small business size standard under the
SBA rules applicable. The SBA has
deemed a wireless business to be small
if it has 1,500 or fewer employees.54 For
this service, the SBA uses the category
of Wireless Telecommunications
Carriers (except Satellite). Census data
for 2007, which supersede data
contained in the 2002 Census, show that
there were 1,383 firms that operated that
year.55 Of those 1,383, 1,368 had fewer
than 100 employees, and 15 firms had
more than 100 employees. Thus under
this category and the associated small
business size standard, the majority of
firms can be considered small.
220 MHz Radio Service—Phase II
Licensees. The 220 MHz service has
both Phase I and Phase II licenses. The
Phase II 220 MHz service is a new
service, and is subject to spectrum
auctions. In the 220 MHz Third Report
and Order, the Commission adopted a
small business size standard for
defining ‘‘small’’ and ‘‘very small’’
businesses for purposes of determining
their eligibility for special provisions
such as bidding credits and installment
payments.56 This small business
standard indicates that a ‘‘small
business’’ is an entity that, together with
its affiliates and controlling principals,
has average gross revenues not
exceeding $15 million for the preceding
three years.57 A ‘‘very small business’’ is
defined as an entity that, together with
its affiliates and controlling principals,
has average gross revenues that do not
exceed $3 million for the preceding
54 13 CFR 121.201, NAICS code 517210 (2007
NAICS). The now-superseded, pre-2007 CFR
citations were 13 CFR 121.201, NAICS codes
517211 and 517212 (referring to the 2002 NAICS).
55 U.S. Census Bureau, 2007 Economic Census,
Sector 51, 2007 NAICS code 517210 (rel. Oct. 20,
2009), https://factfinder.census.gov/servlet/
IBQTable?_bm=y&-geo_id=&fds_name=EC0700A1&-_skip=700&ds_name=EC0751SSSZ5&-_lang=en.
56 Amendment of Part 90 of the Commission’s
Rules to Provide For the Use of the 220–222 MHz
Band by the Private Land Mobile Radio Service,
Third Report and Order, 12 FCC Rcd 10943, 11068–
70 paras. 291–295 (1997).
57 Id. at 11068 para. 291.
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32175
three years.58 The SBA has approved
these small size standards.59 Auctions of
Phase II licenses commenced on and
closed in 1998.60 In the first auction,
908 licenses were auctioned in three
different-sized geographic areas: Three
nationwide licenses, 30 Regional
Economic Area Group (EAG) Licenses,
and 875 Economic Area (EA) Licenses.
Of the 908 licenses auctioned, 693 were
sold.61 Thirty-nine small businesses
won 373 licenses in the first 220 MHz
auction. A second auction included 225
licenses: 216 EA licenses and 9 EAG
licenses. Fourteen companies claiming
small business status won 158
licenses.62 A third auction included four
licenses: 2 BEA licenses and 2 EAG
licenses in the 220 MHz Service. No
small or very small business won any of
these licenses.63 In 2007, the
Commission conducted a fourth auction
of the 220 MHz licenses.64 Bidding
credits were offered to small businesses.
A bidder with attributed average annual
gross revenues that exceeded $3 million
and did not exceed $15 million for the
preceding three years (‘‘small business’’)
received a 25 percent discount on its
winning bid. A bidder with attributed
average annual gross revenues that did
not exceed $3 million for the preceding
three years received a 35 percent
discount on its winning bid (‘‘very small
business’’). Auction 72, which offered
94 Phase II 220 MHz Service licenses,
concluded in 2007.65 In this auction,
five winning bidders won a total of 76
licenses. Two winning bidders
identified themselves as very small
businesses won 56 of the 76 licenses.
One of the winning bidders that
58 Id.
59 See Letter to Daniel Phythyon, Chief, Wireless
Telecommunications Bureau, Federal
Communications Commission, from Aida Alvarez,
Administrator, Small Business Administration,
dated January 6, 1998 (Alvarez to Phythyon Letter
1998).
60 See generally ‘‘220 MHz Service Auction
Closes,’’ Public Notice, 14 FCC Rcd 605 (WTB
1998).
61 See ‘‘FCC Announces It is Prepared to Grant
654 Phase II 220 MHz Licenses After Final Payment
is Made,’’ Public Notice, 14 FCC Rcd 1085 (WTB
1999).
62 See ‘‘Phase II 220 MHz Service Spectrum
Auction Closes,’’ Public Notice, 14 FCC Rcd 11218
(WTB 1999).
63 See ‘‘Multi-Radio Service Auction Closes,’’
Public Notice, 17 FCC Rcd 1446 (WTB 2002).
64 See ‘‘Auction of Phase II 220 MHz Service
Spectrum Scheduled for June 20, 2007, Notice and
Filing Requirements, Minimum Opening Bids,
Upfront Payments and Other Procedures for
Auction 72, Public Notice, 22 FCC Rcd 3404 (2007).
65 See ‘‘Auction of Phase II 220 MHz Service
Spectrum Licenses Closes, Winning Bidders
Announced for Auction 72, Down Payments due
July 18, 2007, FCC Forms 601 and 602 due July 18,
2007, Final Payments due August 1, 2007, Ten-Day
Petition to Deny Period, Public Notice, 22 FCC Rcd
11573 (2007).
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identified themselves as a small
business won 5 of the 76 licenses won.
Wireless Telephony. Wireless
telephony includes cellular, personal
communications services, and
specialized mobile radio telephony
carriers. As noted, the SBA has
developed a small business size
standard for Wireless
Telecommunications Carriers (except
Satellite).66 Under the SBA small
business size standard, a business is
small if it has 1,500 or fewer
employees.67 According to Trends in
Telephone Service data, 413 carriers
reported that they were engaged in
wireless telephony.68 Of these, an
estimated 261 have 1,500 or fewer
employees and 152 have more than
1,500 employees.69 Therefore, more
than half of these entities can be
considered small.
Satellite Telecommunications
Providers. Two economic census
categories address the satellite industry.
The first category has a small business
size standard of $15 million or less in
average annual receipts, under SBA
rules.70 The second has a size standard
of $25 million or less in annual
receipts.71
The category of Satellite
Telecommunications ‘‘comprises
establishments primarily engaged in
providing telecommunications services
to other establishments in the
telecommunications and broadcasting
industries by forwarding and receiving
communications signals via a system of
satellites or reselling satellite
telecommunications.’’ 72 Census Bureau
data for 2007 show that 512 Satellite
Telecommunications firms that operated
for that entire year.73 Of this total, 464
firms had annual receipts of under $10
million, and 18 firms had receipts of
$10 million to $24,999,999.74
Consequently, the Commission
estimates that the majority of Satellite
Telecommunications firms are small
entities that might be affected by our
action.
The second category, i.e., ‘‘All Other
Telecommunications,’’ comprises
‘‘establishments primarily engaged in
providing specialized
66 13
CFR 121.201, NAICS code 517210.
67 Id.
68 Trends
in Telephone Service at Table 5.3.
69 Id.
70 13
CFR 121.201, NAICS code 517410.
CFR 121.201, NAICS code 517919.
72 U.S. Census Bureau, 2007 NAICS Definitions,
‘‘517410 Satellite Telecommunications.’’
73 See https://factfinder.census.gov/servlet/IBQ
Table?_bm=y&-geo_id=&-_skip=900&-ds_name=
EC0751SSSZ4&-_lang=en.
74 https://factfinder.census.gov/servlet/IBQTable?_
bm=y&-geo_id=&-_skip=900&-ds_name=
EC0751SSSZ4&-_lang=en.
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71 13
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telecommunications services, such as
satellite tracking, communications
telemetry, and radar station operation.
This industry also includes
establishments primarily engaged in
providing satellite terminal stations and
associated facilities connected with one
or more terrestrial systems and capable
of transmitting telecommunications to,
and receiving telecommunications from,
satellite systems. Establishments
providing Internet services or Voice
over Internet Protocol (VoIP) services
via client-supplied telecommunications
connections are also included in this
industry.’’ 75 For this category, Census
Bureau data for 2007 show that there
were a total of 2,383 firms that operated
for the entire year.76 Of this total, 2,346
firms had annual receipts of under $25
million and 37 firms had annual
receipts of $25 million to $49,
999,999.77 Consequently, the
Commission estimates that the majority
of All Other Telecommunications firms
are small entities that might be affected
by our action.
2. Equipment Manufacturers
Radio and Television Broadcasting
and Wireless Communications
Equipment Manufacturing. The Census
Bureau defines this category as follows:
‘‘This industry comprises
establishments primarily engaged in
manufacturing radio and television
broadcast and wireless communications
equipment. Examples of products made
by these establishments are:
Transmitting and receiving antennas,
cable television equipment, GPS
equipment, pagers, cellular phones,
mobile communications equipment, and
radio and television studio and
broadcasting equipment.’’ 78 The SBA
has developed a small business size
standard for firms in this category,
which is: All such firms having 750 or
fewer employees.79 According to Census
Bureau data for 2010, there were a total
of 810 establishments in this category
that operated for the entire year.80 Of
75 https://www.census.gov/cgi-bin/sssd/naics/
naicsrch?code=517919&search=2007%20
NAICS%20Search.
76 U.S. Censhttps://factfinder.census.gov/servlet/
IBQTable?_bm=y&-geo_id=&-_skip=900&-ds_name
=EC0751SSSZ4&-_lang=en.
77 https://factfinder.census.gov/servlet/IBQTable?_
bm=y&-geo_id=&-_skip=900&-ds_name=
EC0751SSSZ4&-_lang=en.
78 U.S. Census Bureau, 2007 NAICS Definitions,
‘‘334220 Radio and Television Broadcasting and
Wireless Communications Equipment
Manufacturing’’; https://www.census.gov/naics/
2007/def/ND334220.HTM#N334220.
79 13 CFR 121.201, NAICS code 334220.
80 U.S. Census Bureau, American FactFinder,
2010 Economic Census, Industry Series, Industry
Statistics by Employment Size, NAICS code 334220
(released June 26, 2012); https://
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this total, 787 had employment of fewer
than 500, and an additional 23 had
employment of 500 to 999.81 Thus,
under this size standard, the majority of
firms can be considered small.
Semiconductor and Related Device
Manufacturing. These establishments
manufacture ‘‘computer storage devices
that allow the storage and retrieval of
data from a phase change, magnetic,
optical, or magnetic/optical media. The
SBA has developed a small business
size standard for this category of
manufacturing; that size standard is 500
or fewer employees’ storage and
retrieval of data from a phase change,
magnetic, optical, or magnetic/optical
media.’’ 82 According to data from the
2007 U.S. Census, in 2007, there were
954 establishments engaged in this
business. Of these, 545 had from 1 to 19
employees; 219 had from 20 to 99
employees; and 190 had 100 or more
employees.83 Based on this data, the
Commission concludes that the majority
of the businesses engaged in this
industry are small.
3. Information Service and Software
Providers
Software Publishers. Since 2007 these
services have been defined within the
broad economic census category of
Custom Computer Programming
Services; that category is defined as
establishments primarily engaged in
writing, modifying, testing, and
supporting software to meet the needs of
a particular customer. The SBA has
developed a small business size
standard for this category, which is
annual gross receipts of $25 million or
less. According to data from the 2007
U.S. Census, there were 41,571
establishments engaged in this business
in 2007. Of these, 40,149 had annual
gross receipts of less than $10,000,000.
Another 1,422 establishments had gross
receipts of $10,000,000 or more. Based
on this data, the Commission concludes
factfinder.census.gov. The number of
‘‘establishments’’ is a less helpful indicator of small
business prevalence in this context than would be
the number of ‘‘firms’’ or ‘‘companies,’’ because the
latter take into account the concept of common
ownership or control. Any single physical location
for an entity is an establishment, even though that
location may be owned by a different establishment.
Thus, the numbers given may reflect inflated
numbers of businesses in this category, including
the numbers of small businesses.
81 Id. Eighteen establishments had employment of
1,000 or more.
82 U.S. Census Bureau, 2007 Economic Census,
Industry Series: Manufacturing, ‘‘Semiconductor
and Related Device Manufacturing, ’’ NAICS code
334413.
83 https://factfinder.census.gov/servlet/IBQTable?_
bm=y&-geo_id=&-_skip=300&-ds_name=EC0731I1&
-_lang=en.
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that the majority of the businesses
engaged in this industry are small.
Internet Service Providers. Since
2007, these services have been defined
within the broad economic census
category of Wired Telecommunications
Carriers; that category is defined as
follows: ‘‘This industry comprises
establishments primarily engaged in
operating and/or providing access to
transmission facilities and infrastructure
that they own and/or lease for the
transmission of voice, data, text, sound,
and video using wired
telecommunications networks.
Transmission facilities may be based on
a single technology or a combination of
technologies.’’ 84 The SBA has
developed a small business size
standard for this category, which is: All
such firms having 1,500 or fewer
employees.85 According to Census
Bureau data for 2007, there were 3,188
firms in this category, total, that
operated for the entire year.86 Of this
total, 3,144 firms had employment of
999 or fewer employees, and 44 firms
had employment of 1000 employees or
more.87 Thus, under this size standard,
the majority of firms can be considered
small. In addition, according to Census
Bureau data for 2007, there were a total
of 396 firms in the category Internet
Service Providers (broadband) that
operated for the entire year.88 Of this
total, 394 firms had employment of 999
or fewer employees, and two firms had
employment of 1000 employees or
more.89 Consequently, the Commission
estimates that the majority of these firms
are small entities that may be affected
by rules adopted pursuant to the R&O.
Internet Publishing and Broadcasting
and Web Search Portals. The
Commission’s action may pertain to
interconnected Voice over Internet
Protocol (VoIP) services, which could be
provided by entities that provide other
services such as email, online gaming,
web browsing, video conferencing,
instant messaging, and other, similar IPenabled services. The Commission has
84 U.S. Census Bureau, 2007 NAICS Definitions,
‘‘517110 Wired Telecommunications Carriers’’
(partial definition), available at https://
www.census.gov/cgi-bin/sssd/naics/naicsrch?code=
517110&search=2007%20NAICS%20Search (last
visited Mar. 27, 2013).
85 13 CFR 121.201, NAICS code 517110.
86 U.S. Census Bureau, 2007 Economic Census,
Information: Subject Series—Estab and Firm Size:
Table 5, ‘‘Employment Size of Firms for the United
States: 2007, NAICS Code 517110’’ (issued Nov.
2010).
87 See id.
88 U.S. Census Bureau, 2007 Economic Census,
Information: Subject Series—Estab and Firm Size:
Table 5, ‘‘Employment Size of Firms for the United
States: 2007, NAICS Code 5171103’’ (issued Nov.
2010).
89 See id.
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not adopted a size standard for entities
that create or provide these types of
services or applications. However, the
Census Bureau has identified firms that
‘‘primarily engaged in (1) publishing
and/or broadcasting content on the
Internet exclusively or (2) operating
Web sites that use a search engine to
generate and maintain extensive
databases of Internet addresses and
content in an easily searchable format
(and known as Web search portals).’’ 90
The SBA has developed a small
business size standard for this category,
which is: All such firms having 500 or
fewer employees.91 According to Census
Bureau data for 2007, there were 2,705
firms in this category that operated for
the entire year.92 Of this total, 2,682
firms had employment of 499 or fewer
employees, and 23 firms had
employment of 500 employees or
more.93 Consequently, the Commission
estimates that the majority of these firms
are small entities that may be affected
by rules adopted pursuant to the R&O.
All Other Information Services. The
Census Bureau defines this industry as
including ‘‘establishments primarily
engaged in providing other information
services (except news syndicates,
libraries, archives, Internet publishing
and broadcasting, and Web search
portals).’’ 94 The Commission’s action
pertains to interconnected VoIP
services, which could be provided by
entities that provide other services such
as email, online gaming, web browsing,
video conferencing, instant messaging,
and other, similar IP-enabled services.
The SBA has developed a small
business size standard for this category;
that size standard is $7.0 million or less
in average annual receipts.95 According
to Census Bureau data for 2007, there
were 367 firms in this category that
operated for the entire year.96 Of these,
334 had annual receipts of under $5.0
90 U.S. Census Bureau, ‘‘2007 NAICS Definitions:
519130 Internet Publishing and Broadcasting and
Web Search Portals,’’ available at https://
www.census.gov/cgi-bin/sssd/naics/naicsrch?code=
519130&search=2007%20NAICS%20Search (last
visited Mar. 27, 2013).
91 See 13 CFR 121.201, NAICS code 519130.
92 U.S. Census Bureau, 2007 Economic Census,
Information: Subject Series—Estab and Firm Size:
Table 5, ‘‘Employment Size of Firms for the United
States: 2007, NAICS Code 519130’’ (issued Nov.
2010).
93 Id.
94 U.S. Census Bureau, ‘‘2007 NAICS Definitions:
519190 All Other Information Services’’, available
at https://www.census.gov/cgi-bin/sssd/naics/
naicsrch?code=519190&search=2007%20NAICS
%20Search (last visited Mar. 27, 2013).
95 See 13 CFR 121.201, NAICS code 519190.
96 U.S. Census Bureau, 2007 Economic Census,
Information: Subject Series—Estab and Firm Size:
Table 5, ‘‘Employment Size of Firms for the United
States: 2007, NAICS Code 519190’’ (issued Nov.
2010).
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32177
million, and an additional 11 firms had
receipts of between $5 million and
$9,999,999.97 Consequently, the
Commission estimates that the majority
of these firms are small entities that may
be affected by our action.
All Other Telecommunications. The
Census Bureau defines this industry as
including ‘‘establishments primarily
engaged in providing specialized
telecommunications services, such as
satellite tracking, communications
telemetry, and radar station operation.
This industry also includes
establishments primarily engaged in
providing satellite terminal stations and
associated facilities connected with one
or more terrestrial systems and capable
of transmitting telecommunications to,
and receiving telecommunications from,
satellite systems. Establishments
providing Internet services or Voice
over Internet Protocol (VoIP) services
via client-supplied telecommunications
connections are also included in this
industry.’’ 98 The SBA has developed a
small business size standard for this
category; that size standard is $30.0
million or less in average annual
receipts.99 According to Census Bureau
data for 2007, there were 2,383 firms in
this category that operated for the entire
year.100 Of these, 2,305 establishments
had annual receipts of under $10
million and 84 establishments had
annual receipts of $10 million or
more.101 Consequently, the Commission
estimates that the majority of these firms
are small entities that may be affected
by our action.
D. Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements
In the R&O, the Commission amends
its part 20 rules to require CMRS
providers and certain interconnected
text providers to implement ‘‘bounceback’’ messages when a consumer
attempts to text 911 in an area where
text-to-911 is unavailable. Specifically,
the rules apply to all CMRS providers as
well as all providers of interconnected
text messaging services that enable
97 U.S. Census Bureau, 2007 Economic Census,
Information: Subject Series—Estab and Firm Size:
Table 4, ‘‘Receipts Size of Firms for the United
States: 2007, NAICS Code 519190’’ (issued Nov.
2010).
98 U.S. Census Bureau, ‘‘2007 NAICS Definitions:
517919 All Other Telecommunications,’’ available
at https://www.census.gov/cgi-bin/sssd/naics/
naicsrch?code=517919&search=2007%20
NAICS%20Search (last visited Mar. 27, 2013).
99 See 13 CFR 121.201, NAICS code 517919.
100 U.S. Census Bureau, 2007 Economic Census,
Information: Subject Series—Estab and Firm Size:
Table 4, ‘‘Receipts Size of Firms for the United
States: 2007, NAICS Code 517919’’ (issued Nov.
2010).
101 See id.
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consumers to send text messages to and
receive text messages from all or
substantially all text-capable U.S.
telephone numbers, including through
the use of applications downloaded or
otherwise installed on mobile phones.
The rules also require covered text
providers that are delivering texts to
PSAPs that are supporting text-to-911 to
provide a mechanism for the PSAP to
request temporary suspension of text for
any reason, including but not limited to
network congestion, call-taker overload,
PSAP failure, or security breach. In
those circumstances, the covered text
provider must provide a bounce-back
message to any consumer attempting to
send a text to 911 in the area covered
by the temporary suspension. Covered
text providers must also provide a
mechanism to allow PSAPs to resume
text-to-911 service after such temporary
suspension.
The projected compliance
requirements resulting from the R&O
will apply to all entities in the same
manner. The Commission believes that
applying the same rules equally to all
entities in this context is necessary to
alleviate potential consumer confusion
from adopting different rules for
different providers. As the nation
transitions to full text-to-911, it is
critical that all consumers, including
consumers of services offered by small
entities, be made aware of the
limitations of text-to-911 in their area.
The Commission believes, and the
record in this proceeding confirms, that
the costs and/or administrative burdens
associated with the rules will not
unduly burden small entities.
Compliance costs for the new rule
will be small, requiring only minor
coding and/or server changes. Based on
the record, CMRS providers and
interconnected text providers have
agreed that these changes are
technically and financially feasible,
with small costs to the covered
provider. Additionally, the Commission
provides an example of language that
covered providers may use to satisfy the
bounce-back requirement, further
reducing potential administrative, legal
and technical costs of compliance.
E. Steps Taken To Minimize Significant
Economic Impact on Small Entities, and
Significant Alternatives Considered
The RFA requires an agency to
describe any significant, specifically
small business alternatives that it has
considered in reaching its proposed
approach, which may include the
following four alternatives (among
others): ‘‘(1) the establishment of
differing compliance or reporting
requirements or timetables that take into
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17:39 May 28, 2013
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account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance or reporting requirements
under the rule for small entities; (3) the
use of performance, rather than design,
standards; and (4) an exemption from
coverage of the rule, or any part thereof,
for small entities. ’’102
Based on the Commission’s review of
the record, the Commission finds that it
is practicable for all CMRS providers,
including small providers, to implement
a bounce-back notification without
incurring unduly burdensome costs.
The record also reflects that it would
not be unduly burdensome for covered
text providers to implement bounceback capability.103 The record in this
proceeding indicates that some service
providers, including small or rural
providers,104 as well as covered text
providers,105 already send an automatic
bounce-back message to their
subscribers when a subscriber attempts
to send a text to 911. The R&O
recognizes the technical and operational
issues that must be addressed before
imposing a specific notification
requirement, and allows time for
implementation of a standardized
message.
In considering the record received in
response to the FNPRM, the
Commission examined alternatives to
ease the burden on small and rural
covered text providers. These
alternatives included extending the
implementation deadline, or exempting
small and rural covered text providers.
However, the record in this proceeding
indicates that the technical and
financial costs for implementing
bounce-back messages are small. Many
small carriers have argued that they can
meet the requirements imposed in this
R&O on a faster timeline than the one
established in the rules. For example,
the Competitive Carriers Association
(CCA), which represents many small
and rural CMRS providers, states that,
‘‘. . . based on recent business
developments cultivated by CCA and its
members, most CCA carrier members
will now be able to implement a
bounce-back message by June 30,
2013. ’’106 Nonetheless, in order to
further ease the burden on small and
rural covered providers, the rules the
102 5
U.S.C. 603(c)(1)–(c)(4).
e.g., Letter from Rebecca Murphy
Thompson, General Counsel, to Marlene H. Dortch,
Secretary, Federal Communications Commission, in
PS Docket No. 11–153 and PS Docket No. 10–255,
March 25, 2013 (CCA Ex Parte); Proximiti
Comments at 1.
104 For example, SouthernLINC.
105 For example, textPlus and Heywire.
106 CCA Ex Parte at 1.
103 See,
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Commission adopts in the R&O extend
the deadline proposed in the Further
Notice of Proposed Rulemaking from
June 30, 2013 to September 30, 2013.
Additionally, the rules adopted in the
R&O allow for certain limited
exemptions in cases where it is
technologically infeasible to implement
a bounce-back message (e.g., for certain
handsets that are incapable of doing so).
Further, the R&O contains a detailed
Cost-Benefit Analysis which finds that
the life-saving public safety benefits of
imposing a bounce-back requirement on
covered text providers far outweigh the
costs of such a rule.
Finally, in the event that small
entities face unique circumstances with
respect to these rules, such entities may
request waiver relief from the
Commission. Accordingly, the
Commission finds that it has discharged
its duty to consider the burdens
imposed on small entities.
E. Legal Basis
The legal basis for any action that may
be taken pursuant to this R&O is
contained in Sections 1, 4(i), 301,
303(b), 303(r), 307, 309, 316, 319, 324,
332, 333, 615a, 615a–1, and 615b of the
Communications Act of 1934, as
amended, 47 U.S.C. 151, 154(i), 301,
303(b), 303(r), 307, 309, 316, 319, 324,
332, 333, 615a, 615a–1, 615b, and 47
U.S.C. 615c.
F. Federal Rules That May Duplicate,
Overlap, or Conflict With the Proposed
Rule
None.
List of Subjects in 47 CFR Part 20
Communications common carriers,
Communications equipment, Radio.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Final Rules
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR part 20 as
follows:
PART 20—COMMERCIAL MOBILE
SERVICES
1. The authority citation for part 20 is
revised to read as follows:
■
Authority: 47 U.S.C. Sections 151, 154,
160, 201, 251–254, 301, 303, 303(b), 303(r),
307, 309, 316, 319, 324, 332, 333, 615a, 615a–
1, 615b, and 615c unless otherwise noted.
Section 20.12 is also issued under 47 U.S.C.
1302.
2. Section 20.18 is amended by adding
paragraph (n) to read as follows:
■
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§ 20.18
911 Service.
tkelley on DSK3SPTVN1PROD with RULES
*
*
*
*
*
(n) Text-to-911 Requirements. (1)
Covered Text Provider: Notwithstanding
any other provisions in this section, for
purposes of this paragraph (n) of this
section, a ‘‘covered text provider’’
includes all CMRS providers as well as
all providers of interconnected text
messaging services that enable
consumers to send text messages to and
receive text messages from all or
substantially all text-capable U.S.
telephone numbers, including through
the use of applications downloaded or
otherwise installed on mobile phones.
(2) Automatic Bounce-back Message:
an automatic text message delivered to
a consumer by a covered text provider
in response to the consumer’s attempt to
send a text message to 911 when the
consumer is located in an area where
text-to-911 service is unavailable or the
covered text provider does not support
text-to-911 service generally or in the
area where the consumer is located at
the time.
(3) No later than September 30, 2013,
all covered text providers shall provide
an automatic bounce-back message
under the following circumstances:
(i) A consumer attempts to send a text
message to a Public Safety Answering
Point (PSAP) by means of the three-digit
short code ‘‘911’’; and
(ii) The covered text provider cannot
deliver the text because the consumer is
located in an area where:
(A) Text-to-911 service is unavailable;
or
(B) The covered text provider does not
support text-to-911 service at the time.
(4)(i) A covered text provider is not
required to provide an automatic
bounce-back message when:
(A) Transmission of the text message
is not controlled by the provider;
(B) A consumer is attempting to text
911, through a text messaging
application that requires CMRS service,
from a non-service initialized handset;
(C) When the text-to-911 message
cannot be delivered to a PSAP due to
failure in the PSAP network that has not
been reported to the provider; or
(D) A consumer is attempting to text
911 through a device that is incapable
of sending texts via three digit short
codes, provided the software for the
device cannot be upgraded over the air
to allow text-to-911.
(ii) The provider of a preinstalled or
downloadable interconnected text
application is considered to have
‘‘control’’ over transmission of text
messages for purposes of paragraph
(n)(4)(i)(A) of this section. However, if a
user or a third party modifies or
manipulates the application after it is
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installed or downloaded so that it no
longer supports bounce-back messaging,
the application provider will be
presumed not to have control.
(5) The automatic bounce-back
message shall, at a minimum, inform the
consumer that text-to-911 service is not
available and advise the consumer or
texting program user to use another
means to contact emergency services.
(6) Covered text providers that
support text-to-911 must provide a
mechanism to allow PSAPs that accept
text-to-911 to request temporary
suspension of text-to-911 service for any
reason, including, but not limited to,
network congestion, call taker overload,
PSAP failure, or security breach, and to
request resumption of text-to-911
service after such temporary
suspension. During any period of
suspension of text-to-911 service, the
covered text provider must provide an
automatic bounce-back message to any
consumer attempting to text to 911 in
the area subject to the temporary
suspension.
(7) A CMRS provider subject to
§ 20.12 shall provide an automatic
bounce-back message to any consumer
roaming on its network who sends a text
message to 911 when
(i) The consumer is located in an area
where text-to-911 service is unavailable,
or
(ii) The CMRS provider does not
support text-to-911 service at the time.
(8) A software application provider
that transmits text messages directly
into the SMS network of the consumer’s
underlying CMRS provider satisfies the
obligations of paragraph (n)(3) of this
section provided it does not prevent or
inhibit delivery of the CMRS provider’s
automatic bounce-back message to the
consumer.
[FR Doc. 2013–12748 Filed 5–28–13; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 622
[Docket No. 130212129–3474–02]
RIN 0648–BC98
Fisheries of the Caribbean, Gulf of
Mexico, and South Atlantic; Reef Fish
Fishery of the Gulf of Mexico; Red
Snapper Management Measures
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
AGENCY:
PO 00000
Frm 00113
Fmt 4700
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ACTION:
32179
Final rule.
NMFS issues this final rule to
implement management measures
described in a framework action to the
Fishery Management Plan for the Reef
Fish Resources of the Gulf of Mexico
(FMP) prepared by the Gulf of Mexico
Fishery Management Council (Council).
This rule revises the commercial and
recreational quotas for red snapper in
the Gulf of Mexico (Gulf) reef fish
fishery for the 2013 fishing year and
announces the quota closure dates in
the exclusive economic zone (EEZ) off
each Gulf state for the 2013 red snapper
recreational fishing season. This final
rule is intended to help achieve
optimum yield for the Gulf red snapper
resource without increasing the risk of
red snapper experiencing overfishing.
DATES: This rule is effective May 29,
2013.
ADDRESSES: Electronic copies of the
framework action, which includes an
environmental assessment and a
regulatory impact review, may be
obtained from the Southeast Regional
Office Web site at https://
sero.nmfs.noaa.gov/sf/
GrouperSnapperandReefFish.htm.
FOR FURTHER INFORMATION CONTACT:
Cynthia Meyer, Southeast Regional
Office, NMFS, telephone 727–824–5305;
email: Cynthia.Meyer@noaa.gov.
SUPPLEMENTARY INFORMATION: NMFS and
the Council manage the Gulf reef fish
fishery under the FMP. The Council
prepared the FMP and NMFS
implements the FMP through
regulations at 50 CFR part 622 under the
authority of the Magnuson-Stevens
Fishery Conservation and Management
Act (Magnuson-Stevens Act).
On April 4, 2013, NMFS published a
proposed rule for the framework action
and requested public comment (78 FR
20292). The proposed rule and the
framework action outline the rationale
for the actions contained in this final
rule. A summary of the actions
implemented by this final rule is
provided below.
Through this final rule, NMFS sets the
2013 commercial quota at 4.315 million
lb (1.957 million kg), round weight, and
the 2013 recreational quota at 4.145
million lb (1.880 million kg), round
weight. NMFS also sets the 2013 red
snapper recreational fishing season for
Gulf Federal waters through this final
rule.
Under 50 CFR 622.34(b), the red
snapper recreational fishing season
opens each year on June 1 and closes
when the recreational quota is projected
to be reached. The bag limit for red
snapper in Gulf exclusive economic
SUMMARY:
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]]>Agencies
[Federal Register Volume 78, Number 103 (Wednesday, May 29, 2013)]
[Rules and Regulations]
[Pages 32169-32179]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-12748]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 20
[PS Docket No. 10-255 and PS Docket No. 11-153; FCC 13-64]
RIN 3060-AJ60
Facilitating the Deployment of Text-to-911 and Other Next
Generation 911 Applications
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Commission requires all commercial
mobile radio service (CMRS) providers and providers of interconnected
text messaging services (i.e., all providers of software applications
that enable a consumer to send text messages to all or substantially
all text-capable U.S. telephone numbers and receive text messages from
the same) to provide an automatic ``bounce-back'' text message where a
consumer attempts to send a text message to 911 in a location where
text-to-911 is not available. The rules are adopted with the goal of
reducing the risk of individuals sending text messages to 911 during an
emergency and mistakenly believing that 911 authorities had received
it, particularly during the transition to Next Generation 911 (NG911),
when text-to-911 will be available in some areas sooner than others and
may be supported by certain service providers but not by others.
DATES: This rule is effective June 28, 2013.
FOR FURTHER INFORMATION CONTACT: Timothy May, Federal Communications
Commission, Public Safety and Homeland Security Bureau, 445 12th Street
SW., Room 7-A727, Washington, DC 20554. Telephone: (202) 418-1463,
email: timothy.may@fcc.gov.
SUPPLEMENTARY INFORMATION: In this Report & Order (R&O), FCC 13-64,
adopted May 8, 2013, and released May 17, 2013, the Commission requires
all CMRS providers and providers of interconnected text messaging
services (i.e., all providers of software applications that enable a
consumer to send text messages to all or substantially all text-capable
U.S. telephone numbers and receive text messages from the same)
(collectively, ``covered text providers'') to provide an automatic
``bounce-back'' text message in situations where a consumer attempts to
send a text message to 911 in a location where text-to-911 is not
available. The rules the Commission adopts will substantially reduce
the risk of a person sending a text message to 911 in an emergency and
mistakenly believing that 911 authorities have received it. Instead,
the text sender will receive an immediate response that text-to-911 is
not supported along with direction to use another means to contact
emergency services, e.g., place a voice call to 911.
Requiring all covered text providers to implement a bounce-back
mechanism is particularly important because while deployment of text-
to-911 has begun, the transition is still in the very early stages and
will not be uniform. During the transition, text-to-911 will be
available in certain geographic areas sooner than it is available in
others and may be supported by certain service providers but not by
others. At the same time, as text-to-911 becomes more widely available,
it is likely to generate increased consumer expectations as to its
availability, which makes it increasingly important for consumers to be
made aware when it is not available in an emergency.
The Commission finds that it is technically feasible for all
covered text providers to provide automatic bounce-
[[Page 32170]]
back messages. The record in this proceeding indicates that some
service providers already send an automatic bounce-back message to
their subscribers when a subscriber attempts to send a text to 911. In
addition, the four largest CMRS providers--AT&T, Sprint Nextel, T-
Mobile, and Verizon--have voluntarily committed to provide bounce-back
messaging capability throughout their networks by June 30, 2013. While
the Commission finds that it is technically and economically feasible
for all covered text providers to implement this capability quickly,
the Commission recognizes that not all providers may be able to do so
by the June 30, 2013 date to which the four major carriers are
committed. Therefore, the Commission establishes September 30, 2013 as
the deadline for all covered text providers to implement the bounce-
back capability required by this R&O. However, the Commission
encourages covered text providers to implement bounce-back message
capabilities as soon as possible in order to deal expeditiously with
the existing consumer confusion about the availability of text-to-911.
Although this new requirement will impose additional costs on some of
the covered text providers, the Commission has determined that these
costs are small and likely will be far exceeded by the public benefits
of substantially reducing the risk of persons sending a text message to
911 in an emergency and mistakenly believing that 911 authorities have
received it.
In addition to all CMRS providers, the Commission extends the
bounce-back requirements adopted in the R&O to all interconnected text
messaging providers. The Commission defines interconnected text
providers as those providers that enable a consumer to send text
messages to all or substantially all text-capable U.S. telephone
numbers and receive text messages from the same. Such providers of
interconnected text messaging service include providers that enable the
transmission of covered messages over their own networks or facilities
(e.g., CMRS licensees), as well as third-party or over-the-top (OTT)
providers that enable the transmission of covered texts over another
providers' network or facilities, including through the use of
applications downloaded on mobile phones. For interconnected text
applications on the market prior to the adoption of the R&O,
interconnected text providers must make an update available by the
September 30, 2013 implementation date. For future applications not on
the market as of the date of the adoption of this R&O, interconnected
text providers must incorporate a bounce-back message capability into
their initial programming.
The Commission affirms that it is extending this provision only to
interconnected text message applications as defined in the R&O, and not
to non-interconnected IP-based messaging applications that support
communication with a defined set of users of compatible applications
but that do not support general communication with text-capable
telephone numbers. Additionally, the Commission clarifies that the
rules adopted in the R&O do not apply to voice-only service providers.
For clarity, the Commission states that the service must be capable
of reaching ``all or substantially all'' text-capable U.S. telephone
numbers and removing the reference to mobile numbers, since the North
American Numbering Plan does not make distinctions between numbers in
the plan. The Commission also affirms that the definition of
interconnected text does not extend to text messages that are directed
by IP-based messaging applications that support communication with a
defined set of users of compatible applications but that do not support
general communication with all or substantially all text-capable
telephone numbers.
The Commission adopts its proposal with certain modifications to
address concerns raised by commenters to the FNPRM.\1\ In general, the
R&O requires all covered text providers (i.e., both CMRS providers and
interconnected text providers) to provide a bounce-back message when a
consumer attempts to send a text message to a PSAP by means of the
three-digit short code ``911'' and the covered text provider cannot
deliver the text because (1) the consumer is located in an area where
text-to-911 is not available, or (2) the covered text provider either
does not support text-to-911 generally or does not support it in the
particular area at the time of the consumer's attempted text.
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\1\ In the Matter of Facilitating the Deployment of Text-to-911
and Other Next Generation 911 Applications Framework for Next
Generation 911 Deployment, PS Docket No. 11-153, PS Docket No. 10-
255, Further Notice of Proposed Rulemaking, 27 FCC Rcd 15659, 78 FR
1799 (2012) (FNPRM).
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The first scenario addresses the situation where the PSAP serving
the consumer's geographic area has not yet implemented text-to-911
capability. The Commission includes the second scenario to address
instances where a covered text provider does not support text-to-911,
even in areas where the PSAP has implemented text-to-911 capability.
This is necessary because implementation of text-to-911 by covered text
providers will not be uniform across the nation or within any given
area. For example, most of the text-to-911 trials and deployments to
date have involved PSAPs only receiving texts from a single carrier. In
those situations, consumers of other carriers that are not yet
supporting the PSAP's trial or deployment will be unable to send text
messages to 911 for some period of time. Therefore, the Commission
requires these carriers to provide a bounce-back message to consumers--
even though the PSAP is making text-to-911 ``available'' in the area.
The Commission also notes that the rule it adopts today requires
all covered text providers to implement bounce-back capability even
though some providers contend that they cannot and should not be
required to support text-to-911. The Commission has not yet decided the
issue of whether all covered text providers should be required to
support text-to-911 as proposed in the FNPRM. That issue remains
pending in this proceeding, and the Commission does not prejudge it
here. However, regardless of whether all covered text providers are
eventually required to support text-to-911, the fact that they provide
the ability to text to telephone numbers generally is likely to lead
some consumers to assume that they also have text-to-911 capability.
This could further lead consumers to put themselves at risk by
attempting to send emergency text messages over such applications. The
Commission therefore concludes that to prevent consumer confusion and
protect life and safety in such situations, the bounce-back requirement
should apply to all covered text providers that do not support text-to-
911 services.
As proposed in the FNPRM, the Commission requires covered text
providers to provide bounce-back messages only in those cases where the
provider (or the provider's text-to-911 vendor) has direct control over
the transmission of the text message.\2\ The Commission does not
require that a bounce-back be provided in every instance where a
confirmation of delivery is not received by the text provider, because
this may include circumstances outside the text
[[Page 32171]]
provider's control. However, the Commission agrees that a bounce-back
message should be provided when the text provider cannot determine the
PSAP to which the text should be routed.
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\2\ In the case of a preinstalled or downloadable interconnected
text application, the Commission defines the application provider as
having ``control'' for purposes of the bounce-back requirement.
However, if the user or a third party modifies or manipulates the
application after it is installed or downloaded so that it no longer
supports bounce-back, the provider will be presumed not to have
control.
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The Commission further clarifies that the obligation of an
interconnected text provider with respect to providing an automatic
bounce-back message may differ depending on whether the application
uses an IP-based network or a CMRS provider's underlying SMS network to
deliver text messages to text-capable telephone numbers. Some
interconnected text applications use IP-based transmissions to route
text messages to a server, which then converts the message to SMS if
necessary for delivery to the destination number.\3\ In such cases, the
interconnected text service provider is responsible for delivering an
application-based automatic bounce-back message to consumers if and
when text-to-911 is unavailable. Other interconnected text applications
are configured to transmit text messages in SMS format directly over
the SMS network of the consumer's underlying CMRS provider, which will
result in the application user receiving a bounce-back message from the
CMRS provider when text-to-911 is not available.\4\ In these cases,
where the text message defaults to the underlying CMRS provider's
network, the interconnected text provider satisfies its consumer
notification obligation so long as it does not prevent or inhibit the
CMRS provider's automatic bounce-back message from being delivered to
the application user.
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\3\ For example, TextMe (go-text.me/) and Heywire
(www.heywire.com).
\4\ For example, Apple Messages (www.apple.com/ios/messages/).
---------------------------------------------------------------------------
The Commission also requires covered text providers that are
delivering texts to PSAPs that are supporting text-to-911 to provide a
mechanism for the PSAP to request temporary suspension of text for any
reason, including but not limited to network congestion, call-taker
overload, PSAP failure, or security breach.\5\ In those circumstances,
the covered text provider must provide a bounce-back message to any
consumer attempting to send a text to 911 in the area covered by the
temporary suspension. Covered text providers must also provide a
mechanism to allow PSAPs to resume text-to-911 service after such
temporary suspension. The Commission encourages carriers,
interconnected text messaging providers and PSAPs to establish standard
protocols and interfaces for triggering these mechanisms. The
Commission also emphasizes that the bounce-back requirement will only
apply where the PSAP requests the temporary shutdown using a
notification mechanism established by the provider or the provider's
vendor for this purpose. The Commission encourages PSAPs and covered
text providers to work together when establishing temporary shutdown
mechanisms, so that both PSAPs and providers are clearly apprised of
their respective roles and have established procedures in place for
establishing such temporary shutdowns.
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\5\ See, e.g., FNPRM, 27 FCC Rcd at 15670 para., 32 & n.70
(proposing and seeking comment on whether an automatic bounce-back
notification should be provided when, inter alia, a PSAP is unable
to accept texts to 911, including circumstances where the PSAP may
not be able to handle all incoming text messages, and discussing the
temporary blocking of messages and sending of return bounce-back
messages).
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For the reasons of public safety and public awareness cited above,
the Commission does not find it appropriate to adopt any form of
blanket exemption of the September 30, 2013 requirement for CMRS
providers and interconnected text messaging providers that believe they
will not be able to meet the deadline. Any covered providers who are
unable to implement the bounce-back requirement by September 30, 2013
should file a request for waiver. Waivers or exemptions from these
requirements are best suited to a case-by-case analysis under the
waiver standard, where the facts and circumstances of each individual
case can be determined on its own merits.\6\ Notwithstanding the
availability of the waiver process, we emphasize the important public
safety purpose of this requirement and our expectation that providers
will implement bounce-back messaging by the deadline.
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\6\ The Commission may, on its own motion, waive its rules for
good cause shown. 47 CFR 1.3. See also Northeast Cellular Telephone
Co., L.P. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990) (``FCC has
authority to waive its rules if there is `good cause' to do so.'').
The Commission may also exercise its discretion to waive a rule
where particular facts would make strict compliance inconsistent
with the public interest, and grant of a waiver would not undermine
the policy served by the rule. See WAIT Radio v. FCC, 418 F.2d 1153,
1159 (D.C. Cir. 1969), aff'd, 459 F.2d 1203 (D.C. Cir. 1972), cert.
denied, 409 U.S. 1027 (1972).
---------------------------------------------------------------------------
The Commission requires all covered text providers to provide an
automatic bounce-back message that includes, at a minimum, two
essential points of information: (1) That text-to-911 is not available;
and (2) that the consumer should try to contact 911 using another
means. As an example, a sufficient bounce-back message that satisfies
these criteria could say: There is no text-to-911 service available.
Make a voice call to 911 or use another means to contact emergency
services. The Commission declines to require covered text providers to
use specific wording.\7\ The Commission believes its approach affords
covered text providers with the necessary guidance and flexibility to
create bounce-back messages that are understood by their particular
consumer base. In addition, the approach enables covered text providers
to continue to use the messages they presently have in operation, to
the extent that they conform to these criteria.\8\ This approach also
provides sufficient uniformity in automatic bounce-back messages to
allow for consistent training and public education materials.
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\7\ The Commission notes that its action does not preclude the
voluntary adoption of a common automatic bounce-back message by
covered text providers, developed by industry in coordination with
public safety, consumer groups, disability rights advocates, and
other interested parties. The Commission encourages close and
continued coordination among all relevant parties to ensure the
successful implementation of the automatic bounce-back message
requirement.
\8\ Examples of current bounce-back messages that would satisfy
our criteria include those offered by Heywire (``Heywire does not
support Enhanced 911. If you are in need of emergency services,
please dial 911 on your landline or mobile phone'') and Verizon
(``Please make a voice call to 911. There is no text service to 911
available at this time'').
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Additionally, the Commission requires all CMRS providers to provide
an automatic bounce-back message when a consumer roaming on a network
initiates a text-to-911 in an area where text-to-911 service is not
available. Consumers roaming on other carriers' networks have an
expectation that they can access 911 services in an emergency. Given
the important safety of life implications, carriers should make
automatic bounce-back messages available to consumers roaming on their
network to the same extent they provide such messages to their own
subscribers.
The Commission recognizes that certain legacy devices are not
capable of sending text messages to a three-digit short code. For those
devices that are not capable of generating messages to 911 and whose
text messaging software cannot be upgraded over the air (e.g., through
a push software upgrade), the CMRS provider will never receive a
message and thus cannot generate a bounce-back message.\9\ The
Commission clarifies that legacy devices that are incapable of sending
texts via three digit short codes are not subject to the bounce-back
message requirement,
[[Page 32172]]
provided the software for these devices cannot be upgraded over the air
to allow text-to-911. In such cases, the messaging application or
interface on the mobile device will likely provide an error message
indicating an invalid destination number, reducing user confusion
somewhat even if the message is less specific than the bounce-back
message. If the text messaging software can be upgraded, however, the
Commission treats such devices in the same manner as the software
offered by interconnected text providers.
---------------------------------------------------------------------------
\9\ See Motorola Mobility Comments at 2-3 (arguing that the
proposed bounce-back message requirement would not help customers
who may be located in an area where text-to-911 is supported but who
are using a device that is not technically capable of sending a
three digit short code).
---------------------------------------------------------------------------
The Commission clarifies that CMRS providers are not required to
provide an automatic bounce-back message when a consumer attempts to
text 911 on a non-service initialized phone. Deliberations of the EAAC
have affirmed that the text capability of non-service initialized
handsets is neither technically nor economically feasible.\10\ At the
same time, the Commission notes that some providers may provide text
messaging solutions that allow users to send text messages even on NSI
phones (e.g., Wi-Fi-enabled text applications). The Commission
clarifies that those text providers must still provide bounce-back
messaging consistent with the rules we adopt today.
---------------------------------------------------------------------------
\10\ See, e.g., Report of Emergency Access Advisory Committee
(EAAC) Subcommittee 1 on Interim Text Messaging to 9-1-1, March 1,
2013 at 9.
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Finally, the Commission declines to require covered text providers
to provide consumers with text-to-911 testing capability at this time.
Until operational experience indicates otherwise, the Commission
believes that consumer education efforts should discourage the sending
of texts to 911 except in actual emergencies.
The Commission has already committed the Public Safety and Homeland
Security Bureau (PSHSB) and the Consumer and the Consumer and
Governmental Affairs Bureau (CGB) to implement a comprehensive consumer
education program concerning text-to-911, and to coordinate their
efforts with state and local 911 authorities, other federal and state
agencies, public safety organizations, industry, disability
organizations, and consumer groups. The Commission directs PSHSB and
CGB to put in place a consumer information Web site that provides the
public with information and instructions on how and when to use text-
to-911 no later than June 30, 2013.
The R&O is available at https://www.fcc.gov/document/text-911-bounce-back-message-order.
Procedural Matters
Paperwork Reduction Act
The R&O does not contain new information collection requirements
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law No.
104-13. Therefore, it does not contain any new or modified information
collection burden for small business concerns with fewer than 25
employees, pursuant to the Small Business Paperwork Relief Act of 2002,
Public Law 107-198.
Congressional Review Act
The Commission will send a copy of this Report & Order to Congress
and the Government Accountability Office pursuant to the Congressional
Review Act, see 5 U.S.C. 801(a)(1)(A).
Final Regulatory Flexibility Analysis
As required by the Regulatory Flexibility Act (RFA),\11\ the
Commission has prepared this present Final Regulatory Flexibility
Analysis (FRFA) of the possible significant economic impact on small
entities by the policies and rules proposed in this R&O. The Commission
will send a copy of this R&O, including this FRFA, to the Chief Counsel
for Advocacy of the Small Business Administration (SBA).\12\ In
addition, the R&O and FRFA (or summaries thereof) will be published in
the Federal Register.\13\
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\11\ See 5 U.S.C. 603. The RFA, see 5 U.S.C.. 601 et. seq., has
been amended by the Contract With America Advancement Act of 1996,
Public Law 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the
CWAAA is the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA).
\12\ See 5 U.S.C. 603(a).
\13\ See id.
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A. Need for, and Objectives of, the Proposed Rules
In this Report & Order (R&O), the Commission requires all CMRS
providers and providers of interconnected text messaging services
(i.e., all providers of software applications that enable a consumer to
send text messages to all or substantially all text-capable U.S.
telephone numbers and receive text messages from the same) to provide
an automatic ``bounce-back'' text message in situations where a
consumer attempts to send a text message to 911 in a location where
text-to-911 is not available. The rules the Commission adopts in R&O
will substantially reduce the risk of a person sending a text message
to 911 in an emergency and mistakenly believing that 911 authorities
have received it. Instead, the text sender will receive an immediate
response that text-to-911 is not supported along with direction to use
another means to contact emergency services.
Requiring all CMRS providers and interconnected text providers to
implement a bounce-back mechanism is particularly important because
while deployment of text-to-911 has begun, the transition is still in
the very early stages and will not be uniform. During the transition,
text-to-911 will be available in certain geographic areas sooner than
it is available in others and may be supported by certain service
providers but not by others. At the same time, as text-to-911 becomes
more widely available, it is likely to generate increased consumer
expectations as to its availability, which makes it increasingly
important for consumers to be made aware when it is not available in an
emergency.
The record in this proceeding indicates that some service providers
already send an automatic bounce-back message to their subscribers when
a subscriber attempts to send a text to 911. In addition, the four
largest CMRS providers--AT&T, Sprint Nextel, T-Mobile, and Verizon--
have voluntarily committed to provide bounce-back messaging capability
throughout their networks by June 30, 2013. In this R&O, the Commission
builds on this voluntary commitment and concludes that all CMRS
providers and interconnected text providers (collectively, ``covered
text providers'') should be required to provide this capability. The
Commission further specifies the circumstances under which a bounce-
back message must be provided and the information that the message must
contain. Finally, while the Commission finds it is technically and
economically feasible for all covered text providers to implement this
capability quickly, the Commission recognizes that not all providers
may be able to do so by the June 30, 2013 date to which the four major
carriers are committed. Therefore, the Commission establishes September
30, 2013 as the deadline for all covered text providers to implement
the bounce-back capability required by this R&O. However, the
Commission encourages covered text providers to implement bounce-back
message capabilities as soon as possible in order to deal expeditiously
with the existing consumer confusion about the availability of text-to-
911. Although this new requirement will impose additional costs on some
of the covered text providers, the Commission has determined that these
costs likely will be far exceeded by the public benefits of
substantially reducing the risk of persons sending a text message to
911
[[Page 32173]]
in an emergency and mistakenly believing that 911 authorities have
received it.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
No commenter raised issues in response to the bounce-back portion
of the IRFA included in the FNPRM. The Commission concludes that the
proposed mandates here provide covered text providers and Public Safety
Answering Points (PSAPs) with a sufficient measure of flexibility to
account for technical and cost-related concerns. In the event that
small entities face unique circumstances that restrict their ability to
comply with the Commission's rules, the Commission can address them
through the waiver process. The Commission has determined that
implementing bounce-back messages is technically feasible and the cost
of implementation is small.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
The RFA directs agencies to provide a description of, and, where
feasible, an estimate of the number of small entities that may be
affected by the rules adopted, herein.\14\ The RFA generally defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small governmental
jurisdiction.'' \15\ In addition, the term ``small business'' has the
same meaning as the term ``small business concern'' under the Small
Business Act.\16\ A ``small business concern'' is one which: (1) Is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the
SBA.\17\ Below, the Commission describes and estimates the number of
small entity licensees that may be affected by the adopted rules of
this R&O.
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\14\ 5 U.S.C. 603(b)(3).
\15\ 5 U.S.C. 601(6).
\16\ 5 U.S.C. 601(3) (incorporating by reference the definition
of ``small-business concern'' in the Small Business Act, 15 U.S.C.
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a
small business applies ``unless an agency, after consultation with
the Office of Advocacy of the Small Business Administration and
after opportunity for public comment, establishes one or more
definitions of such term which are appropriate to the activities of
the agency and publishes such definition(s) in the Federal
Register.''
\17\ 15 U.S.C. 632.
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Small Businesses, Small Organizations, and Small Governmental
Jurisdictions. As of 2009, small businesses represented 99.9% of the
27.5 million businesses in the United States, according to the SBA.\18\
Additionally, a ``small organization'' is generally ``any not-for-
profit enterprise which is independently owned and operated and is not
dominant in its field.'' \19\ Nationwide, as of 2007, there were
approximately 1,621,315 small organizations.\20\ Finally, the term
``small governmental jurisdiction'' is defined generally as
``governments of cities, counties, towns, townships, villages, school
districts, or special districts, with a population of less than fifty
thousand.''\21\ Census Bureau data for 2007 indicate that there were
89,527 governmental jurisdictions in the United States.\22\ The
Commission estimates that, of this total, as many as 88,761 entities
may qualify as ``small governmental jurisdictions.''\23\ Thus, the
Commission estimates that most governmental jurisdictions are small.
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\18\ See SBA, Office of Advocacy, ``Frequently Asked
Questions,'' available at https://web.sba.gov/faqs/faqindex.cfm?areaID=24 (last visited Dec. 11, 2012).
\19\ 5 U.S.C. 601(4).
\20\ INDEPENDENT SECTOR, THE NEW NONPROFIT ALMANAC & DESK
REFERENCE (2010).
\21\ 5 U.S.C. 601(5).
\22\ U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED
STATES: 2011, Table 427 (2007).
\23\ The 2007 U.S. Census data for small governmental
organizations are not presented based on the size of the population
in each such organization. There were 89,476 local governmental
organizations in 2007. If we assume that county, municipal,
township, and school district organizations are more likely than
larger governmental organizations to have populations of 50,000 or
less, the total of these organizations is 52,095. If we make the
same population assumption about special districts, specifically
that they are likely to have a population of 50,000 or less, and
also assume that special districts are different from county,
municipal, township, and school districts, in 2007 there were 37,381
such special districts. Therefore, there are a total of 89,476 local
government organizations. As a basis of estimating how many of these
89,476 local government organizations were small, in 2011, we note
that there were a total of 715 cities and towns (incorporated places
and minor civil divisions) with populations over 50,000. CITY AND
TOWNS TOTALS: VINTAGE 2011--U.S. Census Bureau, available at https://www.census.gov/popest/data/cities/totals/2011/. If we
subtract the 715 cities and towns that meet or exceed the 50,000
population threshold, we conclude that approximately 88,761 are
small. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES
2011, Tables 427, 426 (Data cited therein are from 2007).
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1. Wireless Telecommunications Service Providers
Below, for those services subject to auctions, the Commission notes
that, as a general matter, the number of winning bidders that qualify
as small businesses at the close of an auction does not necessarily
represent the number of small businesses currently in service. Also,
the Commission does not generally track subsequent business size
unless, in the context of assignments or transfers, unjust enrichment
issues are implicated.
Wireless Telecommunications Carriers (except satellite). This
industry comprises establishments engaged in operating and maintaining
switching and transmission facilities to provide communications via the
airwaves. Establishments in this industry have spectrum licenses and
provide services using that spectrum, such as cellular phone services,
paging services, wireless Internet access, and wireless video
services.\24\ The appropriate size standard under SBA rules is for the
category Wired Telecommunications Carriers. Under that size standard,
such a business is small if it has 1,500 or fewer employees.\25\ Census
Bureau data for 2007, which now supersede data from the 2002 Census,
show that there were 3,188 firms in this category that operated for the
entire year. Of this total, 3,144 had employment of 999 or fewer, and
44 firms had employment of 1,000 employees or more. Thus under this
category and the associated small business size standard, the
Commission estimates that the majority of wireless telecommunications
carriers (except satellite) are small entities that may be affected by
our actions.\26\
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\24\ https://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517210&search=2007%20NAICS%20Search.
\25\ 13 CFR 121.201, NAICS code 517110.
\26\ See https://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_lang=en.
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Incumbent Local Exchange Carriers (Incumbent LECs). Neither the
Commission nor the SBA has developed a size standard for small
businesses specifically applicable to incumbent local exchange
services. The closest applicable size standard under SBA rules is for
Wired Telecommunications Carriers. Under that size standard, such a
business is small if it has 1,500 or fewer employees.\27\ According to
Commission data, 1,307 carriers reported that they were incumbent local
exchange service providers.\28\ Of these 1,307 carriers, an estimated
1,006 have 1,500 or fewer employees and 301 have more than 1,500
employees.\29\ Consequently, the Commission estimates that most
providers of incumbent local exchange service are
[[Page 32174]]
small businesses that may be affected by rules adopted pursuant to the
NPRM.
---------------------------------------------------------------------------
\27\ See 13 CFR 121.201, NAICS code 517110.
\28\ See Federal Communications Commission, Trends in Telephone
Service (Sep. 2010) at Table 5.3, available at https://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-301823A1.pdf (last
accessed Apr. 25, 2013).
\29\ See id.
---------------------------------------------------------------------------
The Commission has included small incumbent LECs in this present
RFA analysis. As noted above, a ``small business'' under the RFA is one
that, inter alia, meets the pertinent small business size standard
(e.g., a telephone communications business having 1,500 or fewer
employees), and ``is not dominant in its field of operation.'' \30\ The
SBA's Office of Advocacy contends that, for RFA purposes, small
incumbent LECs are not dominant in their field of operation because any
such dominance is not ``national'' in scope.\31\ The Commission has
therefore included small incumbent LECs in this RFA analysis, although
it emphasizes that this RFA action has no effect on Commission analyses
and determinations in other, non-RFA contexts.
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\30\ 5 U.S.C. 601(3).
\31\ See Letter from Jere W. Glover, Chief Counsel for Advocacy,
SBA, to William E. Kennard, Chairman, FCC (May 27, 1999). The Small
Business Act contains a definition of ``small business concern,''
which the RFA incorporates into its own definition of ``small
business.'' See 15 U.S.C. 632(a); see also 5 U.S.C. 601(3). SBA
regulations interpret ``small business concern'' to include the
concept of dominance on a national basis. See 13 CFR 121.102(b).
---------------------------------------------------------------------------
Competitive Local Exchange Carriers (Competitive LECs), Competitive
Access Providers (CAPs), Shared-Tenant Service Providers, and Other
Local Service Providers. Neither the Commission nor the SBA has
developed a small business size standard specifically for these service
providers. The appropriate size standard under SBA rules is for the
category Wired Telecommunications Carriers. Under that size standard,
such a business is small if it has 1,500 or fewer employees.\32\
According to Commission data, 1,442 carriers reported that they were
engaged in the provision of either competitive local exchange services
or competitive access provider services.\33\ Of these 1,442 carriers,
an estimated 1,256 have 1,500 or fewer employees and 186 have more than
1,500 employees.\34\ In addition, 17 carriers have reported that they
are Shared-Tenant Service Providers, and all 17 are estimated to have
1,500 or fewer employees.\35\ In addition, 72 carriers have reported
that they are Other Local Service Providers.\36\ Of the 72, seventy
have 1,500 or fewer employees and two have more than 1,500
employees.\37\ Consequently, the Commission estimates that most
providers of competitive local exchange service, competitive access
providers, Shared-Tenant Service Providers, and Other Local Service
Providers are small entities that may be affected by rules adopted
pursuant to the NPRM.
---------------------------------------------------------------------------
\32\ See 13 CFR 121.201, NAICS code 517110.
\33\ See Trends in Telephone Service at Table 5.3.
\34\ See id.
\35\ See id.
\36\ See id.
\37\ See id.
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Broadband Personal Communications Service. The broadband personal
communications services (PCS) spectrum is divided into six frequency
blocks designated A through F, and the Commission has held auctions for
each block. The Commission initially defined a ``small business'' for
C- and F-Block licenses as an entity that has average gross revenues of
$40 million or less in the three previous calendar years.\38\ For F-
Block licenses, an additional small business size standard for ``very
small business'' was added and is defined as an entity that, together
with its affiliates, has average gross revenues of not more than $15
million for the preceding three calendar years.\39\ These small
business size standards, in the context of broadband PCS auctions, have
been approved by the SBA.\40\ No small businesses within the SBA-
approved small business size standards bid successfully for licenses in
Blocks A and B. There were 90 winning bidders that claimed small
business status in the first two C-Block auctions. A total of 93
bidders that claimed small business status won approximately 40 percent
of the 1,479 licenses in the first auction for the D, E, and F
Blocks.\41\ On April 15, 1999, the Commission completed the reauction
of 347 C-, D-, E-, and F-Block licenses in Auction No. 22.\42\ Of the
57 winning bidders in that auction, 48 claimed small business status
and won 277 licenses.
---------------------------------------------------------------------------
\38\ See Amendment of Parts 20 and 24 of the Commission's
Rules--Broadband PCS Competitive Bidding and the Commercial Mobile
Radio Service Spectrum Cap; Amendment of the Commission's Cellular/
PCS Cross-Ownership Rule; WT Docket No. 96-59, GN Docket No. 90-314,
Report and Order, 11 FCC Rcd 7824, 7850-52, paras. 57-60 (1996)
(``PCS Report and Order''); see also 47 CFR 24.720(b).
\39\ See PCS Report and Order, 11 FCC Rcd at 7852, para. 60.
\40\ See Alvarez Letter 1998.
\41\ See Broadband PCS, D, E and F Block Auction Closes, Public
Notice, Doc. No. 89838 (rel. Jan. 14, 1997).
\42\ See C, D, E, and F Block Broadband PCS Auction Closes,
Public Notice, 14 FCC Rcd 6688 (WTB 1999). Before Auction No. 22,
the Commission established a very small standard for the C Block to
match the standard used for F Block. Amendment of the Commission's
Rules Regarding Installment Payment Financing for Personal
Communications Services (PCS) Licensees, WT Docket No. 97-82, Fourth
Report and Order, 13 FCC Rcd 15743, 15768, para. 46 (1998).
---------------------------------------------------------------------------
On January 26, 2001, the Commission completed the auction of 422 C
and F Block Broadband PCS licenses in Auction No. 35. Of the 35 winning
bidders in that auction, 29 claimed small business status.\43\
Subsequent events concerning Auction 35, including judicial and agency
determinations, resulted in a total of 163 C and F Block licenses being
available for grant. On February 15, 2005, the Commission completed an
auction of 242 C-, D-, E-, and F-Block licenses in Auction No. 58. Of
the 24 winning bidders in that auction, 16 claimed small business
status and won 156 licenses.\44\ On May 21, 2007, the Commission
completed an auction of 33 licenses in the A, C, and F Blocks in
Auction No. 71.\45\ Of the 12 winning bidders in that auction, five
claimed small business status and won 18 licenses.\46\ On August 20,
2008, the Commission completed the auction of 20 C-, D-, E-, and F-
Block Broadband PCS licenses in Auction No. 78.\47\ Of the eight
winning bidders for Broadband PCS licenses in that auction, six claimed
small business status and won 14 licenses.\48\
---------------------------------------------------------------------------
\43\ See C and F Block Broadband PCS Auction Closes; Winning
Bidders Announced, Public Notice, 16 FCC Rcd 2339 (2001).
\44\ See Broadband PCS Spectrum Auction Closes; Winning Bidders
Announced for Auction No. 58, Public Notice, 20 FCC Rcd 3703 (2005).
\45\ See Auction of Broadband PCS Spectrum Licenses Closes;
Winning Bidders Announced for Auction No. 71, Public Notice, 22 FCC
Rcd 9247 (2007).
\46\ Id.
\47\ See Auction of AWS-1 and Broadband PCS Licenses Closes;
Winning Bidders Announced for Auction 78, Public Notice, 23 FCC Rcd
12749 (WTB 2008).
\48\ Id.
---------------------------------------------------------------------------
Narrowband Personal Communications Services. To date, two auctions
of narrowband personal communications services (PCS) licenses have been
conducted. For purposes of the two auctions that have already been
held, ``small businesses'' were entities with average gross revenues
for the prior three calendar years of $40 million or less. Through
these auctions, the Commission has awarded a total of 41 licenses, out
of which 11 were obtained by small businesses. To ensure meaningful
participation of small business entities in future auctions, the
Commission has adopted a two-tiered small business size standard in the
Narrowband PCS Second Report and Order.\49\ A ``small business'' is an
entity that, together with affiliates and controlling interests, has
average gross
[[Page 32175]]
revenues for the three preceding years of not more than $40 million. A
``very small business'' is an entity that, together with affiliates and
controlling interests, has average gross revenues for the three
preceding years of not more than $15 million. The SBA has approved
these small business size standards.\50\
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\49\ Amendment of the Commission's Rules to Establish New
Personal Communications Services, Narrowband PCS, GEN Docket No. 90-
314, ET Docket No. 92-100, PP Docket No. 93-253, Second Report and
Order and Second Further Notice of Proposed Rulemaking, 15 FCC Rcd
10456 (2000).
\50\ See Letter to Amy Zoslov, Chief, Auctions and Industry
Analysis Division, Wireless Telecommunications Bureau, FCC, from
Aida Alvarez, Administrator, SBA (Dec. 2, 1998).
---------------------------------------------------------------------------
Rural Radiotelephone Service. The Commission has not adopted a size
standard for small businesses specific to the Rural Radiotelephone
Service. A significant subset of the Rural Radiotelephone Service is
the Basic Exchange Telephone Radio System (``BETRS''). In the present
context, the Commission uses the SBA's small business size standard
applicable to Wireless Telecommunications Carriers (except Satellite),
i.e., an entity employing no more than 1,500 persons.\51\ There are
approximately 1,000 licensees in the Rural Radiotelephone Service, and
the Commission estimates that there are 1,000 or fewer small entity
licensees in the Rural Radiotelephone Service that may be affected by
the rules and policies adopted herein.
---------------------------------------------------------------------------
\51\ NAICS Code 51210.
---------------------------------------------------------------------------
Wireless Communications Services. This service can be used for
fixed, mobile, radiolocation, and digital audio broadcasting satellite
uses in the 2305-2320 MHz and 2345-2360 MHz bands. The Commission
defined ``small business'' for the wireless communications services
(WCS) auction as an entity with average gross revenues of $40 million
for each of the three preceding years, and a ``very small business'' as
an entity with average gross revenues of $15 million for each of the
three preceding years.\52\ The SBA has approved these definitions.\53\
The Commission auctioned geographic area licenses in the WCS service.
In the auction, which commenced on April 15, 1997 and closed on April
25, 1997, there were seven bidders that won 31 licenses that qualified
as very small business entities, and one bidder that won one license
that qualified as a small business entity.
---------------------------------------------------------------------------
\52\ Amendment of the Commission's Rules to Establish Part 27,
the Wireless Communications Service (WCS), Report and Order, 12 FCC
Rcd 10785, 10879 para. 194 (1997).
\53\ See Letter to Amy Zoslov, Chief, Auctions and Industry
Analysis Division, Wireless Telecommunications Bureau, Federal
Communications Commission, from Aida Alvarez, Administrator, Small
Business Administration, dated December 2, 1998.
---------------------------------------------------------------------------
220 MHz Radio Service--Phase I Licensees. The 220 MHz service has
both Phase I and Phase II licenses. Phase I licensing was conducted by
lotteries in 1992 and 1993. There are approximately 1,515 such non-
nationwide licensees and four nationwide licensees currently authorized
to operate in the 220 MHz band. The Commission has not developed a
small business size standard for small entities specifically applicable
to such incumbent 220 MHz Phase I licensees. To estimate the number of
such licensees that are small businesses, the Commission applies the
small business size standard under the SBA rules applicable. The SBA
has deemed a wireless business to be small if it has 1,500 or fewer
employees.\54\ For this service, the SBA uses the category of Wireless
Telecommunications Carriers (except Satellite). Census data for 2007,
which supersede data contained in the 2002 Census, show that there were
1,383 firms that operated that year.\55\ Of those 1,383, 1,368 had
fewer than 100 employees, and 15 firms had more than 100 employees.
Thus under this category and the associated small business size
standard, the majority of firms can be considered small.
---------------------------------------------------------------------------
\54\ 13 CFR 121.201, NAICS code 517210 (2007 NAICS). The now-
superseded, pre-2007 CFR citations were 13 CFR 121.201, NAICS codes
517211 and 517212 (referring to the 2002 NAICS).
\55\ U.S. Census Bureau, 2007 Economic Census, Sector 51, 2007
NAICS code 517210 (rel. Oct. 20, 2009), https://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=700&-ds_name=EC0751SSSZ5&-_lang=en.
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220 MHz Radio Service--Phase II Licensees. The 220 MHz service has
both Phase I and Phase II licenses. The Phase II 220 MHz service is a
new service, and is subject to spectrum auctions. In the 220 MHz Third
Report and Order, the Commission adopted a small business size standard
for defining ``small'' and ``very small'' businesses for purposes of
determining their eligibility for special provisions such as bidding
credits and installment payments.\56\ This small business standard
indicates that a ``small business'' is an entity that, together with
its affiliates and controlling principals, has average gross revenues
not exceeding $15 million for the preceding three years.\57\ A ``very
small business'' is defined as an entity that, together with its
affiliates and controlling principals, has average gross revenues that
do not exceed $3 million for the preceding three years.\58\ The SBA has
approved these small size standards.\59\ Auctions of Phase II licenses
commenced on and closed in 1998.\60\ In the first auction, 908 licenses
were auctioned in three different-sized geographic areas: Three
nationwide licenses, 30 Regional Economic Area Group (EAG) Licenses,
and 875 Economic Area (EA) Licenses. Of the 908 licenses auctioned, 693
were sold.\61\ Thirty-nine small businesses won 373 licenses in the
first 220 MHz auction. A second auction included 225 licenses: 216 EA
licenses and 9 EAG licenses. Fourteen companies claiming small business
status won 158 licenses.\62\ A third auction included four licenses: 2
BEA licenses and 2 EAG licenses in the 220 MHz Service. No small or
very small business won any of these licenses.\63\ In 2007, the
Commission conducted a fourth auction of the 220 MHz licenses.\64\
Bidding credits were offered to small businesses. A bidder with
attributed average annual gross revenues that exceeded $3 million and
did not exceed $15 million for the preceding three years (``small
business'') received a 25 percent discount on its winning bid. A bidder
with attributed average annual gross revenues that did not exceed $3
million for the preceding three years received a 35 percent discount on
its winning bid (``very small business''). Auction 72, which offered 94
Phase II 220 MHz Service licenses, concluded in 2007.\65\ In this
auction, five winning bidders won a total of 76 licenses. Two winning
bidders identified themselves as very small businesses won 56 of the 76
licenses. One of the winning bidders that
[[Page 32176]]
identified themselves as a small business won 5 of the 76 licenses won.
---------------------------------------------------------------------------
\56\ Amendment of Part 90 of the Commission's Rules to Provide
For the Use of the 220-222 MHz Band by the Private Land Mobile Radio
Service, Third Report and Order, 12 FCC Rcd 10943, 11068-70 paras.
291-295 (1997).
\57\ Id. at 11068 para. 291.
\58\ Id.
\59\ See Letter to Daniel Phythyon, Chief, Wireless
Telecommunications Bureau, Federal Communications Commission, from
Aida Alvarez, Administrator, Small Business Administration, dated
January 6, 1998 (Alvarez to Phythyon Letter 1998).
\60\ See generally ``220 MHz Service Auction Closes,'' Public
Notice, 14 FCC Rcd 605 (WTB 1998).
\61\ See ``FCC Announces It is Prepared to Grant 654 Phase II
220 MHz Licenses After Final Payment is Made,'' Public Notice, 14
FCC Rcd 1085 (WTB 1999).
\62\ See ``Phase II 220 MHz Service Spectrum Auction Closes,''
Public Notice, 14 FCC Rcd 11218 (WTB 1999).
\63\ See ``Multi-Radio Service Auction Closes,'' Public Notice,
17 FCC Rcd 1446 (WTB 2002).
\64\ See ``Auction of Phase II 220 MHz Service Spectrum
Scheduled for June 20, 2007, Notice and Filing Requirements, Minimum
Opening Bids, Upfront Payments and Other Procedures for Auction 72,
Public Notice, 22 FCC Rcd 3404 (2007).
\65\ See ``Auction of Phase II 220 MHz Service Spectrum Licenses
Closes, Winning Bidders Announced for Auction 72, Down Payments due
July 18, 2007, FCC Forms 601 and 602 due July 18, 2007, Final
Payments due August 1, 2007, Ten-Day Petition to Deny Period, Public
Notice, 22 FCC Rcd 11573 (2007).
---------------------------------------------------------------------------
Wireless Telephony. Wireless telephony includes cellular, personal
communications services, and specialized mobile radio telephony
carriers. As noted, the SBA has developed a small business size
standard for Wireless Telecommunications Carriers (except
Satellite).\66\ Under the SBA small business size standard, a business
is small if it has 1,500 or fewer employees.\67\ According to Trends in
Telephone Service data, 413 carriers reported that they were engaged in
wireless telephony.\68\ Of these, an estimated 261 have 1,500 or fewer
employees and 152 have more than 1,500 employees.\69\ Therefore, more
than half of these entities can be considered small.
---------------------------------------------------------------------------
\66\ 13 CFR 121.201, NAICS code 517210.
\67\ Id.
\68\ Trends in Telephone Service at Table 5.3.
\69\ Id.
---------------------------------------------------------------------------
Satellite Telecommunications Providers. Two economic census
categories address the satellite industry. The first category has a
small business size standard of $15 million or less in average annual
receipts, under SBA rules.\70\ The second has a size standard of $25
million or less in annual receipts.\71\
---------------------------------------------------------------------------
\70\ 13 CFR 121.201, NAICS code 517410.
\71\ 13 CFR 121.201, NAICS code 517919.
---------------------------------------------------------------------------
The category of Satellite Telecommunications ``comprises
establishments primarily engaged in providing telecommunications
services to other establishments in the telecommunications and
broadcasting industries by forwarding and receiving communications
signals via a system of satellites or reselling satellite
telecommunications.'' \72\ Census Bureau data for 2007 show that 512
Satellite Telecommunications firms that operated for that entire
year.\73\ Of this total, 464 firms had annual receipts of under $10
million, and 18 firms had receipts of $10 million to $24,999,999.\74\
Consequently, the Commission estimates that the majority of Satellite
Telecommunications firms are small entities that might be affected by
our action.
---------------------------------------------------------------------------
\72\ U.S. Census Bureau, 2007 NAICS Definitions, ``517410
Satellite Telecommunications.''
\73\ See https://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=900&-ds_name=EC0751SSSZ4&-_lang=en.
\74\ https://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=900&-ds_name=EC0751SSSZ4&-_lang=en.
---------------------------------------------------------------------------
The second category, i.e., ``All Other Telecommunications,''
comprises ``establishments primarily engaged in providing specialized
telecommunications services, such as satellite tracking, communications
telemetry, and radar station operation. This industry also includes
establishments primarily engaged in providing satellite terminal
stations and associated facilities connected with one or more
terrestrial systems and capable of transmitting telecommunications to,
and receiving telecommunications from, satellite systems.
Establishments providing Internet services or Voice over Internet
Protocol (VoIP) services via client-supplied telecommunications
connections are also included in this industry.'' \75\ For this
category, Census Bureau data for 2007 show that there were a total of
2,383 firms that operated for the entire year.\76\ Of this total, 2,346
firms had annual receipts of under $25 million and 37 firms had annual
receipts of $25 million to $49, 999,999.\77\ Consequently, the
Commission estimates that the majority of All Other Telecommunications
firms are small entities that might be affected by our action.
---------------------------------------------------------------------------
\75\ https://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517919&search=2007%20NAICS%20Search.
\76\ U.S. Censhttps://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=900&-ds_name=EC0751SSSZ4&-_lang=en.
\77\ https://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=900&-ds_name=EC0751SSSZ4&-_lang=en.
---------------------------------------------------------------------------
2. Equipment Manufacturers
Radio and Television Broadcasting and Wireless Communications
Equipment Manufacturing. The Census Bureau defines this category as
follows: ``This industry comprises establishments primarily engaged in
manufacturing radio and television broadcast and wireless
communications equipment. Examples of products made by these
establishments are: Transmitting and receiving antennas, cable
television equipment, GPS equipment, pagers, cellular phones, mobile
communications equipment, and radio and television studio and
broadcasting equipment.'' \78\ The SBA has developed a small business
size standard for firms in this category, which is: All such firms
having 750 or fewer employees.\79\ According to Census Bureau data for
2010, there were a total of 810 establishments in this category that
operated for the entire year.\80\ Of this total, 787 had employment of
fewer than 500, and an additional 23 had employment of 500 to 999.\81\
Thus, under this size standard, the majority of firms can be considered
small.
---------------------------------------------------------------------------
\78\ U.S. Census Bureau, 2007 NAICS Definitions, ``334220 Radio
and Television Broadcasting and Wireless Communications Equipment
Manufacturing''; https://www.census.gov/naics/2007/def/ND334220.HTM#N334220.
\79\ 13 CFR 121.201, NAICS code 334220.
\80\ U.S. Census Bureau, American FactFinder, 2010 Economic
Census, Industry Series, Industry Statistics by Employment Size,
NAICS code 334220 (released June 26, 2012); https://factfinder.census.gov. The number of ``establishments'' is a less
helpful indicator of small business prevalence in this context than
would be the number of ``firms'' or ``companies,'' because the
latter take into account the concept of common ownership or control.
Any single physical location for an entity is an establishment, even
though that location may be owned by a different establishment.
Thus, the numbers given may reflect inflated numbers of businesses
in this category, including the numbers of small businesses.
\81\ Id. Eighteen establishments had employment of 1,000 or
more.
---------------------------------------------------------------------------
Semiconductor and Related Device Manufacturing. These
establishments manufacture ``computer storage devices that allow the
storage and retrieval of data from a phase change, magnetic, optical,
or magnetic/optical media. The SBA has developed a small business size
standard for this category of manufacturing; that size standard is 500
or fewer employees' storage and retrieval of data from a phase change,
magnetic, optical, or magnetic/optical media.'' \82\ According to data
from the 2007 U.S. Census, in 2007, there were 954 establishments
engaged in this business. Of these, 545 had from 1 to 19 employees; 219
had from 20 to 99 employees; and 190 had 100 or more employees.\83\
Based on this data, the Commission concludes that the majority of the
businesses engaged in this industry are small.
---------------------------------------------------------------------------
\82\ U.S. Census Bureau, 2007 Economic Census, Industry Series:
Manufacturing, ``Semiconductor and Related Device Manufacturing, ''
NAICS code 334413.
\83\ https://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-_skip=300&-ds_name=EC0731I1&-_lang=en.
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3. Information Service and Software Providers
Software Publishers. Since 2007 these services have been defined
within the broad economic census category of Custom Computer
Programming Services; that category is defined as establishments
primarily engaged in writing, modifying, testing, and supporting
software to meet the needs of a particular customer. The SBA has
developed a small business size standard for this category, which is
annual gross receipts of $25 million or less. According to data from
the 2007 U.S. Census, there were 41,571 establishments engaged in this
business in 2007. Of these, 40,149 had annual gross receipts of less
than $10,000,000. Another 1,422 establishments had gross receipts of
$10,000,000 or more. Based on this data, the Commission concludes
[[Page 32177]]
that the majority of the businesses engaged in this industry are small.
Internet Service Providers. Since 2007, these services have been
defined within the broad economic census category of Wired
Telecommunications Carriers; that category is defined as follows:
``This industry comprises establishments primarily engaged in operating
and/or providing access to transmission facilities and infrastructure
that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired telecommunications networks. Transmission
facilities may be based on a single technology or a combination of
technologies.'' \84\ The SBA has developed a small business size
standard for this category, which is: All such firms having 1,500 or
fewer employees.\85\ According to Census Bureau data for 2007, there
were 3,188 firms in this category, total, that operated for the entire
year.\86\ Of this total, 3,144 firms had employment of 999 or fewer
employees, and 44 firms had employment of 1000 employees or more.\87\
Thus, under this size standard, the majority of firms can be considered
small. In addition, according to Census Bureau data for 2007, there
were a total of 396 firms in the category Internet Service Providers
(broadband) that operated for the entire year.\88\ Of this total, 394
firms had employment of 999 or fewer employees, and two firms had
employment of 1000 employees or more.\89\ Consequently, the Commission
estimates that the majority of these firms are small entities that may
be affected by rules adopted pursuant to the R&O.
---------------------------------------------------------------------------
\84\ U.S. Census Bureau, 2007 NAICS Definitions, ``517110 Wired
Telecommunications Carriers'' (partial definition), available at
https://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517110&search=2007%20NAICS%20Search (last visited Mar.
27, 2013).
\85\ 13 CFR 121.201, NAICS code 517110.
\86\ U.S. Census Bureau, 2007 Economic Census, Information:
Subject Series--Estab and Firm Size: Table 5, ``Employment Size of
Firms for the United States: 2007, NAICS Code 517110'' (issued Nov.
2010).
\87\ See id.
\88\ U.S. Census Bureau, 2007 Economic Census, Information:
Subject Series--Estab and Firm Size: Table 5, ``Employment Size of
Firms for the United States: 2007, NAICS Code 5171103'' (issued Nov.
2010).
\89\ See id.
---------------------------------------------------------------------------
Internet Publishing and Broadcasting and Web Search Portals. The
Commission's action may pertain to interconnected Voice over Internet
Protocol (VoIP) services, which could be provided by entities that
provide other services such as email, online gaming, web browsing,
video conferencing, instant messaging, and other, similar IP-enabled
services. The Commission has not adopted a size standard for entities
that create or provide these types of services or applications.
However, the Census Bureau has identified firms that ``primarily
engaged in (1) publishing and/or broadcasting content on the Internet
exclusively or (2) operating Web sites that use a search engine to
generate and maintain extensive databases of Internet addresses and
content in an easily searchable format (and known as Web search
portals).'' \90\ The SBA has developed a small business size standard
for this category, which is: All such firms having 500 or fewer
employees.\91\ According to Census Bureau data for 2007, there were
2,705 firms in this category that operated for the entire year.\92\ Of
this total, 2,682 firms had employment of 499 or fewer employees, and
23 firms had employment of 500 employees or more.\93\ Consequently, the
Commission estimates that the majority of these firms are small
entities that may be affected by rules adopted pursuant to the R&O.
---------------------------------------------------------------------------
\90\ U.S. Census Bureau, ``2007 NAICS Definitions: 519130
Internet Publishing and Broadcasting and Web Search Portals,''
available at https://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=519130&search=2007%20NAICS%20Search (last visited Mar.
27, 2013).
\91\ See 13 CFR 121.201, NAICS code 519130.
\92\ U.S. Census Bureau, 2007 Economic Census, Information:
Subject Series--Estab and Firm Size: Table 5, ``Employment Size of
Firms for the United States: 2007, NAICS Code 519130'' (issued Nov.
2010).
\93\ Id.
---------------------------------------------------------------------------
All Other Information Services. The Census Bureau defines this
industry as including ``establishments primarily engaged in providing
other information services (except news syndicates, libraries,
archives, Internet publishing and broadcasting, and Web search
portals).'' \94\ The Commission's action pertains to interconnected
VoIP services, which could be provided by entities that provide other
services such as email, online gaming, web browsing, video
conferencing, instant messaging, and other, similar IP-enabled
services. The SBA has developed a small business size standard for this
category; that size standard is $7.0 million or less in average annual
receipts.\95\ According to Census Bureau data for 2007, there were 367
firms in this category that operated for the entire year.\96\ Of these,
334 had annual receipts of under $5.0 million, and an additional 11
firms had receipts of between $5 million and $9,999,999.\97\
Consequently, the Commission estimates that the majority of these firms
are small entities that may be affected by our action.
---------------------------------------------------------------------------
\94\ U.S. Census Bureau, ``2007 NAICS Definitions: 519190 All
Other Information Services'', available at https://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=519190&search=2007%20NAICS%20Search
(last visited Mar. 27, 2013).
\95\ See 13 CFR 121.201, NAICS code 519190.
\96\ U.S. Census Bureau, 2007 Economic Census, Information:
Subject Series--Estab and Firm Size: Table 5, ``Employment Size of
Firms for the United States: 2007, NAICS Code 519190'' (issued Nov.
2010).
\97\ U.S. Census Bureau, 2007 Economic Census, Information:
Subject Series--Estab and Firm Size: Table 4, ``Receipts Size of
Firms for the United States: 2007, NAICS Code 519190'' (issued Nov.
2010).
---------------------------------------------------------------------------
All Other Telecommunications. The Census Bureau defines this
industry as including ``establishments primarily engaged in providing
specialized telecommunications services, such as satellite tracking,
communications telemetry, and radar station operation. This industry
also includes establishments primarily engaged in providing satellite
terminal stations and associated facilities connected with one or more
terrestrial systems and capable of transmitting telecommunications to,
and receiving telecommunications from, satellite systems.
Establishments providing Internet services or Voice over Internet
Protocol (VoIP) services via client-supplied telecommunications
connections are also included in this industry.'' \98\ The SBA has
developed a small business size standard for this category; that size
standard is $30.0 million or less in average annual receipts.\99\
According to Census Bureau data for 2007, there were 2,383 firms in
this category that operated for the entire year.\100\ Of these, 2,305
establishments had annual receipts of under $10 million and 84
establishments had annual receipts of $10 million or more.\101\
Consequently, the Commission estimates that the majority of these firms
are small entities that may be affected by our action.
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\98\ U.S. Census Bureau, ``2007 NAICS Definitions: 517919 All
Other Telecommunications,'' available at https://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517919&search=2007%20NAICS%20Search
(last visited Mar. 27, 2013).
\99\ See 13 CFR 121.201, NAICS code 517919.
\100\ U.S. Census Bureau, 2007 Economic Census, Information:
Subject Series--Estab and Firm Size: Table 4, ``Receipts Size of
Firms for the United States: 2007, NAICS Code 517919'' (issued Nov.
2010).
\101\ See id.
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D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
In the R&O, the Commission amends its part 20 rules to require CMRS
providers and certain interconnected text providers to implement
``bounce-back'' messages when a consumer attempts to text 911 in an
area where text-to-911 is unavailable. Specifically, the rules apply to
all CMRS providers as well as all providers of interconnected text
messaging services that enable
[[Page 32178]]
consumers to send text messages to and receive text messages from all
or substantially all text-capable U.S. telephone numbers, including
through the use of applications downloaded or otherwise installed on
mobile phones. The rules also require covered text providers that are
delivering texts to PSAPs that are supporting text-to-911 to provide a
mechanism for the PSAP to request temporary suspension of text for any
reason, including but not limited to network congestion, call-taker
overload, PSAP failure, or security breach. In those circumstances, the
covered text provider must provide a bounce-back message to any
consumer attempting to send a text to 911 in the area covered by the
temporary suspension. Covered text providers must also provide a
mechanism to allow PSAPs to resume text-to-911 service after such
temporary suspension.
The projected compliance requirements resulting from the R&O will
apply to all entities in the same manner. The Commission believes that
applying the same rules equally to all entities in this context is
necessary to alleviate potential consumer confusion from adopting
different rules for different providers. As the nation transitions to
full text-to-911, it is critical that all consumers, including
consumers of services offered by small entities, be made aware of the
limitations of text-to-911 in their area. The Commission believes, and
the record in this proceeding confirms, that the costs and/or
administrative burdens associated with the rules will not unduly burden
small entities.
Compliance costs for the new rule will be small, requiring only
minor coding and/or server changes. Based on the record, CMRS providers
and interconnected text providers have agreed that these changes are
technically and financially feasible, with small costs to the covered
provider. Additionally, the Commission provides an example of language
that covered providers may use to satisfy the bounce-back requirement,
further reducing potential administrative, legal and technical costs of
compliance.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
The RFA requires an agency to describe any significant,
specifically small business alternatives that it has considered in
reaching its proposed approach, which may include the following four
alternatives (among others): ``(1) the establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use
of performance, rather than design, standards; and (4) an exemption
from coverage of the rule, or any part thereof, for small entities.
''\102\
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\102\ 5 U.S.C. 603(c)(1)-(c)(4).
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Based on the Commission's review of the record, the Commission
finds that it is practicable for all CMRS providers, including small
providers, to implement a bounce-back notification without incurring
unduly burdensome costs. The record also reflects that it would not be
unduly burdensome for covered text providers to implement bounce-back
capability.\103\ The record in this proceeding indicates that some
service providers, including small or rural providers,\104\ as well as
covered text providers,\105\ already send an automatic bounce-back
message to their subscribers when a subscriber attempts to send a text
to 911. The R&O recognizes the technical and operational issues that
must be addressed before imposing a specific notification requirement,
and allows time for implementation of a standardized message.
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\103\ See, e.g., Letter from Rebecca Murphy Thompson, General
Counsel, to Marlene H. Dortch, Secretary, Federal Communications
Commission, in PS Docket No. 11-153 and PS Docket No. 10-255, March
25, 2013 (CCA Ex Parte); Proximiti Comments at 1.
\104\ For example, SouthernLINC.
\105\ For example, textPlus and Heywire.
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In considering the record received in response to the FNPRM, the
Commission examined alternatives to ease the burden on small and rural
covered text providers. These alternatives included extending the
implementation deadline, or exempting small and rural covered text
providers. However, the record in this proceeding indicates that the
technical and financial costs for implementing bounce-back messages are
small. Many small carriers have argued that they can meet the
requirements imposed in this R&O on a faster timeline than the one
established in the rules. For example, the Competitive Carriers
Association (CCA), which represents many small and rural CMRS
providers, states that, ``. . . based on recent business developments
cultivated by CCA and its members, most CCA carrier members will now be
able to implement a bounce-back message by June 30, 2013. ''\106\
Nonetheless, in order to further ease the burden on small and rural
covered providers, the rules the Commission adopts in the R&O extend
the deadline proposed in the Further Notice of Proposed Rulemaking from
June 30, 2013 to September 30, 2013. Additionally, the rules adopted in
the R&O allow for certain limited exemptions in cases where it is
technologically infeasible to implement a bounce-back message (e.g.,
for certain handsets that are incapable of doing so).
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\106\ CCA Ex Parte at 1.
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Further, the R&O contains a detailed Cost-Benefit Analysis which
finds that the life-saving public safety benefits of imposing a bounce-
back requirement on covered text providers far outweigh the costs of
such a rule.
Finally, in the event that small entities face unique circumstances
with respect to these rules, such entities may request waiver relief
from the Commission. Accordingly, the Commission finds that it has
discharged its duty to consider the burdens imposed on small entities.
E. Legal Basis
The legal basis for any action that may be taken pursuant to this
R&O is contained in Sections 1, 4(i), 301, 303(b), 303(r), 307, 309,
316, 319, 324, 332, 333, 615a, 615a-1, and 615b of the Communications
Act of 1934, as amended, 47 U.S.C. 151, 154(i), 301, 303(b), 303(r),
307, 309, 316, 319, 324, 332, 333, 615a, 615a-1, 615b, and 47 U.S.C.
615c.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
None.
List of Subjects in 47 CFR Part 20
Communications common carriers, Communications equipment, Radio.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 20 as follows:
PART 20--COMMERCIAL MOBILE SERVICES
0
1. The authority citation for part 20 is revised to read as follows:
Authority: 47 U.S.C. Sections 151, 154, 160, 201, 251-254, 301,
303, 303(b), 303(r), 307, 309, 316, 319, 324, 332, 333, 615a, 615a-
1, 615b, and 615c unless otherwise noted. Section 20.12 is also
issued under 47 U.S.C. 1302.
0
2. Section 20.18 is amended by adding paragraph (n) to read as follows:
[[Page 32179]]
Sec. 20.18 911 Service.
* * * * *
(n) Text-to-911 Requirements. (1) Covered Text Provider:
Notwithstanding any other provisions in this section, for purposes of
this paragraph (n) of this section, a ``covered text provider''
includes all CMRS providers as well as all providers of interconnected
text messaging services that enable consumers to send text messages to
and receive text messages from all or substantially all text-capable
U.S. telephone numbers, including through the use of applications
downloaded or otherwise installed on mobile phones.
(2) Automatic Bounce-back Message: an automatic text message
delivered to a consumer by a covered text provider in response to the
consumer's attempt to send a text message to 911 when the consumer is
located in an area where text-to-911 service is unavailable or the
covered text provider does not support text-to-911 service generally or
in the area where the consumer is located at the time.
(3) No later than September 30, 2013, all covered text providers
shall provide an automatic bounce-back message under the following
circumstances:
(i) A consumer attempts to send a text message to a Public Safety
Answering Point (PSAP) by means of the three-digit short code ``911'';
and
(ii) The covered text provider cannot deliver the text because the
consumer is located in an area where:
(A) Text-to-911 service is unavailable; or
(B) The covered text provider does not support text-to-911 service
at the time.
(4)(i) A covered text provider is not required to provide an
automatic bounce-back message when:
(A) Transmission of the text message is not controlled by the
provider;
(B) A consumer is attempting to text 911, through a text messaging
application that requires CMRS service, from a non-service initialized
handset;
(C) When the text-to-911 message cannot be delivered to a PSAP due
to failure in the PSAP network that has not been reported to the
provider; or
(D) A consumer is attempting to text 911 through a device that is
incapable of sending texts via three digit short codes, provided the
software for the device cannot be upgraded over the air to allow text-
to-911.
(ii) The provider of a preinstalled or downloadable interconnected
text application is considered to have ``control'' over transmission of
text messages for purposes of paragraph (n)(4)(i)(A) of this section.
However, if a user or a third party modifies or manipulates the
application after it is installed or downloaded so that it no longer
supports bounce-back messaging, the application provider will be
presumed not to have control.
(5) The automatic bounce-back message shall, at a minimum, inform
the consumer that text-to-911 service is not available and advise the
consumer or texting program user to use another means to contact
emergency services.
(6) Covered text providers that support text-to-911 must provide a
mechanism to allow PSAPs that accept text-to-911 to request temporary
suspension of text-to-911 service for any reason, including, but not
limited to, network congestion, call taker overload, PSAP failure, or
security breach, and to request resumption of text-to-911 service after
such temporary suspension. During any period of suspension of text-to-
911 service, the covered text provider must provide an automatic
bounce-back message to any consumer attempting to text to 911 in the
area subject to the temporary suspension.
(7) A CMRS provider subject to Sec. 20.12 shall provide an
automatic bounce-back message to any consumer roaming on its network
who sends a text message to 911 when
(i) The consumer is located in an area where text-to-911 service is
unavailable, or
(ii) The CMRS provider does not support text-to-911 service at the
time.
(8) A software application provider that transmits text messages
directly into the SMS network of the consumer's underlying CMRS
provider satisfies the obligations of paragraph (n)(3) of this section
provided it does not prevent or inhibit delivery of the CMRS provider's
automatic bounce-back message to the consumer.
[FR Doc. 2013-12748 Filed 5-28-13; 8:45 am]
BILLING CODE 6712-01-P
