Scope of NTIA's Authority Regarding FirstNet Fees, 40958-40962 [2017-18221]

Download as PDF 40958 Federal Register / Vol. 82, No. 166 / Tuesday, August 29, 2017 / Rules and Regulations should have no effect on Federal or state expenditures. IV. Executive Orders 12866 and 13563 jstallworth on DSKBBY8HB2PROD with RULES Administrative Procedure Act, 5 U.S.C. 553 (APA). The APA provides an exception to the notice and comment procedures when an agency finds there is good cause for dispensing with such procedures on the basis that they are impracticable, unnecessary or contrary to the public interest. We have determined that under 5 U.S.C. 553(b)(3)(B) good cause exists for dispensing with the notice of proposed rulemaking and public comment procedures for this rule. Specifically, this rulemaking comports and is consistent with the statutory authority set forth in the Debt Collection Improvement Act of 1996, with no issues of policy discretion. Accordingly, we believe that opportunity for prior comment is unnecessary and contrary to the public interest, and we are issuing these revised regulations as a final rule that will apply to all future cases under this authority. List of Subject in 41 CFR Part 105–70 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a not significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. The Office of Management and Budget (OMB) has reviewed this final rule in accordance with the provisions of E.O. 12866 and has determined that it does not meet the criteria for a significant regulatory action. As indicated above, the provisions contained in this final rulemaking set forth the inflation adjustments in compliance with the Debt Collection Improvement Act of 1996 for specific applicable CMPs. The great majority of individuals, organizations and entities addressed through these regulations do not engage in such prohibited conduct, and as a result, we believe that any aggregate economic impact of these revised regulations will be minimal, affecting only those limited few who may engage in prohibited conduct in violation of the statute. As such, this final rule and the inflation adjustment contained therein VerDate Sep<11>2014 15:04 Aug 28, 2017 Jkt 241001 V. Regulatory Flexibility Act The Administrator of General Services certifies that this final rule will not have a significant economic impact on a substantial number of small business entities. While some penalties may have an impact on small business entities, it is the nature of the violation and not the size of the entity that will result in an action by the agency, and the aggregate economic impact of this rulemaking on small business entities should be minimal, affecting only those few who have engaged in prohibited conduct in violation of statutory intent. VI. Paperwork Reduction Act This final rule imposes no new reporting or recordkeeping requirements necessitating clearance by OMB. Administrative hearing, Claims, Program fraud. Dated: July 18, 2017. Timothy Horne, Acting Administrator of General Services. Accordingly, 41 CFR part 105–70 is amended as set forth below: PART 105–70—IMPLEMENTATION OF THE PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 1. The authority citation for 41 CFR part 105–70 continues to read as follows: ■ Authority: 40 U.S.C. 486(c); 31 U.S.C. 3809. § 105–70.003 [Amended] 2. Amend § 105–70.003 by— a. Removing from paragraph (a)(1)(iv) the amount ‘‘5,500’’ and adding ‘‘10,781’’ in its place; and ■ b. Removing from paragraph (b)(1)(ii) the amount ‘‘5,500’’ and adding ‘‘10,781’’ in its place. ■ ■ [FR Doc. 2017–18274 Filed 8–28–17; 8:45 am] BILLING CODE 6820–81–P PO 00000 DEPARTMENT OF COMMERCE National Telecommunications and Information Administration 47 CFR Chapter V [Docket No. 151209999–7323–02] RIN 0660–AA30 Scope of NTIA’s Authority Regarding FirstNet Fees National Telecommunications and Information Administration, U.S. Department of Commerce. ACTION: Final rule. AGENCY: SUMMARY: Congress authorized the First Responder Network Authority (FirstNet), an independent authority within the National Telecommunications and Information Administration (NTIA), to assess and collect, among other funds, three specific types of fees. By law, NTIA must review and approve these fees on an annual basis. This final rule describes NTIA’s overarching scope, boundaries, and guidelines for its FirstNet fee review and approval process as mandated by the Middle Class Tax Relief and Job Creation Act of 2012 (the Act). DATES: Effective on August 29, 2017. FOR FURTHER INFORMATION CONTACT: Patrick Sullivan; Office of Public Safety Communications; National Telecommunications and Information Administration; U.S. Department of Commerce; 1401 Constitution Avenue NW., Washington, DC 20230; psullivan@ntia.doc.gov. SUPPLEMENTARY INFORMATION: I. Background The Act established FirstNet as an independent authority within NTIA charged with ensuring the building, deployment, and operation of an interoperable nationwide public safety broadband network (Network).1 It also requires FirstNet to be self-sustainable.2 The Act authorizes FirstNet to, among other actions, assess and collect the following specific fees: (1) Network user fees, including user fees associated with state use of elements of the core network; (2) lease fees related to network capacity, pursuant to a covered leasing agreement; and (3) fees from entities seeking to access or use any equipment or infrastructure constructed or otherwise owned by FirstNet.3 It requires the total amount of these fees, 1 See 47 U.S.C. 1426(a)–(b)(1). 47 U.S.C. 1428(b). 3 See 47 U.S.C. 1428(a); 47 U.S.C. 1442(f). 2 See Frm 00016 Fmt 4700 Sfmt 4700 E:\FR\FM\29AUR1.SGM 29AUR1 Federal Register / Vol. 82, No. 166 / Tuesday, August 29, 2017 / Rules and Regulations for each fiscal year, to be sufficient, but not to exceed, the amount necessary to recoup the total expenses of FirstNet as it carries out its duties under the Act.4 FirstNet must reinvest amounts received from the assessment of these fees for constructing, maintaining, operating, or improving the Network.5 Finally, as an element of NTIA’s oversight responsibilities for FirstNet, NTIA must review these fees on an annual basis, and such fees may only be assessed if approved by NTIA.6 This action: (1) Adopts the tenets of the proposed rule; (2) finds that Congress established a statutory framework for NTIA to use to determine the reasonableness of FirstNet’s proposed fees; (3) establishes the scope of NTIA’s fee review and approval process in fulfillment of the Act’s requirements that FirstNet be selfsustainable and invest back into the Network; (4) defines the fees subject to NTIA review; and (5) details NTIA’s fee review and approval methodology, timing, and process. NTIA published a proposed rule for this action on December 15, 2015 (80 FR 77592). The preamble to the proposed rule gives more background and information on FirstNet’s and NTIA’s respective duties with regard to the Network and related fees and other income, and describes the scope and method of NTIA’s fee review and approval process, which are not repeated here. jstallworth on DSKBBY8HB2PROD with RULES II. Response to Comments The comment period on the proposed rule ended on January 14, 2016. NTIA received eight comments: two from states, one from a local public safety organization, one from a telecommunications service provider, and four from trade associations. Comments on the proposed rule included several similar positions, inquiries both within and outside the scope of the rule, and recommendations stemming from the proposed rule and its preamble. NTIA has carefully considered each of the comments submitted. It has grouped and summarized the comments according to common themes and has responded accordingly. All written comments can be found at https:// www.regulations.gov/ document?D=NTIA-2016-0001-0001. 4 See 47 U.S.C. 1428(b). 47 U.S.C. 1428(d). 6 See 47 U.S.C. 1428(c). 5 See VerDate Sep<11>2014 15:04 Aug 28, 2017 Jkt 241001 A. Standard of NTIA Fee Review and Approval Comment 1: A majority of commenters agreed that NTIA’s fee review and approval should be scoped to determine whether the amount of FirstNet’s fees, in aggregate and in combination with any FirstNet non-feebased income, is sufficient to cover, but does not exceed the amount necessary for, FirstNet’s execution of its statutory duties. However, one commenter asserted that the Act is not explicit on NTIA’s standard of review and offers no guidance to NTIA that its fee review and approval process should further FirstNet’s self-sustainability requirements. Thus, the commenter asserted, NTIA’s fee review should include review and approval of each individual fee FirstNet proposes to assess and collect. Response: Congress did not direct NTIA to review each individual fee FirstNet proposes to assess and collect. The Act mandates that ‘‘[t]he total amount of the fees assessed for each fiscal year . . . shall be sufficient, and shall not exceed the amount necessary, to recoup the total expenses of [FirstNet] in carrying out its duties and responsibilities [under the Act] for the fiscal year involved,’’ 7 and that NTIA review these fees annually.8 Thus, NTIA interprets the fee review requirement to compel an annual review of the aggregate fees assessed by FirstNet and determine whether these fees in toto are appropriate to enable FirstNet to recoup its expenses and be self-sustaining. This interpretation corresponds to the Act’s goal of creating ‘‘permanent selffunding.’’ 9 B. Reasonableness of a Proposed Fee Comment 1: While several commenters contend Congress did not require NTIA to conduct a review of the reasonableness of fees proposed by FirstNet, others disagree. One commenter suggests that NTIA misreads the statute in not finding a statutory requirement for a reasonableness review of each fee given the Act’s goal of providing broadband service to first responders. Other commenters assert, as a matter of policy, that NTIA should seek state input or otherwise make determinations about the reasonableness of the fees FirstNet proposes to assess and collect. 7 47 U.S.C. 1428(b). 47 U.S.C. 1428(c) (‘‘NTIA shall review the fees assessed under this section on an annual basis, and such fees may only be assessed if approved by the NTIA.’’). 9 47 U.S.C. 1428. 8 See PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 40959 Response: Congress did not mandate that NTIA engage in a reasonableness review of each fee FirstNet proposes to assess and collect.10 To ensure that the fees that FirstNet assesses are reasonable and not excessive, as noted above, the Act mandates that ‘‘[t]he total amount of the fees assessed for each fiscal year . . . shall be sufficient, and shall not exceed the amount necessary, to recoup the total expenses of [FirstNet] in carrying out its duties and responsibilities [under the Act] for the fiscal year involved.’’ 11 This requirement therefore sets the boundaries of what constitutes reasonable fees for FirstNet to assess and collect. Thus, consistent with NTIA’s fee review and approval scope, NTIA will approve FirstNet’s fees as reasonable only if FirstNet’s fees, in aggregate and in combination with any FirstNet non-fee-based income, are sufficient to cover, but do not exceed the amount necessary for, FirstNet’s execution of its statutory duties for each fiscal year. Comment 2: One commenter claimed that NTIA should expand its fee review to control the activity of FirstNet’s Network partner and discourage any possible anticompetitive activity associated with access to spectrum licensed to FirstNet. Response: The Act does not require NTIA to regulate spectrum use; rather, the Act assigns decisions on the lawful use of FirstNet’s spectrum resources to FirstNet. Thus, NTIA’s fee review will assess whether the Act’s selfsustainability goals are being achieved— not how FirstNet uses its licensed spectrum. C. Focus of NTIA Fee Review Methodology Comment 1: Commenters generally agreed with NTIA’s method of reviewing FirstNet’s proposed fees. One party sought clarification on what total expenses and costs would be included in NTIA’s assessment of whether FirstNet’s fees and non-fee-based income meet but do not exceed its total expenses. Response: While such expenses and costs were outlined in the preamble of the proposed rule, NTIA agrees that defining the term ‘‘expenses’’ in the rule will provide clarity for FirstNet and other stakeholders. For this reason, NTIA has amended the rule to include a definition of ‘‘expenses’’ as the term is discussed in the proposed rule 10 See 11 47 E:\FR\FM\29AUR1.SGM 47 U.S.C. 1428(c). U.S.C. 1428(b). 29AUR1 40960 Federal Register / Vol. 82, No. 166 / Tuesday, August 29, 2017 / Rules and Regulations jstallworth on DSKBBY8HB2PROD with RULES preamble.12 As stated in the final rule below, non-fee-based income received by FirstNet means, for purposes of this rule, FirstNet’s receipt of money from any source, transaction, entity, or any other means allowed under 47 U.S.C. 1401 et seq., other than those receipts described in the definition of ‘‘fee.’’ Comment 2: Commenters generally agreed that NTIA should defer to FirstNet on any need for reserves, working capital, or similar fund categories. One commenter sought a definition of the term ‘‘necessary reserves’’ for purposes of NTIA’s fee review and approval process. Response: NTIA agrees that defining the scope of necessary reserve funds on which it will defer to FirstNet provides further clarity on NTIA’s fee review methodology. Accordingly, NTIA has included in the final rule a definition of ‘‘necessary reserve funds.’’ 13 Necessary reserve funds means, for purposes of this rule, any amount of money identified by FirstNet in its standard financial documentation to meet expected and unexpected future expenses that may arise in the course of FirstNet executing its statutory powers, duties, and responsibilities under 47 U.S.C. 1401 et seq., including but not limited to capital reserve funds, operating reserve funds, maintenance reserve funds, and improvement reserve funds. Comment 3: One commenter proposed that, if NTIA disapproves FirstNet’s fee proposal, it should clearly articulate the reasons for such rejection. Response: NTIA agrees that providing guidance on reasons for any disapproval of FirstNet’s proposed fees will assist FirstNet in providing revised fee proposals that may be approved. As with the proposed rule, the final rule requires written notification of NTIA’s determination on FirstNet’s proposed fees, and NTIA anticipates providing relevant details justifying its decision in that written communication. Comment 4: One commenter proposed that NTIA establish a timeline during which FirstNet must provide its proposed fees and NTIA must review and finalize a determination on FirstNet’s proposal. Response: NTIA agrees that providing a detailed timeline for NTIA’s fee review and approval process will offer 12 Further, because the proposed rule preamble, fee review methodology, proposed and final rule, and new definition of ‘‘expenses’’ all utilize the term ‘‘standard financial documentation,’’ NTIA has provided a definition of this term in the final rule consistent with the proposed rule preamble to provide further clarity to stakeholders. 13 This definition reflects the term’s use in the proposed rule preamble. VerDate Sep<11>2014 15:04 Aug 28, 2017 Jkt 241001 certainty to potential users of the Network, FirstNet, and its Network partner. Accordingly, NTIA has revised its final rule to include such a timeline for NTIA’s fee review process. As stated in the final rule, NTIA will abide by the Fee Review Schedule as set out in § 500.5(g)(1) through (5). Comment 5: One commenter proposed that NTIA should address the possibility that FirstNet’s fees may not be approved by the start of the new fiscal year. The commenter proposed that, should FirstNet’s fees not be approved by the first day of the fiscal year, FirstNet may operate under the prior year’s fees until fees for the next fiscal year are approved. Response: NTIA agrees that providing contingency procedures in the event that NTIA disapproves FirstNet’s proposed fees for a given fiscal year may provide continuation of funding sources for the Network while FirstNet revises its fees. Accordingly, NTIA adds a provision to its final rule stating that, should NTIA disapprove FirstNet’s proposed fees, fees approved by NTIA for the prior fiscal year may be assessed by FirstNet during the instant fiscal year until such time that NTIA approves FirstNet’s proposed fees for the instant fiscal year. D. Fees Subject to NTIA Review and FirstNet Reconsideration Upon NTIA Disapproval Comment 1: Commenters generally agreed that NTIA is authorized under the Act to only consider the three types of fees authorized under 47 U.S.C. 1428(a). Two commenters sought further review on this when there is more clarity regarding the specific types of revenue FirstNet will collect, especially with regard to the specific fee structure established with FirstNet’s Network partner. Response: During FirstNet’s public procurement process, NTIA and stakeholders had sufficient clarity of FirstNet’s planned approach to evaluate and shape NTIA’s proposed fee review process.14 Accordingly, NTIA determines that its rule includes all provisions necessary to execute its statutory duties and does not at this time anticipate a need to revise its rule. 14 For example, Section L.3.3.3 of FirstNet’s Request for Proposals for the deployment of the Network (RFP) required a schedule for nationwide payments to FirstNet. Such payment from FirstNet’s Network partner, to be made annually, constitute fees identified in 47 U.S.C. 1428(a)(2). See FirstNet Nationwide Public Safety Broadband Network (NPSBN); Request for Proposals, Solicitation Number: D15PS00295E, Department of the Interior (Jan. 13, 2016). PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 E. Income Other Than Fees Is Not Subject to NTIA Fee Review Comment 1: Commenters sought clarity on whether NTIA would review any charges imposed or income collected by FirstNet or any other party beyond those specific fees authorized under 47 U.S.C. 1428(a). One commenter urged NTIA to review and approve fees charged by FirstNet’s Network partner. Response: As indicated in the proposed rule, income received by FirstNet other than from fees authorized under 47 U.S.C. 1428(a) is not directly subject to NTIA review under 47 U.S.C. 1428(b) and (c). NTIA has included language further clarifying this determination in the final rule. However, NTIA will consider such non-fee-based income of FirstNet as part of its overall determination of whether the total of the fees defined in 47 U.S.C. 1428(a), together with such additional income, will be sufficient to recoup FirstNet’s total expenses, but not exceed the amount necessary to carry out its statutory powers, duties, and responsibilities under the Act for the fiscal year involved. F. Comment Outside the Scope of Rule Comment 1: One commenter requested that NTIA, in developing requirements for the review of a state’s demonstration of the cost effectiveness of its state alternative plan to operate the RAN within that state pursuant to 47 U.S.C. 1442(e)(3)(D)(ii), restrict its assessment to whether the applicant state has sufficient funds to maintain the state’s RAN. Response: NTIA has issued a Notice and Request for Comment on its duties with regard to 47 U.S.C. 1442(e)(3)(D) and invites parties to review that Notice and any further Notices in that proceeding.15 III. Changes From the Proposed Rule In response to comments, NTIA included definitions of the terms ‘‘expenses,’’ ‘‘standard financial documentation,’’ and ‘‘necessary reserves.’’ NTIA clarifies that user fees associated with state use of elements of the core network, referenced in 47 U.S.C. 1442(f), are user fees authorized by 47 U.S.C. 1428(a) and subject to NTIA review. NTIA affirms its fee review scope in the context of non-feebased income as that term is defined in the rule. NTIA also provides 15 See State Alternative Plan Program (SAPP) and the First Responder Network Authority Nationwide Public Safety Broadband Network, Notice and Request for Comments, Docket Number: 160706588–6588–01 (81 FR 46907, Jul. 19, 2016). E:\FR\FM\29AUR1.SGM 29AUR1 Federal Register / Vol. 82, No. 166 / Tuesday, August 29, 2017 / Rules and Regulations contingency provisions in the event NTIA disapproves FirstNet proposed fees and sets a timeline during which FirstNet and NTIA will propose and review fees pursuant to 47 U.S.C. 1428. Finally, NTIA makes minor clarifying edits in conformance with the Act. IV. Classification The Director of Administration and Chief Financial Officer of the National Telecommunications and Information Administration, who is performing the non-exclusive duties of the Assistant Secretary for Communications and Information, has determined that this final rule is consistent with the Act and other applicable law. The need to implement these measures in a timely manner constitutes good cause under authority contained in 5 U.S.C. 553(d)(3) to waive the 30-day waiting period and make the rule effective immediately upon publication in the Federal Register. It would be impractical to have to wait 30 days before the rule is effective because FirstNet requires the ability to assess and collect fees in order to ensure the deployment and operation of the Network, which will benefit first responders and the public at large. In addition, this final rule does not impose any requirements or obligations on members of the public. This final rule has been determined to be not significant for purposes of Executive Order 12866. It has been determined that the final rule is not major under 5 U.S.C. 801 et seq. The Chief Counsel for Regulations for the Department of Commerce certified at the proposed rule stage that this rule does not have a significant economic impact on a substantial number of small entities. NTIA did not receive any comments on the certification, and the underlying analysis for the certification has not changed since the publication of the proposed rule. Dated: August 23, 2017. Leonard Bechtel, Chief Financial Officer and Director of Administration, performing the non-exclusive duties of the Assistant Secretary for Communications and Information, National Telecommunications and Information Administration. jstallworth on DSKBBY8HB2PROD with RULES List of Subjects in 47 CFR Part 500 Broadband, Fees, First Responder Network Authority, National Telecommunications and Information Administration, Safety, Telecommunications. For the reasons set out in the preamble, the National ■ VerDate Sep<11>2014 15:04 Aug 28, 2017 Jkt 241001 Telecommunications and Information Administration adds 47 CFR chapter V to read as follows: 47 CFR Chapter V—The First Responder Network Authority (Parts 500–599) Subchapter A—National Telecommunications and Information Administration Regulations (Parts 500–549) PART 500—REVIEW AND APPROVAL OF FEES PROPOSED BY THE FIRST RESPONDER NETWORK AUTHORITY (FIRSTNET) PARTS 501–549 [RESERVED] Subchapter B—(Parts 550–599) [Reserved] Subchapter A—National Telecommunications and Information Administration Regulations (Parts 500– 549) PART 500—REVIEW AND APPROVAL OF FEES PROPOSED BY THE FIRST RESPONDER NETWORK AUTHORITY (FIRSTNET) Sec. 500.1 Purpose and scope. 500.2 General definitions. 500.3 NTIA duty to review FirstNet proposed fees. 500.4 Scope of NTIA review of FirstNet proposed fees. 500.5 Methodology of NTIA fee review and approval process. Authority: 47 U.S.C. 1401. § 500.1 Purpose and scope. Sections 500.2 through 500.5 of this part implement 47 U.S.C. 1428(c) as codified pursuant to the Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112–96, Title VI, 126 Stat. 256 (codified at 47 U.S.C. 1401 et seq.)) (Act), which requires the National Telecommunications and Information Administration (NTIA) to annually review fees the First Responder Network Authority (FirstNet) proposes to assess pursuant to 47 U.S.C. 1428(a). § 500.2 General definitions. Expenses means incursions of costs by FirstNet in the course of executing its statutory powers, duties, and responsibilities under 47 U.S.C. 1401 et seq., including but not limited to: (1) Salaries and Benefits; (2) Travel; (3) Services: Federal Sources; (4) Services: Non-Federal Sources; (5) Facilities Rental; (6) Supplies, Materials, and Printing; (7) Equipment; and (8) Other Expenses incurred for future contract award, necessary reserve funds, including for all other permitted purposes under the Act, or other authorized expenses as identified in PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 40961 FirstNet’s standard financial documentation. Fee means: (1) FirstNet’s receipt of money from: (i) Network User Fees, including User Fees Associated with State Use of Elements of the Core Network; (ii) Lease Fees Related To Network Capacity; or (iii) Lease Fees Related To Network Equipment And Infrastructure, as those terms are defined under 47 U.S.C. 1428(a) and 47 U.S.C. 1442(f). (2) Income received by FirstNet other than from fees authorized under 47 U.S.C. 1428(a) is not directly subject to NTIA review. However, NTIA will consider such non-fee-based income as part of its determination of whether such income, when combined in aggregate with the fees authorized under 47 U.S.C. 1428(a), will be sufficient to recoup FirstNet’s total expenses, but not exceed the amount necessary to carry out its statutory powers, duties, and responsibilities under 47 U.S.C. 1401 et seq. for the fiscal year involved. FirstNet means the First Responder Network Authority. Fiscal Year means the 12-month accounting period for the federal government, which begins on October 1 of a given year and ends on September 30 of the subsequent year. Necessary reserve funds means any amount of money identified by FirstNet in its standard financial documentation to meet expected and unexpected future expenses that may arise in the course of FirstNet executing its statutory powers, duties, and responsibilities under 47 U.S.C. 1401 et seq., including but not limited to capital reserve funds, operating reserve funds, maintenance reserve funds, and improvement reserve funds. Non-fee-based income received by FirstNet means FirstNet’s receipt of money from any source, transaction, entity, or any other means allowed under 47 U.S.C. 1401 et seq., other than those receipts described above in the definition of ‘‘fee.’’ NTIA means the National Telecommunications and Information Administration. NTIA’s fee review and approval process means the process by which NTIA executes its duties under 47 U.S.C. 1428(c). Standard financial documentation means documents developed by FirstNet in its ordinary course of business that detail FirstNet’s current and projected financial condition, which may include but is not limited to: (1) FirstNet’s budget documents produced in the normal course of its business; E:\FR\FM\29AUR1.SGM 29AUR1 40962 Federal Register / Vol. 82, No. 166 / Tuesday, August 29, 2017 / Rules and Regulations (2) FirstNet’s financial statements produced in the normal course of its business; (3) FirstNet’s annual financial audit documents, which detail FirstNet’s revenue categories and statutory authority for such categories; (4) FirstNet’s annual budget reports submitted as part of the President’s Budget; and (5) FirstNet’s annual report to Congress. § 500.3 NTIA duty to review FirstNet proposed fees. As required under 47 U.S.C. 1428(c), NTIA shall exclusively review fees, which must be proposed by FirstNet in writing, through NTIA’s review and approval process conducted on an annual basis. § 500.4 Scope of NTIA review of FirstNet proposed fees. NTIA shall approve FirstNet proposed fees only if such fees, when combined with any non-fee-based income projected to be received by FirstNet, are sufficient, but do not exceed the amount necessary, to recoup FirstNet’s projected total expenses in carrying out its powers, duties, and responsibilities under 47 U.S.C. 1401 et seq. for the fiscal year involved. § 500.5 Methodology of NTIA fee review and approval process. jstallworth on DSKBBY8HB2PROD with RULES (a) Fee review approach. To execute NTIA’s fee review and approval process, NTIA shall utilize FirstNet’s submission and FirstNet’s standard financial documentation. (b) Deference to FirstNet on necessary reserve funds. In executing NTIA’s fee review and approval process, NTIA shall defer to FirstNet with respect to its designated amount, use, and retention of necessary reserve funds. NTIA shall consider any such designated funds to be a part of FirstNet’s total expenses in carrying out its powers, duties, and responsibilities under 47 U.S.C. 1401 et seq. for the fiscal year involved. (c) Determination of fee review. (1) NTIA shall make one of the following determinations annually upon review of FirstNet’s proposed fees: (i) FirstNet’s proposed fees, in aggregate, when combined with any projected non-fee-based income to be received by FirstNet, meet but do not VerDate Sep<11>2014 15:04 Aug 28, 2017 Jkt 241001 exceed FirstNet’s projected total expenses; (ii) FirstNet’s proposed fees, in aggregate, when combined with any projected non-fee-based income to be received by FirstNet, do not meet FirstNet’s projected total expenses; or (iii) FirstNet’s proposed fees, in aggregate, when combined with any projected non-fee-based income to be received by FirstNet, exceed FirstNet’s projected total expenses. (2) Upon making any of the determinations in paragraphs (c)(1)(i) through (iii) of this section, NTIA will communicate its determination in writing to the Chair of the FirstNet Board and the FirstNet Chief Executive Officer. (d) Outcome of determination of fee review. (1) Should NTIA make the determination listed in paragraph (c)(1) of this section, FirstNet may assess the proposed fees. (2) Should NTIA make one of the determinations listed in paragraph (c)(2) or (3) of this section, NTIA will disapprove FirstNet’s proposed fees, and FirstNet may not assess those proposed fees. (e) Revision of proposed fees. Upon a disapproval of FirstNet’s proposed fees as described in paragraph (d)(2) of this section, or upon FirstNet’s determination that it must revise NTIAapproved fees to ensure compliance with 47 U.S.C. 1428(b), FirstNet shall prepare a revised written submission to NTIA, which shall evaluate any proposed fees therein consistent with the requirements in §§ 500.1 through 500.5. Should NTIA disapprove of FirstNet’s proposed fees pursuant to this section, fees approved by NTIA for the prior fiscal year may be assessed by FirstNet during the instant fiscal year until such time that NTIA approves FirstNet’s proposed fees for the instant fiscal year pursuant to paragraph (g) of this section. (f) Communication of NTIA fee approval or disapproval. Approval or disapproval of FirstNet-proposed fees shall be communicated in writing by the Assistant Secretary for Communications and Information and Administrator, National Telecommunications and Information Administration, U.S. Department of Commerce, to the Chair of the FirstNet Board and FirstNet Chief Executive Officer. PO 00000 Frm 00020 Fmt 4700 Sfmt 9990 (g) Process and timing of NTIA fee review. For each fiscal year, FirstNet and NTIA will abide by the following Fee Review Schedule: (1) Prior to assessing fees for a given fiscal year, FirstNet shall submit to NTIA its proposed fees for that given fiscal year and all standard financial documentation that will support its fee projections pursuant to this part. (2) No later than 15 days after FirstNet submits items under paragraph (g)(1) of this section, NTIA shall either notify FirstNet of its approval of the FirstNet proposed fees in accordance with paragraph (d) of this section or submit any questions or requests for clarifications to FirstNet regarding the submission listed in paragraph (g)(1). (3) No later than 15 days after FirstNet receives questions or requests for clarification from NTIA under paragraph (g)(2) of this section, FirstNet shall submit responses to NTIA. (4) No later than 15 days after receiving responses from FirstNet under paragraph (g)(3) of this section, NTIA shall approve or disapprove FirstNet’s proposed fees pursuant to paragraph (d) of this section. (5) Should NTIA disapprove FirstNet’s proposed fees, FirstNet and NTIA will abide by the following Revised Fee Review Schedule until such time as NTIA approves the revised fees: (i) 15 days after disapproval: FirstNet shall submit revised proposed fees to NTIA pursuant to paragraph (e) of this section. (ii) 15 days after revised fees submission to NTIA: NTIA shall submit any questions or requests for clarifications to FirstNet regarding the submission listed in paragraph (g)(5)(i) of this section. (iii) 15 days after NTIA submits questions to FirstNet: FirstNet shall submit responses to the questions listed in paragraph (g)(5)(ii) of this section. (iv) 15 days after NTIA receives responses from FirstNet to NTIA questions, NTIA shall approve or disapprove FirstNet’s revised proposed fees pursuant to paragraph (d) of this section. PARTS 501–549—[RESERVED] Subchapter B—(Parts 550–599) [Reserved] [FR Doc. 2017–18221 Filed 8–28–17; 8:45 am] BILLING CODE 3510–60–P E:\FR\FM\29AUR1.SGM 29AUR1

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[Federal Register Volume 82, Number 166 (Tuesday, August 29, 2017)]
[Rules and Regulations]
[Pages 40958-40962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18221]


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DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

47 CFR Chapter V

[Docket No. 151209999-7323-02]
RIN 0660-AA30


Scope of NTIA's Authority Regarding FirstNet Fees

AGENCY: National Telecommunications and Information Administration, 
U.S. Department of Commerce.

ACTION: Final rule.

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SUMMARY: Congress authorized the First Responder Network Authority 
(FirstNet), an independent authority within the National 
Telecommunications and Information Administration (NTIA), to assess and 
collect, among other funds, three specific types of fees. By law, NTIA 
must review and approve these fees on an annual basis. This final rule 
describes NTIA's overarching scope, boundaries, and guidelines for its 
FirstNet fee review and approval process as mandated by the Middle 
Class Tax Relief and Job Creation Act of 2012 (the Act).

DATES: Effective on August 29, 2017.

FOR FURTHER INFORMATION CONTACT: Patrick Sullivan; Office of Public 
Safety Communications; National Telecommunications and Information 
Administration; U.S. Department of Commerce; 1401 Constitution Avenue 
NW., Washington, DC 20230; psullivan@ntia.doc.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    The Act established FirstNet as an independent authority within 
NTIA charged with ensuring the building, deployment, and operation of 
an interoperable nationwide public safety broadband network 
(Network).\1\ It also requires FirstNet to be self-sustainable.\2\ The 
Act authorizes FirstNet to, among other actions, assess and collect the 
following specific fees: (1) Network user fees, including user fees 
associated with state use of elements of the core network; (2) lease 
fees related to network capacity, pursuant to a covered leasing 
agreement; and (3) fees from entities seeking to access or use any 
equipment or infrastructure constructed or otherwise owned by 
FirstNet.\3\ It requires the total amount of these fees,

[[Page 40959]]

for each fiscal year, to be sufficient, but not to exceed, the amount 
necessary to recoup the total expenses of FirstNet as it carries out 
its duties under the Act.\4\ FirstNet must reinvest amounts received 
from the assessment of these fees for constructing, maintaining, 
operating, or improving the Network.\5\ Finally, as an element of 
NTIA's oversight responsibilities for FirstNet, NTIA must review these 
fees on an annual basis, and such fees may only be assessed if approved 
by NTIA.\6\
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    \1\ See 47 U.S.C. 1426(a)-(b)(1).
    \2\ See 47 U.S.C. 1428(b).
    \3\ See 47 U.S.C. 1428(a); 47 U.S.C. 1442(f).
    \4\ See 47 U.S.C. 1428(b).
    \5\ See 47 U.S.C. 1428(d).
    \6\ See 47 U.S.C. 1428(c).
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    This action: (1) Adopts the tenets of the proposed rule; (2) finds 
that Congress established a statutory framework for NTIA to use to 
determine the reasonableness of FirstNet's proposed fees; (3) 
establishes the scope of NTIA's fee review and approval process in 
fulfillment of the Act's requirements that FirstNet be self-sustainable 
and invest back into the Network; (4) defines the fees subject to NTIA 
review; and (5) details NTIA's fee review and approval methodology, 
timing, and process.
    NTIA published a proposed rule for this action on December 15, 2015 
(80 FR 77592). The preamble to the proposed rule gives more background 
and information on FirstNet's and NTIA's respective duties with regard 
to the Network and related fees and other income, and describes the 
scope and method of NTIA's fee review and approval process, which are 
not repeated here.

II. Response to Comments

    The comment period on the proposed rule ended on January 14, 2016. 
NTIA received eight comments: two from states, one from a local public 
safety organization, one from a telecommunications service provider, 
and four from trade associations. Comments on the proposed rule 
included several similar positions, inquiries both within and outside 
the scope of the rule, and recommendations stemming from the proposed 
rule and its preamble. NTIA has carefully considered each of the 
comments submitted. It has grouped and summarized the comments 
according to common themes and has responded accordingly. All written 
comments can be found at https://www.regulations.gov/document?D=NTIA-2016-0001-0001.

A. Standard of NTIA Fee Review and Approval

    Comment 1: A majority of commenters agreed that NTIA's fee review 
and approval should be scoped to determine whether the amount of 
FirstNet's fees, in aggregate and in combination with any FirstNet non-
fee-based income, is sufficient to cover, but does not exceed the 
amount necessary for, FirstNet's execution of its statutory duties. 
However, one commenter asserted that the Act is not explicit on NTIA's 
standard of review and offers no guidance to NTIA that its fee review 
and approval process should further FirstNet's self-sustainability 
requirements. Thus, the commenter asserted, NTIA's fee review should 
include review and approval of each individual fee FirstNet proposes to 
assess and collect.
    Response: Congress did not direct NTIA to review each individual 
fee FirstNet proposes to assess and collect. The Act mandates that 
``[t]he total amount of the fees assessed for each fiscal year . . . 
shall be sufficient, and shall not exceed the amount necessary, to 
recoup the total expenses of [FirstNet] in carrying out its duties and 
responsibilities [under the Act] for the fiscal year involved,'' \7\ 
and that NTIA review these fees annually.\8\ Thus, NTIA interprets the 
fee review requirement to compel an annual review of the aggregate fees 
assessed by FirstNet and determine whether these fees in toto are 
appropriate to enable FirstNet to recoup its expenses and be self-
sustaining. This interpretation corresponds to the Act's goal of 
creating ``permanent self-funding.'' \9\
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    \7\ 47 U.S.C. 1428(b).
    \8\ See 47 U.S.C. 1428(c) (``NTIA shall review the fees assessed 
under this section on an annual basis, and such fees may only be 
assessed if approved by the NTIA.'').
    \9\ 47 U.S.C. 1428.
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B. Reasonableness of a Proposed Fee

    Comment 1: While several commenters contend Congress did not 
require NTIA to conduct a review of the reasonableness of fees proposed 
by FirstNet, others disagree. One commenter suggests that NTIA misreads 
the statute in not finding a statutory requirement for a reasonableness 
review of each fee given the Act's goal of providing broadband service 
to first responders. Other commenters assert, as a matter of policy, 
that NTIA should seek state input or otherwise make determinations 
about the reasonableness of the fees FirstNet proposes to assess and 
collect.
    Response: Congress did not mandate that NTIA engage in a 
reasonableness review of each fee FirstNet proposes to assess and 
collect.\10\ To ensure that the fees that FirstNet assesses are 
reasonable and not excessive, as noted above, the Act mandates that 
``[t]he total amount of the fees assessed for each fiscal year . . . 
shall be sufficient, and shall not exceed the amount necessary, to 
recoup the total expenses of [FirstNet] in carrying out its duties and 
responsibilities [under the Act] for the fiscal year involved.'' \11\ 
This requirement therefore sets the boundaries of what constitutes 
reasonable fees for FirstNet to assess and collect. Thus, consistent 
with NTIA's fee review and approval scope, NTIA will approve FirstNet's 
fees as reasonable only if FirstNet's fees, in aggregate and in 
combination with any FirstNet non-fee-based income, are sufficient to 
cover, but do not exceed the amount necessary for, FirstNet's execution 
of its statutory duties for each fiscal year.
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    \10\ See 47 U.S.C. 1428(c).
    \11\ 47 U.S.C. 1428(b).
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    Comment 2: One commenter claimed that NTIA should expand its fee 
review to control the activity of FirstNet's Network partner and 
discourage any possible anticompetitive activity associated with access 
to spectrum licensed to FirstNet.
    Response: The Act does not require NTIA to regulate spectrum use; 
rather, the Act assigns decisions on the lawful use of FirstNet's 
spectrum resources to FirstNet. Thus, NTIA's fee review will assess 
whether the Act's self-sustainability goals are being achieved--not how 
FirstNet uses its licensed spectrum.

C. Focus of NTIA Fee Review Methodology

    Comment 1: Commenters generally agreed with NTIA's method of 
reviewing FirstNet's proposed fees. One party sought clarification on 
what total expenses and costs would be included in NTIA's assessment of 
whether FirstNet's fees and non-fee-based income meet but do not exceed 
its total expenses.
    Response: While such expenses and costs were outlined in the 
preamble of the proposed rule, NTIA agrees that defining the term 
``expenses'' in the rule will provide clarity for FirstNet and other 
stakeholders. For this reason, NTIA has amended the rule to include a 
definition of ``expenses'' as the term is discussed in the proposed 
rule

[[Page 40960]]

preamble.\12\ As stated in the final rule below, non-fee-based income 
received by FirstNet means, for purposes of this rule, FirstNet's 
receipt of money from any source, transaction, entity, or any other 
means allowed under 47 U.S.C. 1401 et seq., other than those receipts 
described in the definition of ``fee.''
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    \12\ Further, because the proposed rule preamble, fee review 
methodology, proposed and final rule, and new definition of 
``expenses'' all utilize the term ``standard financial 
documentation,'' NTIA has provided a definition of this term in the 
final rule consistent with the proposed rule preamble to provide 
further clarity to stakeholders.
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    Comment 2: Commenters generally agreed that NTIA should defer to 
FirstNet on any need for reserves, working capital, or similar fund 
categories. One commenter sought a definition of the term ``necessary 
reserves'' for purposes of NTIA's fee review and approval process.
    Response: NTIA agrees that defining the scope of necessary reserve 
funds on which it will defer to FirstNet provides further clarity on 
NTIA's fee review methodology. Accordingly, NTIA has included in the 
final rule a definition of ``necessary reserve funds.'' \13\ Necessary 
reserve funds means, for purposes of this rule, any amount of money 
identified by FirstNet in its standard financial documentation to meet 
expected and unexpected future expenses that may arise in the course of 
FirstNet executing its statutory powers, duties, and responsibilities 
under 47 U.S.C. 1401 et seq., including but not limited to capital 
reserve funds, operating reserve funds, maintenance reserve funds, and 
improvement reserve funds.
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    \13\ This definition reflects the term's use in the proposed 
rule preamble.
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    Comment 3: One commenter proposed that, if NTIA disapproves 
FirstNet's fee proposal, it should clearly articulate the reasons for 
such rejection.
    Response: NTIA agrees that providing guidance on reasons for any 
disapproval of FirstNet's proposed fees will assist FirstNet in 
providing revised fee proposals that may be approved. As with the 
proposed rule, the final rule requires written notification of NTIA's 
determination on FirstNet's proposed fees, and NTIA anticipates 
providing relevant details justifying its decision in that written 
communication.
    Comment 4: One commenter proposed that NTIA establish a timeline 
during which FirstNet must provide its proposed fees and NTIA must 
review and finalize a determination on FirstNet's proposal.
    Response: NTIA agrees that providing a detailed timeline for NTIA's 
fee review and approval process will offer certainty to potential users 
of the Network, FirstNet, and its Network partner. Accordingly, NTIA 
has revised its final rule to include such a timeline for NTIA's fee 
review process. As stated in the final rule, NTIA will abide by the Fee 
Review Schedule as set out in Sec.  500.5(g)(1) through (5).
    Comment 5: One commenter proposed that NTIA should address the 
possibility that FirstNet's fees may not be approved by the start of 
the new fiscal year. The commenter proposed that, should FirstNet's 
fees not be approved by the first day of the fiscal year, FirstNet may 
operate under the prior year's fees until fees for the next fiscal year 
are approved.
    Response: NTIA agrees that providing contingency procedures in the 
event that NTIA disapproves FirstNet's proposed fees for a given fiscal 
year may provide continuation of funding sources for the Network while 
FirstNet revises its fees. Accordingly, NTIA adds a provision to its 
final rule stating that, should NTIA disapprove FirstNet's proposed 
fees, fees approved by NTIA for the prior fiscal year may be assessed 
by FirstNet during the instant fiscal year until such time that NTIA 
approves FirstNet's proposed fees for the instant fiscal year.

D. Fees Subject to NTIA Review and FirstNet Reconsideration Upon NTIA 
Disapproval

    Comment 1: Commenters generally agreed that NTIA is authorized 
under the Act to only consider the three types of fees authorized under 
47 U.S.C. 1428(a). Two commenters sought further review on this when 
there is more clarity regarding the specific types of revenue FirstNet 
will collect, especially with regard to the specific fee structure 
established with FirstNet's Network partner.
    Response: During FirstNet's public procurement process, NTIA and 
stakeholders had sufficient clarity of FirstNet's planned approach to 
evaluate and shape NTIA's proposed fee review process.\14\ Accordingly, 
NTIA determines that its rule includes all provisions necessary to 
execute its statutory duties and does not at this time anticipate a 
need to revise its rule.
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    \14\ For example, Section L.3.3.3 of FirstNet's Request for 
Proposals for the deployment of the Network (RFP) required a 
schedule for nationwide payments to FirstNet. Such payment from 
FirstNet's Network partner, to be made annually, constitute fees 
identified in 47 U.S.C. 1428(a)(2). See FirstNet Nationwide Public 
Safety Broadband Network (NPSBN); Request for Proposals, 
Solicitation Number: D15PS00295E, Department of the Interior (Jan. 
13, 2016).
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E. Income Other Than Fees Is Not Subject to NTIA Fee Review

    Comment 1: Commenters sought clarity on whether NTIA would review 
any charges imposed or income collected by FirstNet or any other party 
beyond those specific fees authorized under 47 U.S.C. 1428(a). One 
commenter urged NTIA to review and approve fees charged by FirstNet's 
Network partner.
    Response: As indicated in the proposed rule, income received by 
FirstNet other than from fees authorized under 47 U.S.C. 1428(a) is not 
directly subject to NTIA review under 47 U.S.C. 1428(b) and (c). NTIA 
has included language further clarifying this determination in the 
final rule.
    However, NTIA will consider such non-fee-based income of FirstNet 
as part of its overall determination of whether the total of the fees 
defined in 47 U.S.C. 1428(a), together with such additional income, 
will be sufficient to recoup FirstNet's total expenses, but not exceed 
the amount necessary to carry out its statutory powers, duties, and 
responsibilities under the Act for the fiscal year involved.

F. Comment Outside the Scope of Rule

    Comment 1: One commenter requested that NTIA, in developing 
requirements for the review of a state's demonstration of the cost 
effectiveness of its state alternative plan to operate the RAN within 
that state pursuant to 47 U.S.C. 1442(e)(3)(D)(ii), restrict its 
assessment to whether the applicant state has sufficient funds to 
maintain the state's RAN.
    Response: NTIA has issued a Notice and Request for Comment on its 
duties with regard to 47 U.S.C. 1442(e)(3)(D) and invites parties to 
review that Notice and any further Notices in that proceeding.\15\
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    \15\ See State Alternative Plan Program (SAPP) and the First 
Responder Network Authority Nationwide Public Safety Broadband 
Network, Notice and Request for Comments, Docket Number: 160706588-
6588-01 (81 FR 46907, Jul. 19, 2016).
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III. Changes From the Proposed Rule

    In response to comments, NTIA included definitions of the terms 
``expenses,'' ``standard financial documentation,'' and ``necessary 
reserves.'' NTIA clarifies that user fees associated with state use of 
elements of the core network, referenced in 47 U.S.C. 1442(f), are user 
fees authorized by 47 U.S.C. 1428(a) and subject to NTIA review. NTIA 
affirms its fee review scope in the context of non-fee-based income as 
that term is defined in the rule. NTIA also provides

[[Page 40961]]

contingency provisions in the event NTIA disapproves FirstNet proposed 
fees and sets a timeline during which FirstNet and NTIA will propose 
and review fees pursuant to 47 U.S.C. 1428. Finally, NTIA makes minor 
clarifying edits in conformance with the Act.

IV. Classification

    The Director of Administration and Chief Financial Officer of the 
National Telecommunications and Information Administration, who is 
performing the non-exclusive duties of the Assistant Secretary for 
Communications and Information, has determined that this final rule is 
consistent with the Act and other applicable law.
    The need to implement these measures in a timely manner constitutes 
good cause under authority contained in 5 U.S.C. 553(d)(3) to waive the 
30-day waiting period and make the rule effective immediately upon 
publication in the Federal Register. It would be impractical to have to 
wait 30 days before the rule is effective because FirstNet requires the 
ability to assess and collect fees in order to ensure the deployment 
and operation of the Network, which will benefit first responders and 
the public at large. In addition, this final rule does not impose any 
requirements or obligations on members of the public.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    It has been determined that the final rule is not major under 5 
U.S.C. 801 et seq.
    The Chief Counsel for Regulations for the Department of Commerce 
certified at the proposed rule stage that this rule does not have a 
significant economic impact on a substantial number of small entities. 
NTIA did not receive any comments on the certification, and the 
underlying analysis for the certification has not changed since the 
publication of the proposed rule.

    Dated: August 23, 2017.
Leonard Bechtel,
Chief Financial Officer and Director of Administration, performing the 
non-exclusive duties of the Assistant Secretary for Communications and 
Information, National Telecommunications and Information 
Administration.

List of Subjects in 47 CFR Part 500

    Broadband, Fees, First Responder Network Authority, National 
Telecommunications and Information Administration, Safety, 
Telecommunications.


0
For the reasons set out in the preamble, the National 
Telecommunications and Information Administration adds 47 CFR chapter V 
to read as follows:

47 CFR Chapter V--The First Responder Network Authority (Parts 500-599)

Subchapter A--National Telecommunications and Information 
Administration Regulations (Parts 500-549)

PART 500--REVIEW AND APPROVAL OF FEES PROPOSED BY THE FIRST 
RESPONDER NETWORK AUTHORITY (FIRSTNET) PARTS 501-549 [RESERVED]

Subchapter B--(Parts 550-599) [Reserved]

Subchapter A--National Telecommunications and Information 
Administration Regulations (Parts 500-549)

PART 500--REVIEW AND APPROVAL OF FEES PROPOSED BY THE FIRST 
RESPONDER NETWORK AUTHORITY (FIRSTNET)

Sec.
500.1 Purpose and scope.
500.2 General definitions.
500.3 NTIA duty to review FirstNet proposed fees.
500.4 Scope of NTIA review of FirstNet proposed fees.
500.5 Methodology of NTIA fee review and approval process.

    Authority: 47 U.S.C. 1401.


Sec.  500.1  Purpose and scope.

    Sections 500.2 through 500.5 of this part implement 47 U.S.C. 
1428(c) as codified pursuant to the Middle Class Tax Relief and Job 
Creation Act of 2012 (Pub. L. 112-96, Title VI, 126 Stat. 256 (codified 
at 47 U.S.C. 1401 et seq.)) (Act), which requires the National 
Telecommunications and Information Administration (NTIA) to annually 
review fees the First Responder Network Authority (FirstNet) proposes 
to assess pursuant to 47 U.S.C. 1428(a).


Sec.  500.2  General definitions.

    Expenses means incursions of costs by FirstNet in the course of 
executing its statutory powers, duties, and responsibilities under 47 
U.S.C. 1401 et seq., including but not limited to:
    (1) Salaries and Benefits;
    (2) Travel;
    (3) Services: Federal Sources;
    (4) Services: Non-Federal Sources;
    (5) Facilities Rental;
    (6) Supplies, Materials, and Printing;
    (7) Equipment; and
    (8) Other Expenses incurred for future contract award, necessary 
reserve funds, including for all other permitted purposes under the 
Act, or other authorized expenses as identified in FirstNet's standard 
financial documentation.
    Fee means:
    (1) FirstNet's receipt of money from:
    (i) Network User Fees, including User Fees Associated with State 
Use of Elements of the Core Network;
    (ii) Lease Fees Related To Network Capacity; or
    (iii) Lease Fees Related To Network Equipment And Infrastructure, 
as those terms are defined under 47 U.S.C. 1428(a) and 47 U.S.C. 
1442(f).
    (2) Income received by FirstNet other than from fees authorized 
under 47 U.S.C. 1428(a) is not directly subject to NTIA review. 
However, NTIA will consider such non-fee-based income as part of its 
determination of whether such income, when combined in aggregate with 
the fees authorized under 47 U.S.C. 1428(a), will be sufficient to 
recoup FirstNet's total expenses, but not exceed the amount necessary 
to carry out its statutory powers, duties, and responsibilities under 
47 U.S.C. 1401 et seq. for the fiscal year involved.
    FirstNet means the First Responder Network Authority.
    Fiscal Year means the 12-month accounting period for the federal 
government, which begins on October 1 of a given year and ends on 
September 30 of the subsequent year.
    Necessary reserve funds means any amount of money identified by 
FirstNet in its standard financial documentation to meet expected and 
unexpected future expenses that may arise in the course of FirstNet 
executing its statutory powers, duties, and responsibilities under 47 
U.S.C. 1401 et seq., including but not limited to capital reserve 
funds, operating reserve funds, maintenance reserve funds, and 
improvement reserve funds.
    Non-fee-based income received by FirstNet means FirstNet's receipt 
of money from any source, transaction, entity, or any other means 
allowed under 47 U.S.C. 1401 et seq., other than those receipts 
described above in the definition of ``fee.''
    NTIA means the National Telecommunications and Information 
Administration.
    NTIA's fee review and approval process means the process by which 
NTIA executes its duties under 47 U.S.C. 1428(c).
    Standard financial documentation means documents developed by 
FirstNet in its ordinary course of business that detail FirstNet's 
current and projected financial condition, which may include but is not 
limited to:
    (1) FirstNet's budget documents produced in the normal course of 
its business;

[[Page 40962]]

    (2) FirstNet's financial statements produced in the normal course 
of its business;
    (3) FirstNet's annual financial audit documents, which detail 
FirstNet's revenue categories and statutory authority for such 
categories;
    (4) FirstNet's annual budget reports submitted as part of the 
President's Budget; and
    (5) FirstNet's annual report to Congress.


Sec.  500.3  NTIA duty to review FirstNet proposed fees.

    As required under 47 U.S.C. 1428(c), NTIA shall exclusively review 
fees, which must be proposed by FirstNet in writing, through NTIA's 
review and approval process conducted on an annual basis.


Sec.  500.4  Scope of NTIA review of FirstNet proposed fees.

    NTIA shall approve FirstNet proposed fees only if such fees, when 
combined with any non-fee-based income projected to be received by 
FirstNet, are sufficient, but do not exceed the amount necessary, to 
recoup FirstNet's projected total expenses in carrying out its powers, 
duties, and responsibilities under 47 U.S.C. 1401 et seq. for the 
fiscal year involved.


Sec.  500.5  Methodology of NTIA fee review and approval process.

    (a) Fee review approach. To execute NTIA's fee review and approval 
process, NTIA shall utilize FirstNet's submission and FirstNet's 
standard financial documentation.
    (b) Deference to FirstNet on necessary reserve funds. In executing 
NTIA's fee review and approval process, NTIA shall defer to FirstNet 
with respect to its designated amount, use, and retention of necessary 
reserve funds. NTIA shall consider any such designated funds to be a 
part of FirstNet's total expenses in carrying out its powers, duties, 
and responsibilities under 47 U.S.C. 1401 et seq. for the fiscal year 
involved.
    (c) Determination of fee review. (1) NTIA shall make one of the 
following determinations annually upon review of FirstNet's proposed 
fees:
    (i) FirstNet's proposed fees, in aggregate, when combined with any 
projected non-fee-based income to be received by FirstNet, meet but do 
not exceed FirstNet's projected total expenses;
    (ii) FirstNet's proposed fees, in aggregate, when combined with any 
projected non-fee-based income to be received by FirstNet, do not meet 
FirstNet's projected total expenses; or
    (iii) FirstNet's proposed fees, in aggregate, when combined with 
any projected non-fee-based income to be received by FirstNet, exceed 
FirstNet's projected total expenses.
    (2) Upon making any of the determinations in paragraphs (c)(1)(i) 
through (iii) of this section, NTIA will communicate its determination 
in writing to the Chair of the FirstNet Board and the FirstNet Chief 
Executive Officer.
    (d) Outcome of determination of fee review. (1) Should NTIA make 
the determination listed in paragraph (c)(1) of this section, FirstNet 
may assess the proposed fees.
    (2) Should NTIA make one of the determinations listed in paragraph 
(c)(2) or (3) of this section, NTIA will disapprove FirstNet's proposed 
fees, and FirstNet may not assess those proposed fees.
    (e) Revision of proposed fees. Upon a disapproval of FirstNet's 
proposed fees as described in paragraph (d)(2) of this section, or upon 
FirstNet's determination that it must revise NTIA-approved fees to 
ensure compliance with 47 U.S.C. 1428(b), FirstNet shall prepare a 
revised written submission to NTIA, which shall evaluate any proposed 
fees therein consistent with the requirements in Sec. Sec.  500.1 
through 500.5. Should NTIA disapprove of FirstNet's proposed fees 
pursuant to this section, fees approved by NTIA for the prior fiscal 
year may be assessed by FirstNet during the instant fiscal year until 
such time that NTIA approves FirstNet's proposed fees for the instant 
fiscal year pursuant to paragraph (g) of this section.
    (f) Communication of NTIA fee approval or disapproval. Approval or 
disapproval of FirstNet-proposed fees shall be communicated in writing 
by the Assistant Secretary for Communications and Information and 
Administrator, National Telecommunications and Information 
Administration, U.S. Department of Commerce, to the Chair of the 
FirstNet Board and FirstNet Chief Executive Officer.
    (g) Process and timing of NTIA fee review. For each fiscal year, 
FirstNet and NTIA will abide by the following Fee Review Schedule:
    (1) Prior to assessing fees for a given fiscal year, FirstNet shall 
submit to NTIA its proposed fees for that given fiscal year and all 
standard financial documentation that will support its fee projections 
pursuant to this part.
    (2) No later than 15 days after FirstNet submits items under 
paragraph (g)(1) of this section, NTIA shall either notify FirstNet of 
its approval of the FirstNet proposed fees in accordance with paragraph 
(d) of this section or submit any questions or requests for 
clarifications to FirstNet regarding the submission listed in paragraph 
(g)(1).
    (3) No later than 15 days after FirstNet receives questions or 
requests for clarification from NTIA under paragraph (g)(2) of this 
section, FirstNet shall submit responses to NTIA.
    (4) No later than 15 days after receiving responses from FirstNet 
under paragraph (g)(3) of this section, NTIA shall approve or 
disapprove FirstNet's proposed fees pursuant to paragraph (d) of this 
section.
    (5) Should NTIA disapprove FirstNet's proposed fees, FirstNet and 
NTIA will abide by the following Revised Fee Review Schedule until such 
time as NTIA approves the revised fees:
    (i) 15 days after disapproval: FirstNet shall submit revised 
proposed fees to NTIA pursuant to paragraph (e) of this section.
    (ii) 15 days after revised fees submission to NTIA: NTIA shall 
submit any questions or requests for clarifications to FirstNet 
regarding the submission listed in paragraph (g)(5)(i) of this section.
    (iii) 15 days after NTIA submits questions to FirstNet: FirstNet 
shall submit responses to the questions listed in paragraph (g)(5)(ii) 
of this section.
    (iv) 15 days after NTIA receives responses from FirstNet to NTIA 
questions, NTIA shall approve or disapprove FirstNet's revised proposed 
fees pursuant to paragraph (d) of this section.

PARTS 501-549--[RESERVED]

Subchapter B--(Parts 550-599) [Reserved]

[FR Doc. 2017-18221 Filed 8-28-17; 8:45 am]
BILLING CODE 3510-60-P

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