Requirements for Licensees To Overcome a CMRS Presumption, 7395-7401 [2018-00919]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 83, Number 35 (Wednesday, February 21, 2018)]
[Rules and Regulations]
[Pages 7395-7401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-00919]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 4, 9, and 20

[WT Docket No. 16-240; FCC 17-167]


Requirements for Licensees To Overcome a CMRS Presumption

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission adopts 
rules to harmonize and streamline the Commission's regulations 
regarding the classification of commercial and private mobile radio 
services, primarily by removing provisions in the Commission's rules 
that were outdated or unnecessary. The rules in question list various 
services or subservices that the Commission had classified as ``mobile 
services'' and determined to be ``commercial mobile radio services'' 
(or ``CMRS'') (in accordance with the definitions set forth in the 
Communications Act). These rules also establish in certain instances a 
presumption that some services are private mobile radio services (or 
``PMRS''), and set out a process by which that presumption can be 
rebutted. This action also removes any presumptions about whether 
mobile services are regulated as commercial or private, and instead 
allows licensees to rely on the statutory definitions of those terms to 
identify the nature and regulatory treatment of their mobile services, 
consistent with applicable service rules.

DATES: Effective March 23, 2018.

FOR FURTHER INFORMATION CONTACT: Thomas Reed at [email protected], of 
the Wireless Telecommunications Bureau, Mobility Division, (202) 418-
0531.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order (Order) in WT Docket No. 16-240, FCC 17-167, released on 
December 18, 2017. The complete text of the Order, including all 
Appendices, is available for inspection and copying during normal 
business hours in the FCC Reference Center, 445 12th Street SW, Room 
CY-A157, Washington, DC 20554, or by downloading the text from the 
Commission's website at https://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db1218/FCC-17-167A1.pdf.
    Alternative formats are available for people with disabilities 
(Braille, large print, electronic files, audio format), by sending an 
email to [email protected] or calling the Consumer and Government Affairs 
Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).
    The Commission will send a copy of the Order in a report to be sent 
to Congress and the Government Accountability Office pursuant to the 
Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

I. Report and Order

    1. The Commission adopted Sec. Sec.  20.7 and 20.9 in 1994 as part 
of its implementation of Sections 3(n) and 332 of the Communications 
Act, which Congress amended in the Omnibus Budget Reconciliation Act of 
1993 (OBRA). Congress, seeking to bring mobile services that were 
similar in nature under a consistent regulatory framework, created the 
statutory classifications of ``commercial mobile services'' and 
``private mobile services'' (referred to in Commission rules as 
commercial mobile radio service and private mobile radio service, 
respectively). The Communications Act defines commercial mobile service 
as ``any mobile service . . . that is provided for profit and makes 
interconnected service available (A) to the public or (B) to such 
classes of eligible users as to be effectively available to a 
substantial portion of the public[.]'' ``Private mobile service'' is 
defined in the negative as ``any mobile

[[Page 7396]]

service . . . that is not a commercial mobile service or the functional 
equivalent of a commercial mobile service[.]'' In the 1994 CMRS Second 
Report and Order (GN Docket No. 93-252) (59 FR 18493), the Commission 
mirrored these definitions in Sec.  20.3 of its rules. Thus, Sec.  20.3 
defines ``commercial mobile radio service'' as a for-profit, 
interconnected mobile service that is available to the public; or to 
such classes of eligible users as to be effectively available to a 
substantial portion of the public; or the functional equivalent of such 
a for-profit, interconnected mobile service. ``Private mobile radio 
service'' is defined as a mobile service that is neither a commercial 
mobile radio service nor the functional equivalent of a commercial 
mobile radio service. Similarly, the Commission largely mirrored the 
statutory definition of ``mobile services'' in its definition in the 
rules.
    2. The Commission, in adopting Sec. Sec.  20.7 and 20.9, conducted 
an extensive review of the 1993 OBRA, its legislative history, and 
developments in the regulation of wireless services. The Commission 
noted that Congress ``replaced the common carrier and private radio 
definitions that evolved under the prior version of section 332 of the 
Act with two newly defined categories of mobile services: Commercial 
mobile radio service (CMRS) and private mobile radio service (PMRS),'' 
and ``replaced traditional regulation of mobile services with an 
approach that brings all mobile service providers under a 
comprehensive, consistent regulatory framework and gives the Commission 
flexibility to establish appropriate levels of regulation for mobile 
radio service providers.'' Two Congressional objectives appeared to 
drive these statutory changes: (1) Ensuring that ``similar [mobile] 
services would be subject to consistent regulatory classification[,]'' 
and (2) establishing and administering for CMRS providers ``an 
appropriate level of regulation.''
    3. Applying the purpose of the legislation to include all existing 
mobile services within the ambit of section 332 and in view of the goal 
of achieving regulatory symmetry, the Commission stated that all 
existing mobile services will be included within the ambit of section 
332 as well as all auxiliary services and ancillary fixed 
communications offered by such service providers. In addition, the 
Commission stated that ``unlicensed PCS and part 15 devices will not be 
included under the definition of mobile services,'' but other 
unlicensed services meeting the definition of CMRS, such as the resale 
of CMRS, are mobile services within the meaning of sections 3(n) and 
332 of the Communications Act. Section 20.7 memorialized these and 
listed the existing mobile services.
    4. In addition, applying the statutory criteria to the existing 
common carrier mobile services at the time, the Commission identified 
in Sec.  20.9(a) thirteen specific mobile service bands (or subsets 
thereof) that met the definition of CMRS and would be treated as common 
carrier services. At the time, in the wake of the 1993 OBRA, the list 
served as a clear, easily applied tool for implementing the new CMRS 
classification and creating certainty about which regulatory regime 
would apply to a given license band. The primary reason this approach 
worked well was because many of the service-specific wireless rule 
parts drew clear lines between commercial and private operation in 
terms of service rules, obligations, and usage, and the licensed 
operations within a given service were often limited by rule either to 
common or private carriage. If a licensee of a service band identified 
in Sec.  20.9(a) wished to provide service on a private basis, it would 
have needed to seek a waiver of Sec.  20.9(a). Section 20.9(b) 
identifies three services that are specifically presumed to be CMRS 
(rather than deemed to be regulated as CMRS in Sec.  20.9(a)) and 
prescribes a certification process for overcoming that presumption in 
cases where the provider intends to operate on a PMRS basis.
    5. In crafting the Sec.  20.9(a) approach, the Commission also 
noted that Congress was concerned with the ``disparate regulatory 
treatment'' that had evolved across services, and it observed that 
Congress's intent for the Commission to establish consistent 
regulations was reflected in the statutory requirement that any service 
that amounted to the ``functional equivalent'' of CMRS be treated as 
such, even if it did not meet the strict definition. At the same time, 
the Commission ``anticipat[ed] that very few mobile services that do 
not meet the definition of CMRS will be a close substitute for a 
[CMRS].'' Because the Commission expected that the functional 
equivalency test would be applied only rarely, it decided to create 
another presumption--i.e., to ``presume that a mobile service that does 
not meet the definition of CMRS is a [PMRS].'' To rebut that 
presumption, a challenger to a PMRS claim could file a petition for 
declaratory ruling attempting to show that the service at issue met the 
definition of CMRS or was the functional equivalent of CMRS. Section 
20.9(a)(14) memorializes this presumption and the process for 
overcoming the presumption.
    6. For the services listed in Sec.  20.9(b), the rules state that 
service may be provided on a PMRS basis only if the licensee or 
applicant overcomes the presumption that those services are CMRS 
through a specific certification process. Specifically, Sec.  20.9(b) 
requires licensees of, or applicants for, Personal Communications 
Service (PCS), VHF Public Coast Stations, and Automated Maritime 
Telecommunications Systems (AMTS) that want to operate on a PMRS basis 
to include a certification as part of an authorization, modification, 
transaction, or spectrum leasing application demonstrating that the 
proposed service does not fall within the definition of CMRS. The 
application is placed on public notice for 30 days, during which 
interested parties may file petitions to deny.
    7. While Sec.  20.9's regulatory treatment of certain service bands 
may well have been a reasonable tool when it was adopted, it was based 
on assumptions that no longer apply--namely that a licensee would offer 
a service restricted either to CMRS or PMRS use rather than seek to 
have the flexibility to operate as both. In recent years, the 
Commission's spectrum regulation has turned toward a flexible use model 
that no longer supports this particular treatment embedded in the 
Commission's rules. Section 20.9 was adopted at a time when there were 
far fewer wireless licensees and services than exist today. Dramatic 
changes have occurred in the wireless industry since then. Notably, 
licensees of spectrum bands not identified in Sec.  20.9 are governed 
by service-specific rules that afford entities greater flexibility in 
how operations can be provided and that do not presume them to be CMRS 
or PMRS. Applicants and licensees in these newer services can select 
whether they will be providing common carrier service, non-common 
carrier service, and/or private, internal communications on FCC Form 
601 or in other applications. Moreover, the continuing demand for PMRS 
use of spectrum--including spectrum that providers, in the past, had 
primarily sought for CMRS use--has altered another of the underlying 
assumptions of Sec.  20.9(a), i.e., that the demand to operate services 
referenced in Sec.  20.9 is primarily a demand to offer such services 
on a CMRS basis.
    8. In light of the broadened interest in and need for spectrum 
covered by Sec.  20.9 by an increased diversity of licensees, the 
Commission has sought to provide greater flexibility to applicants,

[[Page 7397]]

licensees, and spectrum lessees \1\ subject to Sec.  20.9, but these 
efforts have nonetheless left some entities with burdens that their 
counterparts in other spectrum bands do not face. In 2005, for example, 
the Commission eliminated the restriction that entities must operate as 
common carriers in order to hold a part 22 license. Despite this 
change, part 22 applicants, licensees, and spectrum lessees are still 
required to seek a waiver of Sec.  20.9(a) if they plan to operate on a 
non-CMRS basis. In recent years, applicants, licensees, and spectrum 
lessees in many services presumed to be CMRS have requested waiver of 
Sec.  20.9(a) as part of an initial authorization, modification, 
transaction, or spectrum leasing application, and the inclusion of the 
waiver request often increases the time it takes the Commission to 
process the application. For example, a paging assignment application 
in which the assignee includes a waiver request must go on public 
notice for a minimum of 14 days. Absent the waiver request, the 
application otherwise might be subject to overnight grant under the 
Commission's processing rules. Similarly, the Sec.  20.9(b) process for 
PCS, VHS Public Coast station services, and AMTS licensees to certify 
that their proposed operations are not commercial is cumbersome and 
time-consuming. Applications that include a Sec.  20.9(b) certification 
often could be granted on an overnight basis absent Sec.  20.9(b)'s 
public notice requirement.
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    \1\ The Commission's references to spectrum lessees also include 
spectrum sublessees.
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    9. To address these inefficiencies, the Commission in July 2016 
released a Notice of Proposed Rulemaking (WT Docket No. 16-240) (NPRM) 
(81 FR 55161) recognizing that Sec.  20.9's approach to the regulatory 
status of certain bands was not the only way to administer the CMRS/
PMRS statutory framework, and seeking comment on whether to eliminate 
this approach by removing Sec.  20.9 from its rules. The Commission 
tentatively concluded that doing so would streamline application 
processing and promote comparable treatment of wireless applicants and 
licensees operating in different spectrum bands. The Commission 
anticipated that this revision of its rules would shorten the 
processing time for a number of applications and eliminate the 
obligation of licensees and applicants in the specified Sec.  20.9 
bands to make a showing--even if brief--regarding their intent to 
operate on a PMRS-basis. It tentatively concluded that this, in turn, 
would lead to more efficient and timely use of spectrum, without 
imposing more regulatory burdens than necessary for the Commission to 
oversee spectrum usage. The Commission sought comment on its tentative 
conclusions and on the costs and benefits of its proposed rule 
elimination. Five parties filed comments and two parties filed reply 
comments in response to the NPRM, all of which generally support 
elimination of Sec.  20.9.
    10. The Commission also sought comment in the NPRM on eliminating 
Sec.  20.7's list of certain services that meet the statutory 
definition of ``mobile service'' as used in sections 3(n) and 332 of 
the Act. This list is under-inclusive--it does not include all the 
services that are, in fact, ``mobile services'' under the statutory 
language and the Sec.  20.3 definition. The Commission tentatively 
concluded that Sec.  20.7 no longer serves a useful purpose and 
stressed that eliminating Sec.  20.7 would not change the definition of 
``mobile service'' contained in Sec.  20.3 of the rules.

II. Streamlining Part 20 of the Commission's Rules

    11. Elimination of Sec.  20.9. The Commission removes Sec.  20.9 
from its rules, eliminating that section's approach for determining 
whether services provided in the specified frequency bands are CMRS. 
There is unanimous support for this rule change, with every commenter 
addressing this issue supportive of the Commission removing Sec.  20.9 
in its entirety. This action is also consistent with the Commission's 
recent steps in the WRS Second Report and Order and Further Notice of 
Proposed Rulemaking, released on August 3, 2017 (WT Docket No. 10-112) 
(82 FR 41580), to harmonize renewal and other regulatory requirements 
across services and to simplify regulatory processes. Going forward, 
licensees and applicants whose services were subject to Sec.  20.9 can 
rely on the relevant definitions in the Communications Act and the 
Commission's rules--which articulate with sufficient clarity what 
constitutes CMRS and PMRS--to identify the nature of their services in 
relevant Commission applications. Akin to their counterparts operating 
in other frequency bands that already accommodate flexible use, these 
entities may provide any service that is consistent with the technical 
rules of the band in which they operate. Licensees will no longer need 
to seek waivers or submit certifications to the Commission before they 
can provide non-commercial services; they need only look to the 
definitions of CMRS and PMRS to determine their regulatory status and 
proceed accordingly.
    12. Eliminating Sec.  20.9 is consistent with the Commission's 
ongoing efforts to facilitate flexible use of spectrum, and will allow 
licensees to respond more quickly to consumer demand and competitive 
forces. Moreover, removing Sec.  20.9 will help eliminate uneven and 
disparate regulation of wireless applicants and licensees in different 
spectrum bands. The Commission finds that the public interest is best 
served by treating similarly situated entities on a more equal, 
comparable basis. As previously discussed, Congress's intent in 
creating the CMRS and PMRS umbrella service definitions was to ensure 
that similarly situated service providers were operating on the same 
regulatory footing, and the Commission aimed to effectuate this intent 
by adopting Sec.  20.9. But as a result of the changes that have 
occurred in the preceding two decades, entities operating in frequency 
bands subject to Sec.  20.9 are not treated the same as their 
competitors in other bands. Rather, if they wish to use the spectrum 
for non-commercial services, this subset of licensees and applicants 
must file requests for waivers of Sec.  20.9(a) or certifications that 
operations are not CMRS under Sec.  20.9(b), and they must endure 
delays associated with the required public notice periods, even though 
the requests and certifications are usually granted on a routine basis. 
Several commenters highlight how elimination of Sec.  20.9 will reduce 
burdens for such entities, enabling them to put their spectrum to 
efficient use more quickly.
    13. The Commission also expects that removing Sec.  20.9 will 
enable service providers to more easily meet the continuing demand for 
PMRS and other non-traditional CMRS operations that serve the public 
interest. The Commission concludes that elimination of Sec.  20.9 will 
help bring beneficial services to businesses, state and local 
governments, and the public safety community, while reducing the 
administrative burdens and processing delays that certain providers of 
these services currently face.
    14. A few commenters caution the Commission that any rule changes 
should not substantively alter CMRS and PMRS licensees' respective 
regulatory obligations or expectations regarding their licenses. 
Nothing here is intended to substantively change the definitions of 
CMRS and PMRS in Sec.  20.3 of the Commission's rules, which generally 
track the statutory definitions and which provide sufficiently clear 
guidance to enable providers to

[[Page 7398]]

continue to determine the nature of their services accurately. Nor does 
the Commission take any action in this Order to change the regulatory 
obligations that attach to CMRS operations \2\ or to PMRS operations. 
Entities may continue to provide both CMRS and PMRS under the same 
license, to the extent allowed by, and subject to, the statutes, rules, 
and requirements that otherwise apply to the particular service at 
issue.
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    \2\ As the Commission explained in the NPRM, such CMRS 
obligations include, but are not limited to, roaming obligations, 
provision of E911 services, obligations pursuant to the 
Communications Assistance for Law Enforcement Act, and compliance 
with hearing aid compatibility requirements.
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    15. As the Commission proposed in the NPRM, applicants and 
licensees that were subject to Sec.  20.9 and that utilize ULS can 
inform Commission staff in initial, modification, transaction, or 
spectrum leasing applications whether they seek authorization to 
provide or use their service for any of the applicable service 
offerings--``common carrier,'' ``non-common carrier,'' and/or 
``private, internal communications''--without any additional showing, 
as applicants and licensees already do in spectrum bands that already 
accommodate flexible use. In other words, they can select ``non-common 
carrier'' and/or ``private, internal communications,'' as applicable, 
without needing to include a waiver request or certification to prove 
that their service is not CMRS. There is no opposition to this approach 
from commenters. Importantly, this will not place any additional 
burdens on applicants and licensees. The Commission's rules already 
permit entities to self-identify their regulatory status but, because 
of Sec.  20.9, entities using spectrum in identified frequency bands 
had to go through the additional administrative processes discussed 
above. Based on the forgoing, the Commission eliminates the need for 
them to do so.
    16. PMRS Presumption and Rebuttal Process. As discussed above, 
Sec.  20.9(a)(14) sets forth a rebuttable presumption that ``[a] mobile 
service that does not meet the definition of commercial mobile radio 
service is presumed to be a private mobile radio service,'' \3\ and it 
sets out the process for rebutting such a presumption. This only acts 
as a presumption, however, with respect to an ``interested party's'' 
challenge to a provider's claim that its service is PMRS, in light of 
the implicit factual assertion that the service does not meet the 
definition of CMRS. If the challenger cannot overcome the presumption 
of the validity of the provider's claim that its service does not, as a 
factual matter, meet the Sec.  20.3 definition of CMRS,\4\ then the 
PMRS status of the operation at issue has been established as a 
definitional matter under the rule and statute, and this challenge will 
fail.\5\
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    \3\ This subsection's reference to the definition of CMRS is 
stated without limitation and therefore includes a service that is 
defined as CMRS under either the ``(a)'' or ``(b)'' paragraphs of 
the Sec.  20.3 definition of CMRS.
    \4\ Note that this definition includes services meeting the 
three elements of the definition's (a) paragraph and services 
meeting the definition's (b) paragraph covering services that are 
the functional equivalent of those satisfying the three elements of 
paragraph (a).
    \5\ 47 CFR 20.3 (defining Private Mobile Radio Service as a 
``mobile service that is neither a commercial mobile radio service 
nor the functional equivalent of a service that meets the definition 
of commercial mobile radio service''); 47 U.S.C. 332(d)(3) (defining 
``private mobile service'' as ``any mobile service . . . that is not 
a commercial mobile service or the functional equivalent of a 
commercial mobile service, as specified by regulation by the 
Commission'').
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    17. In the NPRM, the Commission observed that the rules do not need 
to identify service bands that will be treated as CMRS in order to 
establish a framework within which a provider can claim PMRS status 
(presumptively or otherwise). There are other approaches for 
identifying whether a licensee's proposed or existing operations should 
be classified one way or another, such as allowing the licensee, in the 
first instance, to make that determination with respect to its 
individualized operations, based on the existing definitions of PMRS 
and CMRS. The Commission suggested that changes to its approach of 
using a rebuttable PMRS presumption ``may now be warranted based on the 
development of CMRS and PMRS services and [the Commission's] experience 
with the application of the presumption, such as how parties have used 
it, how often and how successfully it has been challenged, and whether 
it tends to streamline the licensing processes or encumber them.'' The 
Commission observed that Sec.  20.3 of the rules defines CMRS to 
include mobile services that are the ``functional equivalent'' of CMRS, 
and therefore--in combination with other Commission rules and 
processes--ensures that any service that amounts to the ``functional 
equivalent'' of CMRS is treated as such.
    18. The Commission recognized, however, that elimination of Sec.  
20.9 in its entirety would also include deletion of Sec.  
20.9(a)(14)(ii), which enumerates several factors that the Commission 
may consider in determining whether a mobile service is the 
``functional equivalent'' of CMRS in cases where an interested party 
challenges a claim that operations are presumptively classified as 
PMRS. The Commission sought comment on whether retaining Sec.  
20.9(a)(14) or any of its subsections would be useful ``as a practical 
and procedural set of guidelines'' for both mobile service providers 
and the Commission when applying the definitions of CMRS and PMRS, and 
whether it should move this language to Sec.  20.3 or another section 
in part 20. Only two commenters addressed the issue. One argued for the 
removal of the PMRS presumption while the other requested that the 
Commission maintain sufficient clarity in the definition of, and 
requirements for, PMRS and CMRS classifications.
    19. The Commission retains the key aspects of the PMRS presumption 
by revising its definition of Private Mobile Radio Service in Sec.  
20.3 to provide a party with a presumption that it meets that 
definition (as against a challenge that the service is CMRS), if the 
service in question does not meet the three specific elements for 
qualifying as a CMRS under paragraph (a) of the Sec.  20.3 CMRS 
definition. In such case, a challenger would bear the burden of proving 
that the service meets paragraph (b) of the CMRS definition (i.e., that 
it is the functional equivalent of a service that satisfies the 
paragraph (a) elements) and therefore does not qualify as PMRS. While 
the rules thus continue to recognize that a service not meeting the 
specific paragraph (a) elements of the CMRS definition is presumptively 
PMRS, the Commission declines otherwise to carve out the rebuttal 
process from its elimination of section 20.9. The Commission 
anticipates that the CMRS and PMRS definitions in Sec.  20.3 as revised 
in this Order will provide sufficient clarity to enable the Commission, 
licensees and spectrum lessees, and members of the public to 
differentiate between CMRS and PMRS and, relatedly, to assess whether a 
licensee is offering a service that is the ``functional equivalent'' of 
CMRS. At the same time, The Commission has identified various benefits 
of eliminating the use of the scheme embodied in Sec.  20.9, which has 
discouraged the flexible use of spectrum in the identified frequency 
bands and created unnecessary hurdles for a subset of mobile service 
providers.
    20. In sum, the Commission sees no need to retain any of the Sec.  
20.9 provisions about whether service being provided in a particular 
frequency band is commercial or private, or to retain rebuttal 
procedures crafted as part of the Sec.  20.9 approach. Even without 
Sec.  20.9(a)(14), interested parties will continue to have avenues 
available to

[[Page 7399]]

challenge whether an entity's operation is ``non-common carrier'' or 
``private, internal communications.'' Elimination of the Sec.  
20.9(a)(14) process thus neither materially affects the opportunity for 
interested parties to challenge an entity's claim of private status, 
nor alters the distribution of the burden of proof in adjudicating such 
a challenge (i.e., a party challenging a licensee's claim of private 
status bears the burden of presenting sufficient allegations of fact to 
overcome the presumptive validity of that claim). Similarly, the 
exemplary factors for determining whether a service is the ``functional 
equivalent'' of CMRS, discussed in the CMRS Second Report and Order, 
remain probative in potential challenges, even if they are no longer 
memorialized in the Commission's rules. Nonetheless, given concerns 
raised by commenters, and for ease of future reference for parties 
seeking to rely on them as illustrative examples, the Commission moves 
the ``functional equivalent'' exemplary factors to the definition of 
CMRS in Sec.  20.3 and slightly revise the rule to indicate that 
reliance on these examples is permissible but not required. Finally, 
nothing in this action alters the Commission's authority, independent 
of Sec.  20.9, to take enforcement action against a licensee that tries 
to avoid CMRS regulation by misrepresenting that its service is or will 
be operated on a ``non-common carrier'' or ``private, internal 
communications'' basis.
    21. Elimination of Sec.  20.7. Most commenters do not address the 
Commission's proposal to remove Sec.  20.7, which lists certain 
services in various Commission rules parts that meet the statutory 
definition of ``mobile services.'' T-Mobile is the only party that 
raises a concern with removal of a specific subpart of the rule, Sec.  
20.7(h). Section 20.7(h) includes within the list of mobile services 
``[u]nlicensed services meeting the definition of [CMRS] in Sec.  20.3, 
such as the resale of [CMRS], but excluding unlicensed radio frequency 
devices under part 15 of this chapter (including unlicensed personal 
communications service devices).'' T-Mobile argues that this language 
represents an intentional decision by the Commission to exclude part 15 
unlicensed services from the definition of ``mobile service'' in Sec.  
20.7. T-Mobile asks the Commission to either preserve Sec.  20.7(h) or 
incorporate its wording into Sec.  20.3.
    22. The Commission eliminates Sec.  20.7, which provides an 
outdated and incomplete list of some, but not all, services that meet 
the definition of ``mobile service'' as used in the Act. This approach 
is consistent with the Commission's elimination of Sec.  20.9, in favor 
of relying instead on the definition of CMRS in Sec.  20.3. As is the 
case with respect to the definition of CMRS, Sec.  20.3 clearly 
articulates the definition of ``mobile service,'' consistent with the 
statutory definition. Elimination of Sec.  20.7 will thus not affect 
the Commission's understanding or application of the term ``mobile 
service'' in the Act or under the Commission's rules.
    23. Regarding the concern raised by T-Mobile about the regulatory 
categorization of part 15 unlicensed devices, the Commission found, in 
the CMRS Second Report and Order, that the definition of ``mobile 
service'' in the 1993 OBRA includes ``service for which a license is 
required in a personal communications service,'' and therefore 
concluded that ``mobile service'' does not include unlicensed PCS and 
part 15 devices. This action should in no way be construed as affecting 
the Commission's findings in the CMRS Second Report and Order. 
Nonetheless, to ensure that there is no confusion on this issue, the 
Commission revises Sec.  20.3 to make clear that the term ``mobile 
service'' explicitly excludes unlicensed radio frequency devices under 
part 15 of the Commission's rules.
    24. Edits to parts 1, 4, and 9 of the Rules. Consistent with the 
Commission's proposal in the NPRM and its efforts to streamline its 
rules, the Commission makes corrective edits to rule parts that 
errantly cross-reference Sec.  20.9 for the definition of CMRS, rather 
than cross-referencing the definition in Sec.  20.3, the definitions 
section for part 20. Specifically, Sec.  4.3(f) of the rules, which 
defines ``wireless service providers'' that are subject to outage 
reporting requirements, cross-references section 20.9 for a definition 
of CMRS. Section 9.3, related to the provision of interconnected VoIP 
services, similarly defines CMRS as ``Commercial Mobile Radio Service, 
as defined in Sec.  20.9 of this chapter.'' The Commission amends both 
sections to remove the reference to Sec.  20.9 and refer instead to the 
definition of CMRS in Sec.  20.3.
    25. CTIA requested changes to Sec.  1.907's definitions of Private 
Wireless Services and Wireless Telecommunications Services to remove 
cross-references to other CFR rule parts that appear in those 
definitions. The CMRS proceeding has focused on the treatment of 
services defined and regulated as PMRS and CMRS under part 20 of the 
Commission's rules and cross-referenced in several other related rules. 
While the definitions for which CTIA seeks modification are not 
coextensive with the definitions of PMRS and CMRS, the Commission 
sought broad comment in the CMRS proceeding on whether to eliminate the 
itemized, service-by-service approach to classifying wireless services 
that the Commission had superimposed over the statutory definitions, in 
favor of an approach that enabled applicants and licensees themselves 
to classify--under straightforward statutory definitions--what type of 
permitted flexible operations they had chosen to provide (rather than 
forcing them to proceed under a categorical framework that requires 
parties to seek an exception from the Commission when their choice of 
flexible operations will not line up with the correct statutorily-
defined wireless classification that the rules are forcing them into). 
CTIA's proposal for eliminating the categorical list of services 
classified as Wireless Telecommunications Services under the Sec.  
1.907 definitions is virtually indistinguishable in these regards from 
the proposal the Commission made for CMRS, as the elimination of these 
categories from the Wireless Telecommunications Service definition will 
remove the needless inefficiency and reduce the rigidity of such a 
categorical approach, while leaving intact in the rule the critical 
classification benchmark--i.e., the definition of ``telecommunications 
service'' in section 3 of the Act--on which applicants and licensees 
can rely in choosing to provide Wireless Telecommunications Service. In 
contrast, the Commission does not, in the CMRS proceeding, modify the 
Sec.  1.907 definition of Private Wireless Service because this aspect 
of CTIA's proposals addresses a definition in the rules that does not 
expressly invoke a statutory definition to provide a ready benchmark 
that can replace the categories of service that are listed 
categorically as comprising (and defining) the Private Wireless 
Services. Accordingly, CTIA's proposal for this definition, whatever 
the merits, is not part of the regulatory changes that the Commission 
envisioned in this proceeding, and the Commission therefore denies this 
aspect of CTIA's request without prejudice.
    26. Regulatory Status on FCC Forms. In the NPRM, the Commission 
requested comment on whether it would need to make changes to any of 
its forms if it were to eliminate Sec.  20.9. For example, it noted 
that Form 603 (used for assignments and transfers of control) does not 
include an option for an assignee/transferee to indicate a different 
regulatory status for a license

[[Page 7400]]

at issue in the proposed transaction, and suggested that, if the 
Commission eliminated Sec.  20.9, it would need to revise Form 603 to 
permit such a designation. The Commission also sought comment on 
whether the regulatory status options provided on Form 601 and other 
forms--``common carrier,'' ``non-common-carrier,'' and ``private, 
internal communications''--were confusing, and asked whether they 
should be replaced with or altered to include the CMRS/PMRS 
terminology.
    27. Only one party addresses the NPRM questions about forms, 
recommending that the Commission retain the three regulatory status 
categories currently used on Form 601 and other forms--``common 
carrier,'' ``non-common carrier,'' and ``private/internal 
communications.'' The Commission decides not to replace the current 
form designations of ``common carrier,'' ``non-common carrier,'' and 
``private, internal communications'' with the alternatives of CMRS or 
PMRS. The Commission concludes that the change would create a less 
detailed description of regulatory status for certain licensees. 
Further, the current designations, in combination with a filer's 
responses to form questions regarding the type of radio service being 
provided, are used by the Commission to determine, among other things, 
regulatory fees and which filings may need to go on an accepted for 
filing public notice. The Commission also declines to revise Form 601 
or other forms to add an additional question asking an entity to 
distinguish whether it is providing, or plans to provide, ``CMRS'' and/
or ``PMRS.'' Adding this to the Commission's forms and to ULS would be 
costly, without providing the Commission with additional useful 
information beyond what it already obtains from the combination of 
questions about regulatory status and type of radio service being 
provided.
    28. The current ULS Form 601 permits an applicant to select the 
status of its radio service operation as ``common carrier,'' ``non-
common carrier,'' or ``private, internal communications,'' or some 
combination, to the extent applicable. This status must be selected 
when an applicant first files for an authorization. Under this action, 
applicants in services previously covered by Sec.  20.9 will have the 
same flexibility as other licensees that utilize ULS to select the 
appropriate status or statuses, without additional regulatory 
requirements. A licensee also can use Form 601 to modify its regulatory 
status to add an additional status or change the status under which it 
was originally licensed. Applications on Form 601 to modify regulatory 
status are processed as a minor modification to the subject 
authorization.
    29. The current Form 603 does not permit a proposed assignee or 
transferee to make any selection regarding regulatory status. Rather, 
the proposed assignee or transferee receives the license with the 
regulatory status as designated by the assignor or the pre-transfer 
licensee. Because a change to Form 603 would require corresponding 
changes to ULS, including costly reprogramming and additional time to 
implement, the Commission directs staff to explore an interim process 
for permitting a proposed assignee or transferee to modify the 
regulatory status for a license as part of the assignment or transfer 
of control application, perhaps by permitting the applicants to provide 
in an exhibit a request for change. In the interim and as can be done 
under the Commission's current processes, assignees or transferees will 
be able to file a modification on Form 601 to change the regulatory 
status of a license obtained pursuant to a transaction after the 
transaction is consummated.
    30. The current Form 608, Item 9, permits a proposed spectrum 
lessee to indicate at the time of filing an initial spectrum leasing 
application what regulatory status or statuses are applicable to its 
planned operations on the leased spectrum. Once a spectrum leasing 
arrangement is granted or accepted, as applicable, the spectrum lessee 
may file a lease modification on Form 608 to indicate a change in the 
regulatory status as application to its operations under the spectrum 
leasing arrangement.
    31. Other Issues. Several commenters raise issues that were not 
discussed in the NPRM. For example, MSI and NPPD highlight several part 
22 rules that they argue are ripe for reform, and ask the Commission to 
initiate a separate rulemaking to review these and other part 22 rules. 
Those issues are beyond the scope of the CMRS proceeding and the 
Commission does not address them here.

I. Procedural Matters

A. Paperwork Reduction Act Analysis

    32. This document does not contain new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13. In addition, 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, see 44 U.S.C. 
3506(c)(4).

B. Congressional Review Act

    33. The Commission will send a copy of the Order to Congress and 
the Government Accountability Office pursuant to the Congressional 
Review Act.

C. Final Regulatory Flexibility Certification

    34. The Regulatory Flexibility Act of 1980, as amended (RFA), 
requires that an agency prepare a regulatory flexibility analysis for 
notice and comment rulemakings, unless the agency certifies that ``the 
rule will not, if promulgated, have a significant economic impact on a 
substantial number of small entities.'' The Final Regulatory 
Flexibility Certification of the possible economic impact of the rule 
changes contained in the Report and Order was attached as Appendix B of 
the Order.

D. Contact Information

    35. For further information regarding the Order, contact Kathy 
Harris at (202) 418-0609, [email protected], or Thomas Reed at (202) 
418-0531, [email protected]

II. Ordering Clauses

    36. Accordingly, it is ordered, pursuant to sections 1, 2, 4(i), 
4(j), 7, 301, 303, 307, 308, 309, and 332 of the Communications Act of 
1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 157, 301, 303, 
307, 308, 309, and 332, that this report and order in WT Docket No. 16-
240 is adopted.
    37. It is further ordered that the report and order shall be 
effective 30 days after publication of a summary of the report and 
order in the Federal Register.
    38. It is further ordered that part 1 of the Commission's rules, 47 
CFR part 1, part 4 of the Commission's rules, 47 CFR part 4, part 9 of 
the Commission's rules, 47 CFR part 9, and part 20 of the Commission's 
rules, 47 CFR part 20, are amended as specified in Appendix A of the 
Order, effective 30 days after publication in the Federal Register.
    39. It is further ordered that, pursuant to Section 801(a)(1)(A) of 
the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), the Commission 
shall send a copy of the report and order to Congress and to the 
Government Accountability Office.
    40. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of the report and order, including the Final Regulatory 
Flexibility Certification, to

[[Page 7401]]

the Chief Counsel for Advocacy of the Small Business Administration.
    41. It is further ordered that, if no petitions for reconsideration 
or applications for review are timely filed, this proceeding shall be 
terminated and the docket closed.

List of Subjects in 47 CFR Parts 1, 4, 9, and 20

    Commercial mobile services, Disruptions to communications, 
Interconnected voice over internet protocol services, Practice and 
procedure.

Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer, Office of the Secretary.

Final rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR parts 1, 4, 9, and 20 as 
follows:

PART 1--PRACTICE AND PROCEDURE

0
1. The authority citation of part 1 is revised to read as follows:

    Authority:  47 U.S.C. 151, 154(i), 155, 157, 160, 201, 225, 227, 
303, 309, 332, 1403, 1404, 1451, 1452, and 1455, unless otherwise 
noted.


0
2. In Sec.  1.907, revise the definition for ``Wireless 
Telecommunications Services'' to read as follows:


Sec.  1.907  Definitions.

* * * * *
    Wireless Telecommunications Services. Wireless Radio Services, 
whether fixed or mobile, that meet the definition of 
``telecommunications service'' as defined by 47 U.S.C. 153, as amended, 
and are therefore subject to regulation on a common carrier basis.

PART 4--DISRUPTIONS TO COMMUNICATIONS

0
3. The authority citation of part 4 continues to read as follows:

    Authority:  Sections 1, 4(i), 4(j), 4(o), 251(e)(3), 254, 301, 
303(b), 303(g), 303(r), 307, 309(a), 309(j), 316, 332, 403, 615a-1, 
and 615c of Pub. L. 73-416, 48 Stat. 1064, as amended, and section 
706 of Pub. L. 104-104, 110 Stat. 56; 47 U.S.C. 151, 154(i)-(j) & 
(o), 251(e)(3), 254, 301, 303(b), 303(g), 303(r), 307, 309(a), 
309(j), 316, 332, 403, 615a-1, 615c, and 1302, unless otherwise 
noted.

0
4. In Sec.  4.3, revise paragraph (f) to read as follows:


Sec.  4.3  Communications providers covered by the requirements of this 
part.

* * * * *
    (f) Wireless service providers include Commercial Mobile Radio 
Service communications providers that use cellular architecture and 
CMRS paging providers. See Sec.  20.3 of this chapter for the 
definition of Commercial Mobile Radio Service. Also included are 
affiliated and non-affiliated entities that maintain or provide 
communications networks or services used by the provider in offering 
such communications.
* * * * *

PART 9--INTERCONNECTED VOICE OVER INTERNET PROTOCOL SERVICES

0
5. The authority citation of part 9 continues to read as follows:

    Authority: 47 U.S.C. 151, 154(i)-(j), 251(e), 303(r), and 615a-1 
unless otherwise noted.

0
6. In Sec.  9.3, revise the definition for ``CMRS'' to read as follows:


Sec.  9.3  Definitions.

* * * * *
    CMRS. Commercial Mobile Radio Service, as defined in Sec.  20.3 of 
this chapter.
* * * * *

PART 20--COMMERCIAL MOBILE SERVICES

0
7. The authority citation for of part 20 continues to read as follows:

    Authority: 47 U.S.C. Sections 151, 152(a), 154(i), 157, 160, 
201, 214, 222, 251(e), 301, 302, 303(b), 303(r), 307, 307(a), 309, 
309(j)(3), 316, 316(a), 332, 610, 615, 615a, 615b, 615c unless 
otherwise noted.


0
8. In Sec.  20.3:
0
a. In the definition for ``Commercial mobile radio service'':
0
i. In paragraph (b), remove ``of this section'' and add ``of this 
definition'' in its place; and
0
ii. Add paragraphs (c) and (d); and
0
b. Revise the introductory text of the definition for ``Private Mobile 
Radio Service''.
    The additions and revision read as follows:


Sec.  20.3  Definitions.

* * * * *
    Commercial mobile radio service. * * *
    (c) A variety of factors may be evaluated to make a determination 
whether the mobile service in question is the functional equivalent of 
a commercial mobile radio service, including: Consumer demand for the 
service to determine whether the service is closely substitutable for a 
commercial mobile radio service; whether changes in price for the 
service under examination, or for the comparable commercial mobile 
radio service, would prompt customers to change from one service to the 
other; and market research information identifying the targeted market 
for the service under review.
    (d) Unlicensed radio frequency devices under part 15 of this 
chapter are excluded from this definition of Commercial mobile radio 
service.
* * * * *
    Private mobile radio service. A mobile service that meets neither 
the paragraph (a) nor paragraph (b) definitions of commercial mobile 
radio service set forth in this section. A mobile service that does not 
meet the paragraph (a) definition of commercial mobile radio service in 
this section is presumed to be a private mobile radio service. Private 
mobile radio service includes the following:
* * * * *


Sec.  20.7  [Removed and Reserved]

0
9. Section 20.7 is removed and reserved.


Sec.  20.9  [Removed and Reserved]

0
10. Section 20.9 is removed and reserved.

[FR Doc. 2018-00919 Filed 2-20-18; 8:45 am]
 BILLING CODE 6712-01-P