Report No. DC-2592 ACTION IN DOCKET CASE April 20, 1994 FURTHER MODIFICATION OF MOBILE SERVICE RULES PROPOSED (GN DOCKET 93-252) The Commission has adopted a Further Notice of Proposed Rule Making in this docket to continue the implementation of Sections 3(n) and 332 of the Communications Act (the Act), as amended by Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993. In the Second Report and Order in this docket, adopted on February 3, 1994, the Commission applied the statutory definitions of "commercial mobile" radio service (CMRS) and "private mobile" radio service (PMRS) to determine the regulatory classification of all existing mobile services and of Personal Communications Services (PCS). In this Further Notice, the Commission proposed to complete the transition to the new regulatory regime envisioned by Congress. The Commission will act on these proposals by the August 10, 1994 deadline established by Congress for adoption of rules implementing the statute. The Further Notice addresses the impact of the statute on technical, operational, and licensing rules for the mobile services, and particularly on the rules affecting former private land mobile services that have been reclassified as CMRS. As required by the Budget Act, the Commission proposed to amend these rules to ensure that competitors in the mobile services marketplace are subject to comparable regulatory requirements and that inconsistencies in the regulation of substantially similar services are eliminated. (over) - 2 - First, the Budget Act requires that rules governing the former private land mobile radio services that are reclassified as CMRS be amended "as may be necessary and practical to assure that licensees in such service are subjected to technical requirements that are comparable to the technical requirements that apply to licensees that are providers of substantially similar common carrier services." The Commission proposed to define "substantially similar" services for this purpose as those services that compete with one another to provide similar service to the end user. It tentatively concluded that (1) "wide-area" specialized mobile radio (SMR) services are substantially similar to cellular telephone service, and (2) private carrier paging services are substantially similar to common carrier paging services. The Commission also asked for comment on whether commercial 220-222 MHz services recently established under Part 90 of the rules are substantially similar to either existing Part 22 services or narrowband PCS; whether traditional SMR service is similar to any Public Land Mobile Service; and whether Business Radio licensees reclassified as CMRS are similar to any existing Part 22 services. Second, the Commission asked for comments on what changes should be made to existing technical and operational rules in Part 90 and Part 22 to ensure that substantially similar services are regulated in a comparable manner. The Commission emphasized that the statute does not compel the rigid application of uniform rules but requires only such changes as are "necessary and practical" to achieve "comparable" rules. The Commission stated that in determining whether existing rules should be eliminated, modified, or retained, it would place particular emphasis on the effect that each of these options would have on competition and the cost likely to be incurred by substantially similar mobile service providers. Applying this analysis to technical rules, the Commission reviewed rules in both Part 90 and Part 22 relating to channel assignment, service area definitions, co-channel and adjacent- channel interference protection, height/power limitations, and interoperability standards for equipment. Specifically, the Further Notice asks if the Commission's existing rules for 800 and 900 MHz SMR services should be revised to facilitate licensing on a wide-area, multi-channel basis comparable to the licensing schemes for cellular and broadband PCS (i.e., the assignment of multiple channels within Commission-defined service areas). The Further Notice also seeks comment on other technical issues, including: (1) whether to conform technical rules for 900 MHz paging systems; (2) possible regional assignment of 220-222 MHz channels; (3) whether Part 22 and Part 90 rules relating to co- channel protection are consistent; and (4) whether to apply cellular-type interoperability standards to other, similar mobile services. In each instance, the Further Notice seeks comment on whether implementing comparable regulation for similar services requires the conforming of existing rules, and if so, how the rules should be conformed. - 3 - The Commission also reviewed operational rules for similar Part 90 and Part 22 services and proposed changes to ensure consistent regulatory treatment. These rules regulate matters such as time to construct, channel loading and area coverage requirements, permissible services, user eligibility, general licensee responsibility and system operation, and equal opportunity in employment. The Commission sought comment on a variety of possible rule modifications, including: (1) a "baseline" construction period of 12 months for all CMRS systems that do not require an extended period for station construction; (2) extended construction periods for wide-area CMRS providers; (3) use of construction and service area coverage requirements in lieu of loading requirements as a means of ensuring efficient spectrum use by CMRS licensees; (4) elimination of user eligibility restrictions for Part 90 CMRS licensees; (5) simplification and conforming of Part 90 and Part 22 station identification procedures; and (6) requiring Part 90 CMRS licensees to comply with Commission EEO obligations that currently apply to Part 22 licensees. Lastly, the Commission proposed new licensing procedures for CMRS applicants in those Part 90 services that were formerly licensed solely on a private basis. Because Section 332 requires CMRS providers to be "treated as common carriers for purposes of [the] Act," all CMRS applications must comply with (1) common carrier licensing procedures, including the public notice requirement in Section 309(b) of the Act, and (2) common carrier eligibility restrictions, including the prohibition on alien ownership in Sections 310(a) and (b) of the Act. To implement these statutory requirements, the Commission proposed to adopt the same application and licensing rules for Part 90 CMRS applicants that currently apply to Part 22 applicants. Thus, all Part 90 CMRS applications would be placed on 30 days public notice and would be subject to petitions to deny, and applicants would be required to provide the same qualifying information as Part 22 applicants. The Commission also sought comment on the possibility of developing a unitary form for mobile services applicants, while proposing interim procedures whereby applicants would continue to use existing forms until the transition to a revised form can be accomplished. (over) - 4 - The Commission also sought comment on other proposals to conform existing licensing rules for CMRS providers, including: (1) conforming Part 90 and Part 22 procedures for determining when applications are mutually exclusive; (2) adopting uniform procedures for amendment of applications and modification of licenses; (3) implementing a uniform 10-year license term for all CMRS licensees; (4) adopting uniform rules regarding requests to transfer or assign CMRS licenses; and (5) revising Part 90 rules relating to operation under special temporary authority. The Commission also proposed rules that would allow Part 90 CMRS licensees to combine CMRS and PMRS offerings under a single license on the same basis as PCS licensees. The Commission stated that the licensing rules proposed in the Further Notice would become effective upon the conclusion of this rule making, except that they would not apply until August 10, 1996 to private paging licensees or to licensees in any other Part 90 service who have been "grandfathered" in that service under the 3- year transition period established by the Budget Act. Action by the Commission April 20, 1994, by Further Notice of Proposed Rulemaking (FCC 94-100). Chairman Hundt, Commissioners Quello and Barrett. - FCC - News Media contact: Rosemary Kimball at (202) 632-5050. Private Radio Bureau contacts: David Furth, Julia Kogan, and Marty Liebman at (202) 634-2443. Common Carrier Bureau contacts: Jay Jackson at (202) 653-5560 and Nancy Boocker at (202) 632-6450.