Commission Document

PUBLIC NOTICE

Federal Communications Commission

News Media Information 202 / 418-0500

445 12th St., S.W.

Internet: http://www.fcc.gov

Washington, D.C. 20554

TTY: 1-888-835-5322

DA 12-202

February 16, 2012

WIRELESS TELECOMMUNICATIONS BUREAU SEEKS COMMENT ON PETITION FOR

DECLARATORY RULING INTERPRETING THE DEFINITION OF “COMMERCIAL

MOBILE RADIO SERVICES” AS APPLIED TO NEXTG NETWORKS OF CALIFORNIA,

INC.’S DISTRIBUTED ANTENNA SYSTEMS AND OTHER “SMALL-CELL” SOLUTIONS

WT Docket No. 12-37

Comments Due: April 2, 2012
Reply Comments Due: May 2, 2012

On December 21, 2011, NextG Networks of California, Inc. (Petitioner), a subsidiary of NextG
Networks, Inc., filed a Petition for Declaratory Ruling (Petition)1 asking the Federal Communications
Commission (Commission) to interpret Section 20.3 of the Commission’s rules2 in response to a referral
from the Superior Court of Arizona, County of Maricopa.3 In the state court litigation, Petitioner is
challenging the City of Scottsdale, Arizona’s authority to impose fees on Petitioner for use of public
rights-of-way. Petitioner asks the Commission to find that it is not a provider of “commercial mobile
radio service” (CMRS) as defined in Section 20.3 of the Commission’s rules.4 Such a finding could
potentially exempt Petitioner from local fees under Arizona law.5
The Commission has defined CMRS in Section 20.3 of the rules as: “A mobile service that is:
(a)(1) provided for profit, i.e., with the intent of receiving compensation or monetary gain; (2) An
interconnected service; and (3) Available to the public, or to such classes of eligible users as to be
effectively available to a substantial portion of the public; or (b) The functional equivalent of such a
mobile service described in paragraph (a) of this section.”6 Section 332(d)(1) of the Communications Act


1Petition For Declaratory Ruling, NextG Networks of California, filed Dec. 21, 2011 (Petition).
247 C.F.R. § 20.3.
3See Petition at 1, 4; NextG Networks of California, Inc. v. City of Scottsdale, Case No. CV2010-000832, Order on
Motion to Stay Pursuant to the Primary Jurisdiction Doctrine (Nov. 21, 2011).
447 C.F.R. § 20.3
5See Petition at 1, 4-5; Ariz. Rev. Stat. §§ 9-581 & 9-582.
647 C.F.R. § 20.3.
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of 1934, as amended, similarly defines a “commercial mobile service” as “any mobile service (as defined
in Section 153 of this title) that is provided for profit and makes interconnected service available (A) to
the public or (B) to such classes of eligible users as to be effectively available to a substantial portion of
the public, as specified by regulation by the Commission.”7
Petitioner states that it provides telecommunications service via Distributed Antenna Systems
(DAS) and other “small-cell solutions.” Petitioner states that in operating these systems, it transmits
signals for its wireless carrier customers along fiber optic networks between equipment used by the
carriers to receive and transmit radio signals and the carriers’ networks.8 Petitioner argues that, because it
only transports received wireless signals over its own wired network, it does not provide “commercial
mobile radio service” as defined under the Commission’s rules.9 Petitioner also states that it has received
a certificate of convenience and necessity from the Arizona Public Utilities Commission to provide its
services in the State of Arizona.10
The Wireless Telecommunications Bureau seeks comment on the Petition.

Procedural Matters

Interested parties may file comments on or before April 2, 2012, and reply comments on or before
May 2, 2012. All filings should refer to Docket No. 12-37. Comments may be filed using (1) the
Commission’s Electronic Comment Filing System (ECFS), (2) the Federal Government’s eRulemaking
Portal, or (3) by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63
Fed. Reg. 24121 (1998).
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Electronic Filers: Comments may be filed electronically using the Internet by accessing the
ECFS: http://fjallfoss.fcc.gov/ecfs2/ or the Federal eRulemaking Portal:
http://www.regulations.gov.
§
Paper Filers: Parties who choose to file by paper must file an original and four copies of each
filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier,
or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the
Commission’s Secretary, Office of the Secretary, Federal Communications Commission.
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All hand-delivered or messenger-delivered paper filings for the Commission’s
Secretary must be delivered to FCC Headquarters at 445 12th St., SW, Room TW-


747 U.S.C. § 322(d)(1). “The term ‘mobile service’ means a radio communication service carried on between
mobile stations or receivers and land stations, and by mobile stations communicating among themselves, and
includes (A) both one-way and two-way radio communication services, (B) a mobile service which provides a
regularly interacting group of base, mobile, portable, and associated control and relay stations (whether licensed on
an individual, cooperative, or multiple basis) for private one-way or two-way land mobile radio communications by
eligible users over designated areas of operation, and (C) any service for which a license is required in a personal
communications service established pursuant to the proceeding entitled ‘Amendment to the Commission's Rules to
Establish New Personal Communications Services’ (GEN Docket No. 90-314; ET Docket No. 92-100), or any
successor proceeding.” 47 U.S.C. § 153(33).
8See Petition at 1-2.
9Id.
10Id. at 13.
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A325, Washington, DC 20554. All hand deliveries must be held together with rubber
bands or fasteners. Any envelopes must be disposed of before entering the building.
The filing hours are 8:00 a.m. to 7:00 p.m.
§
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority
Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
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U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445
12th Street, SW, Washington DC 20554.
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People with Disabilities: To request materials in accessible formats for people with
disabilities (braille, large print, electronic files, audio format), send an e-mail to
fcc504@fcc.gov or call the Consumer & Government Affairs Bureau at 202-418-
0530 (Voice), 202-418-0432 (TTY).
All filings must be addressed to the Commission’s Secretary, Marlene H. Dortch, Office of the Secretary,
Federal Communications Commission, 445 12th Street, S.W., Washington, D.C. 20554. Documents in
Docket No. 12-37, including a copy of the petition, are available for public inspection and copying during
business hours at the FCC Reference Information Center, Portals II, 445 12th Street, S.W., Room CY-
A257, Washington D.C. 20554. The documents may also be purchased from BCPI, telephone (202) 488-
5300, facsimile (202) 488-5563, TTY (202) 488-5562, e-mail fcc@bcpiweb.com.
The proceeding this Notice initiates shall be treated as a “permit-but-disclose” proceeding in
accordance with the Commission’s ex parte rules.11 Persons making ex parte presentations must file a
copy of any written presentation or memorandum summarizing any oral presentation within two business
days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons
making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1)
list all persons attending or otherwise participating in the meeting at which the ex parte presentation was
made, and (2) summarize all data presented and arguments made during the presentation. If the
presentation consisted in whole or in part of the presentation of data or arguments already reflected in the
presenter’s written comments, memoranda or other filings in the proceeding, the presenter may provide
citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying
the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of
summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte
meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b).
In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of
electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations,
and all attachments thereto, must be filed through the electronic comment filing system available for that
proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in
this proceeding should familiarize themselves with the Commission’s ex parte rules.
For further information about this Public Notice, please contact Amy Brett at 202-418-2703 or
Amy.Brett@fcc.gov.


1147 C.F.R. §§ 1.1200 et seq.
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