[Federal Register Volume 59, Number 103 (Tuesday, May 31, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13311]


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[Federal Register: May 31, 1994]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 20, 22, and 90

[GN Docket No. 93-252; FCC 94-100]

 

Implementation of Sections 3(n) and 332 of the Communications 
Act--Regulatory Treatment of Mobile Services

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: The Commission has adopted a Further Notice of Proposed Rule 
Making (Further Notice) in response to Congress mandate directing the 
agency to implement sections 3(n) and 332 of the Communications Act of 
1934 as amended by title VI, section 6002(b) of the Omnibus Budget 
Reconciliation Act of 1993, Public Law 103-66, 107 Stat. 312, 392 
(Budget Act). The intended effect of this Further Notice is to 
implement this legislation by soliciting comment on conforming the 
Commission's technical, operational, and licensing rules for commercial 
mobile radio service providers, including rules for commercial mobile 
radio service providers, including licensees in services formerly 
classified as private.

DATES: Comments must be filed on or before June 20, 1994, and reply 
comments must be filed on or before July 11, 1994.

ADDRESSES: Federal Communications Commission, 1919 M Street, NW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Private Radio Bureau Contacts: David 
Furth or Kathleen O'Brien Ham, (202) 634-2443. Common Carrier Bureau 
Contacts: Nancy Boocker (202) 632-6450, or Jay Jackson (202) 653-5560.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Further Notice of Proposed Rule Making, GN Docket No. 93-252, FCC 94-
100, adopted April 20, 1994, and released the May 20, 1994 (Further 
Notice). The full text of the Notice is available for inspection and 
copying during normal business hours in the FCC Public Reference 
Center, Room 239 1919 M Street, NW., Washington, DC. The complete text 
may be purchased from the Commission's copy contractor, International 
Transcription Service, Inc., 2100 M St., NW., suite 140, Washington DC 
20037, (202) 857-3800.

Summary of Notice of Proposed Rule Making

A. Introduction and Overview

    1. On February 3, 1994, the Commission adopted a Second Report and 
Order in this proceeding that implemented the basic provisions 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. 
Second Report and Order, Implementation of sections 3(n) and 332 of the 
Communications Act. Regulatory Treatment of Mobile Services, GN Docket 
No. 93-252, 9 FCC Red 1411, 59 FR 18493 (April 19, 1994) (Second Report 
and Order). This Further Notice proposes further modifications to the 
Commission's existing mobile services rules that are necessary to 
complete the transition to the new regulatory regime envisioned by 
Congress and establish regulatory symmetry in the regulation of mobile 
services.
    2. Specifically, the Further Notice addresses the impact of the 
amended statute on technical, operational, and licensing rules for the 
mobile services, and particularly on the rules affecting those former 
private land mobile services that have been reclassified as 
``commercial mobile'' radio services (CMRS) by the Second Report and 
Order. As required by the Budget Act, the Commission proposes to amend 
these rules to ensure that competitors in the mobile services 
marketplace are subject to comparable regulatory requirements and that 
inconsistencies in our regulation of substantially similar services are 
eliminated. The Commission will act on these proposals by the August 
10, 1994 deadline established by Congress for adoption of rules 
implementing the statute.

B. Comparison of Reclassified Part 90 Services and ``Substantially 
Similar'' Common Carrier Services

    3. The statute directs the Commission to ensure that private land 
mobile licensees who are reclassified as CMRs providers are subject to 
technical requirements comparable to those that apply to providers of 
``substantially similar'' common carrier services. Therefore, the 
Further Notice first addresses to the issue of what is meant by 
``substantially similar'' services for this purpose. Because one of the 
principal goals of the Budget Act is regulatory parity within product 
markets and geographic markets for services that compete with each 
other, the Commission proposes to base the determination of substantial 
similarity primarily on whether the CMRS providers in question compete 
to meet similar customer demands for services.
    4. The Commission seeks specific comment on the degree to which 
Specialized Mobile Radio (SMR), 220-222 MHz service, Business Radio, 
and private paging--the four categories of private land mobile service 
potentially subject to reclassification as CMRS--are ``substantially 
similar'' to any part 22 mobile service.
    5. SMR: The Further Notice states that ``enhanced'' wide-area SMR 
service and cellular service could be viewed as substantially similar, 
but that traditional SMR service may be more analogous to traditional 
common carrier radiotelephone service.
    6. 220-222 MHz Service: The Commission states that it appears 
unlikely that 220 MHz licensees would offer services similar to 
cellular or broadband PCS, but seeks comment on whether 220 MHz service 
could be competitive alternative to other existing common carrier 
services or narrowband PCS.
    7. Business Radio: The Commission seeks comment on whether CMRS 
licensees on Business Radio channels should be considered to provide 
service that is substantially similar to services provided by part 22 
licensees, particularly in light of the fact that Business Radio 
frequencies are licensed on a non-exclusive basis and therefore must be 
shared by multiple licensees.
    8. Paging: The Commission tentatively concludes that private and 
common carrier paging should be deemed substantially similar for 
statutory purposes. The Further Notice requests comment, however, on 
whether private paging licensees using shared frequencies below 900 MHz 
are in providing service competitive with common carrier paging 
service.

C. Technical and Operational Rules

    9. Next, the Further Notice seeks comment on how to ensure that 
technical and operational rules for reclassified part 90 licensees and 
carriers and other service providers offering substantially similar 
common carrier services are ``comparable.'' The Commission proposes to 
identify and eliminate those differences in existing technical and 
operational rules that would otherwise result in inconsistent 
regulation of substantially similar CMRS services. In those instances 
where modification of existing technical and operational rules is 
required, the Further Notice seeks comment on which of the following 
alternatives would best promote competition and ensure regulatory 
symmetry: (1) Extension of the part 22 rule to part 90 CMRS services; 
(2) extension of the part 90 rule to part 22 services; or (3) 
modification of both part 22 and part 90. The Future Notice also seeks 
comment on the degree to which technical and operational rules for 
existing mobile services should be conformed to technical and 
operational rules for Personal Communications Service (PCS).
    10. Channel Assignment and Service Area. The Commission seeks 
comment on whether the channel assignment rules for 800 and 900 MHz SMR 
should be revised to facilitate licensing on a wide-area, multi-channel 
basis comparable to licensing of cellular and broadband PCS spectrum. 
The Commission also seeks comment on how to ensure that rule revisions 
intended to make wide-area SMR service more comparable to other wide-
area CMRS offerings do not adversely affect traditional SMR systems 
designed primarily to provide dispatch service to small groups of 
customers. The Further Notice states that a possible alternative in the 
800 MHz band would be to implement optional wide-area licensing 
procedures similar to the ``Expanded Mobile Service Provider'' (EMSP) 
proposal set forth in the Commission's Notice of Proposed Rule Making 
in PR Docket No. 93-144, 8 FCC Rcd 3950, 58 FR 33062 (June 15, 1993). 
Because of recent licensing activity in this band, however, the Further 
Notice seeks comment on whether sufficient spectrum is available to 
support multi-channel licensing on an MTA-wide basis, or whether the 
Commission's objectives could be more practically achieved by allowing 
800 MHz licensees to establish and operate in self-defined service 
areas. In the 900 MHz band, which is not heavily licensed, the 
Commission seeks comment on whether to proceed with its ``900 MHz Phase 
II'' proposal in PR Docket No. 89-553. See First Report and Order and 
Further Notice of Proposed Rule Making, 8 FCC Rcd 1469, 58 FR 12176 
(March 3, 1993).
    11. The Commission also seeks comment on channel assignment and 
service area definitions applicable to non-SMR Part 90 services subject 
to reclassification as CMRS. The Commission notes that in Business 
Radio and paging services where channels are shared, it could be 
difficult to superimpose a system of exclusive channel assignments. 
Commenters are asked whether the shared use of channels in such 
services should be limited as a means of promoting competition. In the 
case of 900 MHz paging, the Commission observes that the rules for 
assigning common carrier and private paging frequencies are already 
very similar, but seeks comment on whether additional conforming of the 
rules is required. The Further Notice also asks commenters to address 
whether future licensing of paging could be based on Commission-defined 
service areas similar to those used in narrowband PCS. Finally, the 
Commission seeks comment on whether 220 MHz systems should be licensed 
on a regional as well as a local and nationwide basis.
    12. Co-Channel Interference Criteria. The Commission seeks comment 
on whether the statutory goal of comparable technical regulation for 
substantially similar services requires revision of co-channel 
interference criteria for any mobile service. Commenters are 
specifically invited to provide information on the type and level of 
potential costs to licensees that would result from modifying these 
criteria. The Commission notes, however, that a cautious approach to 
rule revisions in this area does not imply that no changes to co-
channel interference rules can be justified. For example, if the 
Commission proceeds with proposals to establish wide-area SMR service, 
the Further Notice seeks comment on whether wide-area licensees should 
be subject to restrictions on co-channel station separation or 
interference other than at the borders of their service areas.
    13. Adjacent Channel Interference Criteria. To protect against 
adjacent channel interference, most mobile radio services operates 
under ``emission mask'' rules that restrict transmitter emissions on a 
range of frequencies removed from the licensee's assigned frequency. 
These rules typically vary depending upon the bandwidth and spacing of 
channels in each particular service. The Further Notice seeks comment 
on whether existing emission mask rules are consistent in their 
application to substantially similar services. Because specific 
emission limitations are dependent on such service-specific factors as 
bandwidth, channel spacing, and the likelihood that different licensees 
will operate on adjacent channels, the Commission notes that 
substantial changes to these rules may not be necessary or practical.
    14. Antenna Height and Transmitter Power Limits. The Commission 
tentatively concludes that substantially similar mobile services should 
operate under complete restrictions on antenna height and transmitter 
power, but that height and power rules should also encourage technical 
flexibility and allow licensees to serve diverse customer needs 
wherever possible. For example, to the extent that wide-area SMR is 
considered substantially similar to cellular service, it could be 
argued that SMR licensees should be required to comply with power 
limits comparable to those prescribed for cellular licensees. In the 
case of traditional SMR service, which is not substantially similar to 
cellular service, existing height and power limits for each service 
should arguably be retained. A third alternative that could be applied 
to wide-area SMR systems and cellular systems would be to limit station 
power at the licensee's service area border, but give licensees greater 
flexibility over station power within the interior portions of their 
service areas. The Further Notice seeks comment on the feasibility and 
practical effect of these alternatives.
    15. The Commission also seeks comment on whether height and power 
limits in other Part 90 services should be conformed to those of 
substantially similar Part 22 services. The Commission observes that on 
Part 90 lower band frequencies that are shared, it may not be practical 
to adopt the typically higher power limits that apply to Public Land 
Mobile Service licensees on exclusive channels. In the case of 220 MHz 
service, which is licensed on an exclusive basis, the Commission seeks 
comment on whether it is necessary to revise our 220 MHz height and 
power rules and what the practical consequences would be of doing so. 
The Commission observes that Part 90 and Part 22 power limits for 900 
MHz paging systems are already highly similar, but seeks comment on 
whether non-nationwide licensees at 929-930 MHz should be allowed to 
operate at up to 3500 watts within their existing service areas, as 
non-nationwide paging systems under Part 22 are currently allowed to 
do.
    16. The Further Notice also seeks comment on alternatives affecting 
power limitations on mobile units. While Part 90 systems seeking to 
compete with cellular are likely to use similar low-power technology to 
provide lightweight and easily portable mobiles to the end user, users 
of traditional Part 90 systems may continue to need higher-power 
mobiles in order to obtain effective service. Aside from any action to 
conform existing rules, however, the Further Notice states that all 
mobiles must comply with power limits dictated by applicable radio 
frequency radiation standards, regardless of the service in which they 
are used. The Commission therefore proposes to apply the 1992 IEEE/ANSI 
standard to all CMRS and PMRS mobiles, as proposed in the Notice of 
Proposed Rule Making on this issue in ET Docket No. 93-62, 8 FCC Rcd 
2849, 58 FR 19393 (April 8, 1993).
    17. Modulation and Emission Requirements. The Further Notice seeks 
comment on whether there should be any restriction on modulation or 
emissions so long as licensees comply with other technical requirements 
designed to guard against co-channel interference, adjacent channel 
interference, and similar problems. While proposing to allow licensees 
greater flexibility in this area, however, the Commission does not 
propose to modify or eliminate the requirement that cellular licensees 
provide analog service to customers with analog equipment. In addition, 
the Further Notice tentatively concludes that where services operate on 
shared frequencies, existing emission restrictions should be retained 
in order to prevent incompatible uses.
    18. Interoperability. The Commission seeks comment on whether Part 
90 CMRS licensees should be subject to mandatory interoperability 
requirements similar to those applicable to cellular licensees. For 
example, if the Commission determines that wide-area SMR service is 
substantially similar to cellular service, the Commission must then 
decide whether to adopt rules ensuring that SMR customers have access 
to compatible equipment and the ability to use that equipment on any 
wide-area SMR system. The Further Notice asks commenters to address the 
costs and benefits of the following options: (1) Requiring 
interoperability among all classes of CMRS equipment; (2) requiring 
interoperability of equipment used to provide the same type or class of 
CMRS service; or (3) maintaining the status quo.
    19. Construction Period and Coverage Requirements. The Further 
Notice proposes a uniform ``baseline'' construction period of 12 months 
for all CMRS licensees whose systems do not require an unusually long 
time to construct. This approach would apply, inter alia, to 
conventional and trunked SMR, paging, Business Radio, and local 220 MHz 
systems. In addition, although such a step is not required to achieve 
comparable regulation of CMRS, the Commission seeks comment on whether 
the 12-month construction period should also be extended to PMRS 
licensees under Part 90. The Commission further proposes to require 
that licensees not only complete construction but also commence service 
by the end of this period, which would be defined as providing service 
to at least two third parties unaffiliated with the licensee.
    20. With respect to Part 90 CMRS systems that require more than 12 
months to construct (e.g., wide-area SMR), the Commission seeks comment 
on whether to require licensees to apply for extended implementation or 
adopt longer construction periods that apply automatically to such 
systems. The Commission tentatively concludes that the 10-year 
construction period (with interim benchmarks) is viable for licensing 
of future 900 MHz SMR systems, but that a five-year build out period 
may be more practical for 800 MHz licensing. The Commission also seeks 
comment on whether to extend the construction period applicable to 
wide-area paging systems.
    21. Loading Requirements. The Further Notice seeks comment on the 
degree to which loading standards should be used as a means of ensuring 
efficient spectrum use by CMRS licensees. In general, Part 22 services 
area not subject to loading requirements, and the Commission has 
previously concluded in the case of PCS that coverage requirements and 
construction timetables are sufficient to ensure efficient use of 
spectrum. The Commission tentatively concludes that certain loading 
requirements should also be eliminated or modified in the case of SMR 
services. The Commission also seeks comment on whether alternatives to 
loading should be adopted to protect against spectrum warehousing, 
e.g., requiring that licensees construct and provide service on 
existing channels before they can receive additional frequencies in the 
same area.
    22. User Eligibility. Because section 332(c)(1)(A) of the Act 
subjects all CMRS providers to the requirements of sections 201 and 
202, Part 90 licensees who are reclassified as CMRS must offer service 
to the public on a nondiscriminatory basis. In light of the statute, 
the Commission proposes to eliminate restrictions on user eligibility 
for CMRS providers in Part 90 services so that CMRS licensees in Part 
90 services may serve the public without restriction.
    23. Permissible Uses. Although the rules of permissible uses of 
Part 90 and Part 22 systems are similar in some respects (e.g., 
restrictions on fixed base-to-base communciations), some of these rules 
appear to require modification to conform to the new regulatory 
structure and ensure comparable regulatory treatment of similar 
services. For example, the Commission tentatively proposes to eliminate 
the prohibition on provision of common carrier service by Part 90 
licensees as it applies to SMR, 220 MHz, Business Radio, and Part 90 
paging services. The Commission also proposes to eliminate restrictions 
on the purpose and duration of communications on Part 90 systems that 
are not imposed on Part 22 licensees, except that some restrictions 
would be retained in the case of systems on shared spectrum to assure 
that all cochannel licensees have the maximum possible access to air 
time.
    24. Station Identification. Station identification rules are often 
necessary to ensure that both the Commission and other spectrum users 
can identify sources of interference. In some services, however, (e.g., 
cellular, 220 MHz nationwide service) licensees operating on exclusion 
channel blocks are exempt from station identification requirements 
because they can be readily identified by other means. The Commission 
seeks comment on whether station identification requirements can be 
eliminated in other services on similar grounds. In addition, where the 
Commission determines that station identification continues to be 
necessary, the Further Notice proposes to adopt a general rule that 
CMRS licensees operating multiple station systems may use a single call 
sign on a system-wide basis.
    25. General Licensee Obligations. Both Part 22 and Part 90 contain 
a variety of rules describing the general operational responsibilities 
of the licensee, including rules on licensee management and control of 
station facilities, posting of station licenses, station inspections, 
and responses to official communications. Because these rules generally 
appear similar, the Further Notice proposes to retain them with only 
minor modifications to eliminate inconsistency and redundancy.
    26. Equal Employment Opportunities. Under Part 22, all common 
carrier licensees and permittees are subject to the Commission's equal 
employment opportunity (EEO) rules. The Commission proposes to apply 
these same EEO requirements to Part 90 CMRS licensees.

D. CMRS Spectrum Aggregation Limit

    27. The Further Notice seeks comment on whether to adopt a cap on 
the amount of CMRS spectrum that licensees may aggregate in a given 
geographic area. Although restrictions have been adopted on aggregation 
of spectrum in specific services, such as PCS, there is no general cap 
on the amount of spectrum that an entity may use to provide CMRS. The 
Commission is concerned that licensees with the ability to acquire 
large amounts of CMRS spectrum in a given area could acquire excessive 
market power by potentially reducing the numbers of competing 
providers.
    28. The Further Notice seeks comment on whether all CMRS services 
should be treated as part of a single competitive product market or as 
consisting of several discrete markets. If all CMRS services are part 
of a single competitive product market, a spectrum cap applicable to 
all CMRS could arguably guard against the excercise of undue market 
power in this single market. Even if CMRS services do not constitute a 
single market, a spectrum cap may be justified if a licensee with 
sufficient spectrum in a sub-market could, as a result of its spectrum 
holdings, excercise market power against other CMRS providers.
    29. Assuming the Commission concludes that some form of CMRS 
spectrum cap should be adopted, the Further Notice tentatively 
concludes that the 40 MHz limit on broadband PCS aggregation provides a 
reasonable basis for calculating a general CMRS cap, but that a CMRS 
cap should also be adjusted upward slightly to allow reasonable 
flexibility for PCS licensees and other existing mobile services 
providers to provide both broadband and narrowband services. The 
Further Notice also seeks comment on whether the cap should apply to: 
(1) Services that are not competitive with each other, (2) narrowband 
services, or (3) services licensed on a non-contiguous channel-by-
channel basis or on shared spectrum. Commenters are also asked to 
address whether satellite licensees offering CMRS services should be 
included in a CMRS spectrum cap.
    30. Assuming that the Commission adopts a CMRS spectrum cap, the 
Further Notice seeks comment on: (1) How to define the geographic 
service areas in which the cap would apply, and (2) the percentage 
ownership interest that an individual or entity should be allowed to 
hold in a CMRS offering before it is attributed to that entity for 
purposes of a spectrum cap. The Commission proposes to consider all 
CMRS ownership interests of five percent as subject to a spectrum cap, 
but seeks comment on the alternative of establishing different 
attribution levels for specific CMRS offerings. The Commission also 
proposes that a CMRS licensee serving 10 percent or more of the 
population in a designated area should be subject to the spectrum cap 
in that area for purposes of further licensing. Finally, the Commission 
seeks comment on whether to apply different attribution standards for 
designated entities, i.e., minorities and women, rural telcos, and 
small businesses, to ensure their full participation in the developing 
CMRS market.

E. Licensing Rules

    31. Finally, the Further Notice addresses the issue of licensing 
rules for CMRS applicants in those services that were formerly licensed 
solely on a private basis. Specifically, the Commission proposes to 
ensure that once reclassification becomes effective, all CMRS 
applications are subject to uniform licensing procedures that comply 
with the statutory requirements for licensing of common carriers under 
Title III of the Act, including public notice procedures and alien 
ownership restrictions. In addition, the Commission proposes a 
transition mechanism for carrying out the reclassification of existing 
private radio licensees that have been identified as CMRS providers by 
the Second Report and Order but that are not subject to CMRS regulation 
until the conclusion of the statutory transition period.
    32. Application Forms and Procedures. The Commission proposes to 
adopt a single unified application form that can be used by all CMRS 
and PMRS applicants in all terrestrial mobile services. The proposed 
form (tentatively designated as Form 600) would supersede both Form 401 
and Form 574 in those services that currently use them. The form 
consists of two-page main form and a series of supplemental schedules 
designed for particular mobile service categories. The main form is 
designed to provide the Commission with basic information regarding the 
identity and qualifications of the applicant and the general nature of 
the application. The proposed schedules seek additional administrative 
and technical information in specific service categories.
    33. The Commission proposes to use Form 600 to determine the 
regulatory classification of all mobile services. The main form 
requires each applicant to indicate the service category in which the 
application is made and whether the proposed service meets the three 
``prongs'' of the statutory definition of CMRS, i.e., whether the 
applicant's service will be: (1) Provided for profit, (2) 
interconnected to the public switched network, and (3) available to the 
public. Based on the information provided, the Commission proposes to 
classify each application as CMRS or PMRS for licensing purposes.
    34. Qualifying Information. Under our proposed application 
procedures discussed above, all CMRS applicants, including Part 90 
applicants who request CMRS station classification, will be required to 
disclose on Form 600 any ownership or control interest in the applicant 
held by an alien. This disclosure is identical to the disclosure 
currently required of Part 22 applicants. In addition, the proposed 
form will require Part 90 CMRS applicants to disclose the same 
information as Part 22 applicants relating to prior license denials or 
revocations, felony convictions, and monopolization of radio services.
    35. Fees. The Further Notice proposes to establish filing fees for 
CMRS applicants in Part 90 services that are equivalent to the filing 
fees already paid by Part 22 common carrier applicants. In addition, 
the Budget Act has added a new section 9 to the Communications Act, 
which authorizes the Commission to collect annual regulatory fees from 
all Commission licensees to recover costs incurred in carrying out its 
regulatory activities. The Further Notice proposes to require Part 90 
CMRS licensees to pay the per-subscriber fee established pursuant to 
the statute for common carriers instead of the per-license fee 
established for private radio services.
    36. Public Notice and Petition to Deny Procedures for CMRS 
Applications. Section 309(b)(1) of the Act requires all applications 
for common carrier station authorizations (other than minor amendments 
excepted under section 309(c)) to be placed on public notice for 30 
days prior to grant, and Section 309(d) allows petitions to deny to be 
filed against such applications during the public notice period. To 
implement these statutory requirements, the Commission proposes to 
apply the public notice and petition to deny procedures currently set 
forth in Part 22 to Part 90 applications for SMR, 220 MHz, Business 
Radio, and paging licenses that are designated as CMRS.
    37. Mutually Exclusive Applications/Competitive Bidding. Section 
309(j) of the Communications Act authorizes the use of competitive 
bidding to select among mutually exclusive initial applications in most 
CMRS services. The Further Notice tentatively concludes that 
competitive bidding procedures should generally be used to resolve 
mutually exclusive CMRS applications where the Commission has the 
authority to do so. This is not intended to preclude the use of first-
come, first-served procedures, short filing windows, and similar 
procedures for avoiding mutual exclusivity where appropriate to promote 
the public interest.
    38. Based on this tentative conclusion, the Commission generally 
proposes to continue the use of current filing window procedures in 
Part 22 services, with some modifications, and to use competitive 
bidding to select a tentative licensee where mutually exclusive initial 
applications are filed. The Commission seeks further comment on whether 
to adopt similar procedures for resolving mutually exclusive CMRS 
applications in Part 90 services subject to reclassification, or 
whether there are factors that may justify the use of different 
procedures for some Part 90 services, either the Commission lacks 
authority to use competitive bidding in the service or because amending 
our procedures would otherwise not be in the public interest.
    39. The Further Notice seeks specific comment on how this analysis 
would apply to each Part 90 service that is subject to 
reclassification. The Commission tentatively concludes that filing 
windows and competitive bidding procedures should be used in future 900 
MHz SMR licensing. In the 800 MHz band, the Commission seeks comment on 
whether wide-area applications should be treated as modifications of 
existing licenses that should not be subject to competitive bidding or 
as initial applications that justify the use of filing windows and 
competitive bidding procedures. With respect to 220 MHz service, the 
Further Notice does not propose any changes to existing first-come, 
first-served procedures, but seeks comment on whether alternative 
procedures would allow reasonable opportunities for CMRS applications 
to file competing applications without limiting the availability of 
frequencies to potential PMRS applicants. Finally, the Commission will 
defer the issue of mutually exclusive application procedures for 929-
930 MHz paging frequencies until after it has completed the pending 
reconsideration of the Report and Order in PR Docket No. 93-35. See 
Report and Order, 8 FCC Rcd 8318, 58 FR 62289 (November 26, 1993).
    40. Amendment of Applications and License Modification. Under 
Section 309 of the Communications Act, major amendments to CMRS 
applications in Part 90 services must be placed on public notice and 
are subject to petitions to deny in the same manner as initial 
applications. For this purpose, the Commission proposes to apply the 
same definitions of ``major'' and ``minor'' amendments to Part 90 CMRS 
applications that are applicable to Part 22 applications. The 
Commission also proposes to apply these same definitions to 
applications to modify existing CMRS licenses in Part 90 services.
    41. The Further Notice also seeks comment on whether the foregoing 
definition of ``major'' filings should dictate whether auctions may be 
used when an application to modify an existing CMRS license is mutually 
exclusive with another application. Although the Commission has 
previously concluded that competitive bidding generally should not be 
used in the case of license modification applications (see Second 
Report and Order, PP Docket No. 93-253, 59 FR 22980 (May 4, 1994), it 
reserved the authority to treat a modification that would significantly 
alter a licensee's existing authorization as equivalent to an initial 
application for competitive bidding purposes. The Further Notice seeks 
comment on whether ``major'' CMRS modifications that are treated as 
initial applications for purposes of public notice and acceptance of 
competing applications should be treated as initial applications for 
competitive bidding purposes as well.
    42. Conditional and Special Temporary Authority. Part 22 applicants 
are generally prohibited from commencing construction or operations 
prior to licensing, except that section 309(f) of the Communications 
Act allows the Commission to grant a special temporary authorization 
(STA) to a common carrier applicant under extraordinary circumstances., 
Part 90 applicants may commence construction at any time and are 
subject to more liberal procedures for temporary operation. The Further 
Notice proposes to apply the same rules for pre-grant construction and 
operation to CMRS applicants under both Part 22 and Part 90. Because 
Section 309(f) now applies to CMRS applications in Part 90 as well as 
applications under Part 22, the Commission proposes to adopt procedures 
in Part 90 that will subject STA requests by Part 90 CMRS applicants to 
the same requirements that are applied to similar requests by Part 22 
applicants.
    43. License Term/Renewal Expectancy. The Commission proposes to 
establish a uniform 10-year license term for all CMRS licensees, 
including those in Part 90 services. The Commission also proposes to 
extend its existing Part 22 rules and case law regarding renewal 
expectancy to all Part 90 CMRS licensees. The Further Notice seeks 
comment, however, on whether a single standard for granting a 
preference to renewal applicants should be applied uniformly to all 
CMRS services or whether alternative standards should be considered.
    44. Assignment of Licenses and Transfer of Control. The Commission 
proposes to allow assignment or transfer of most CMRS licenses upon 
completion of construction and placing of the system in operation, 
provided that the applicant can demonstrate that the assignment or 
transfer will serve the public interest, convenience and necessity. The 
Commission also seeks comment on whether CMRS licensees should be 
allowed to assign or transfer unconstructed licenses under some 
circumstances, e.g., where the transferor can demonstrate that the 
transfer is not for purposes of speculation. The Commission also seeks 
comment on whether disclosure and anti-trafficking rules recently 
adopted for licenses awarded by competitive bidding and lottery justify 
modifying our existing transfer and assignment restrictions.
    45. Combined PMRS and CMRS Operation. In the Second Report and 
Order, the Commission concluded that mobile service providers in Part 
90 services where both CMRS and PMRS operation are allowed should have 
the flexibility to provide both CMRS and PMRS offerings under a single 
license. The Commission proposes that in such services, applicants 
would be allowed to seek authority to provide both CMRS and PMRS 
offerings under a single authorization. For licensing purposes, such 
applications would be treated as CMRS applications subject to public 
notice, petitions to deny, and the additional procedural requirements 
for CMRS discussed above. In addition, the applicant would be required 
to submit a showing with its application indicating what portion of the 
assigned spectrum would be dedicated to PMRS and describing the 
proposed PMRS offering in sufficient detail to demonstrate that it 
falls outside the CMRS definition.
    46. Conversion to CMRS Status by Existing Part 90 Licensees. In 
addition to affecting licensing procedures for new applicants, the 
reclassification of certain Part 90 services as CMRS changes the 
regulatory status of a significant number of existing licensees. The 
Commission proposes to identify all existing licensees in the SMR, 
Business Radio, and 220 MHz services as CMRS or PMRS providers based on 
whether the licensee's station classification authorizes for-profit, 
interconnected service to be provided. Where the station classification 
indicates that for-profit, interconnected service is being provided, 
the Commission would modify the license to indicate CMRS status. Part 
90 licensees bearing any other classification would continue to be 
treated as PMRS authorizations. The Commission further proposes that 
within 90 days after the date these proposed rules go into effect, Part 
90 licensees may request changes to their station class designations to 
reflect actual operations.

Initial Regulatory Flexibility Analysis

    As required by Section 603 of the Regulatory Flexibility Act, the 
Commission has prepared an Initial Regulatory Flexibility Analysis 
(IRFA) of the expected impact of these proposed policies and rules on 
small entities. Written public comments are requested on the IRFA.

A. Reason for Action

    This rule making proceeding was initiated to secure comment on 
various proposals for the implementation of sections 3(n) and 332 of 
the Communications Act, 47 U.S.C. 153(n), 332, as amended by Title VI 
of the Omnibus Budget Reconciliation Act (Budget Act). The proposals 
advanced herein are designed to carry out Congress' intent to establish 
regulatory symmetry in the regulation of mobile radio services.

B. Objectives

    In the Budget Act, Congress directed the Commission to implement 
sections 3(n) and 332, as amended. In accordance with this directive, 
the Commission seeks to address the impact of the statute on technical, 
operational, and licensing rules for all Commercial Mobile Radio 
Services (CMRS) including those formerly private services that have 
been reclassified as CMRS under the terms of the new legislation. The 
revisions to the regulatory scheme proposed in this Further Notice are 
intended to ensure equitable treatment of comparable mobile services 
providers, which will in turn promote regulatory certainty and allow 
for the enhanced provision of service to the public.

C. Legal Basis

    The proposed action is authorized under the Omnibus Budget 
Reconciliation Act of 1993, Pub. L. 103-66, Title VI, 6002(b), and 
sections 3(n), 4(i), 303(r), 332(c), and 332(d) of the Communications 
Act of 1934, 47 U.S.C. 153(n), 154(i) and 303(r), 332(c), and 332(d), 
as amended.

D. Reporting, Recordkeeping, and Other Compliance Requirements

    The proposals under consideration in this Further Notice may impose 
certain new reporting and recordkeeping requirements on mobile services 
licensees whose regulatory status has changed from private to 
commercial as a result of the new legislation.

E. Federal Rules Which Overlap, Duplicate, or Conflict With These Rules

    None.

F. Description, Potential Impact, and Number of Small Entities Involved

    Many small entities could be affected by the proposals contained in 
the Further Notice. Depending on the final resolution of the issues, 
regulations affecting the licensing, technical configuration, and 
operations of numerous mobile services providers may be changed. The 
full extent of these changes cannot be predicted until various other 
issues raised in the proceeding have been resolved. After evaluating 
the comments filed in response to the Further Notice, the Commission 
will examine further the impact of all rule changes on small entities 
and set forth its findings in the Final Regulatory Flexibility 
Analysis.

G. Significant Alternatives Minimizing the Impact on Small Entities 
Consistent with the Stated Objectives

    The Further Notice solicits comment on a variety of alternatives. 
Any additional significant alternatives presented in the comments will 
also be considered.

H. IRFA Comments

    The Commission requests written public comment on the foregoing 
Initial Regulatory Flexibility Analysis. Comments must have a separate 
and distinct heading designating them as responses to the IRFA and must 
be filed by the deadlines specified in the summary above.

List of Subjects in 47 CFR Parts 20, 22, and 90

    Mobile radio services, Radio.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 94-13311 Filed 5-27-94; 8:45 am]
BILLING CODE 6712-01-M