[Federal Register Volume 64, Number 136 (Friday, July 16, 1999)]
[Rules and Regulations]
[Pages 38313-38314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18231]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 20
[WT Docket No. 97-207; FCC 99-137]
Commercial Mobile Radio Services
AGENCY: Federal Communications Commission.
ACTION: Final rule; clarification.
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SUMMARY: This document finds that service offered with a Calling Party
Pays option qualifies as Commerical Mobile Radio Service (CMRS) under
the Communications Act, meets the criteria of the definition for a
Commercial Mobile Radio Service under the Commission's rules, and thus
falls under the regulatory structure set out in the Communications Act.
The document is needed to clarify any uncertainty regarding the
regulatory status of Calling Party Pays offerings.
DATES: Effective July 7, 1999.
FOR FURTHER INFORMATION CONTACT: David Siehl or Joseph Levin at (202)
418-1310, TTY at (202) 418-7233, Policy Division, Wireless
Telecommunications Bureau, Federal Communications Commission,
Washington, D.C. 20554.
SUPPLEMENTARY INFORMATION: The following synopsis concerns only the
Declaratory Ruling in the Commission's Declaratory Ruling and Notice of
Proposed Rulemaking in WT Docket No. 97-207, adopted June 10, 1999, and
released July 7, 1999. The synopsis of the document containing the
Notice of Proposed Rulemaking is being published separately in the
Federal Register. The complete text of the entire released item,
including the Declaratory Ruling, is available for inspection and
copying during normal business hours in the FCC Reference Information
Center (Courtyard Level), 445 12th Street, S.W., Washington, D.C.
20554, and also may be purchased from the Commission's copy contractor,
International Transcription Services, at (202) 857-3800, 445 12th
Street, S.W., CY-B400, Washington, D.C. 20054.
Synopsis of Declaratory Ruling
1. In this Declaratory Ruling we clarify that Calling Party Pays
(CPP) offerings qualify as Commercial Mobile Radio Service (CMRS) under
the Communications Act and thus would fall under the regulatory
structure set out in section 332(c)(3) of the Act.1
Therefore, providers of CPP would be treated as common carriers, and
state regulation of rates and entry for CPP would generally be
preempted.
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\1\ 47 U.S.C. 332(c)(3).
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2. The record reveals disagreement regarding how CPP should be
classified, and the significance of prior Commission statements
regarding CPP. Some commentators in the Notice of Inquiry (NOI) (62 FR
58700 (Oct. 30, 1997)) record argue that states have jurisdiction over
CPP as a billing practice, while other commenters support Commission
jurisdiction, relying on the rationale that CPP is a CMRS service.
3. The Commission finds that CPP offerings are properly classified
as CMRS services pursuant to section 332 of the Act.2 In
order to determine whether a particular service could constitute CMRS,
the Commission looks to section 332(d) of the Act. As provided by the
statute,3 the term ``commercial mobile service'' means any
mobile service (as defined in section 3 of the Act) 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 * * * .'' Section 3 of the Act and
Sec. 20.3 of the Commission's Rules, in turn, define the term ``mobile
service'' in pertinent part as ``a radio communication service carried
on between mobile stations or receivers and land stations, and by
mobile
[[Page 38314]]
stations communicating among themselves.'' 4 The Act further
specifies the definition of radio communication as follows: ``The term
`radio communication' or `communication by radio' means the
transmission by radio of writing, signs, pictures, and sounds of all
kinds, including all instrumentalities, facilities, apparatus, and
services (among other things, the receipt, forwarding, and delivery of
communications) incidental to such transmission.'' 5
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\2\ 47 U.S.C. 332.
\3\ 47 U.S.C. 332(d)(1).
\4\ 47 U.S.C. 3(27); 47 CFR 20.3.
\5\ 47 U.S.C. 3(33).
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4. The Commission finds, first, that CPP offerings would meet the
``mobile service'' part of the definition. In CPP, the calling party,
whether from a land or mobile station, would be seeking to use radio
spectrum and related wireless network facilities to transmit writing,
signs, pictures and sounds to a mobile station. CPP would also be
provided ``for profit,'' as required by the statute.6
Whether the payment for a call to a mobile subscriber comes from the
calling party or from the mobile subscriber under CPP, the payment
accrues directly to and compensates the CMRS provider of the mobile
``communications service'' for providing service to the mobile
subscriber. The Commission further finds that CPP would meet the
``interconnected service'' criterion of the definition for commercial
mobile radio service. 7 Under CPP, a calling party would be
sending a message over the ``public switched network,'' as those terms
are defined by the regulation, to reach the mobile phone of the CMRS
subscriber. Finally, the Commission finds that CPP would satisfy the
statutory requirement of being ``available * * * to the public.''
8 Based on the record, CMRS providers who will offer CPP
service would be making it available on nondiscriminatory terms and
conditions to all potential subscribers and to calling parties who want
to reach the mobile subscribers who have the CPP service
option.9 Thus, CPP offerings would satisfy the relevant
statutory definition for CMRS.
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\6\ Section 20.3(a)(1) adds to the phrase, ``provided for
profit,'' the following language: ``i.e., with the intent of
receiving compensation or monetary gain.'' Section 20.3(a)(1) of the
Commission's Rules, 47 CFR 20.3(a)(1).
\7\ 47 U.S.C. 332(d); 47 CFR 20.3. The Commission is authorized
to define ``public switched network,'' pursuant to section 332(d)
(defining the term ``interconnected service'' as ``service that is
interconnected with the public switched network (as such terms are
defined by regulation by the Commission) * * *.'' 47 U.S.C.
332(d)(2).
\8\ 47 U.S.C. 332(d)(1).
\9\ See 47 CFR 20.3(b).
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5. Moreover, the Commission finds that there is no reference in the
statutory language definition to who pays for the call, and no
suggestion that CPP, which would satisfy all requirements of the
definition, should be excluded because the calling party pays the
airtime charges.'' Whether the payment obligation to the CMRS provider
for using that airtime falls on the party initiating the call (CPP) or
on the party receiving the call, the underlying transmission and
wireless network facilities remain the same as those currently used to
provide CMRS and, as described, would be subject to section 332 of the
Act.10 In agreeing to pay for the call to the CMRS
subscriber, the calling party becomes, for the purpose of completing
the call, a customer of the CMRS provider. Placement of a CPP call by
the calling party thus operates similarly to casual calling services
whereby the call to a mobile user does not require the calling party to
establish an account, or presubscribe, with the CMRS provider. Thus, a
CPP offering, while transferring some payment aspects of the call to a
customer other than the owner of the mobile phone, does not in any
fashion alter the regulatory classification of the call.
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\10\ 47 U.S.C. 332.
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6. The Commission also rejects the view that classifying CPP as
CMRS is inconsistent with the Arizona Decision.11 In that
decision, the Commission gave only limited attention to the regulatory
classification of CPP, but instead focused on addressing Arizona
Corporation Commission's case for continued rate regulation of CMRS
generally. That decision did not address explicitly the statutory
criteria of section 332(d) as to whether CPP is CMRS, or describe CPP
in any detail. Even so, the Commission agrees with BAM that the
underlying premise of that order is that the Commission considered CPP
as CMRS, as evidenced by the fact that the Arizona Decision addressed
the issues there in the context of section 332. Indeed, the discussion
of CPP-related billing practices in the Arizona Decision simply
concerned whether such practices fall within the scope of `` `other
terms and conditions' of CMRS offerings.'' Thus, the Arizona Decision
implicitly characterized CPP as a CMRS offering.
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\11\ Petition of Arizona Corporation Commission to Extend State
Authority over Rate and Entry Regulation of All Commercial Mobile
Radio Services and Implementation of Sections 3(n) and 332 of the
Communications Act, PR Docket No. 94-104 and GN Docket No. 93-252,
Report and Order and Order on Reconsideration, 10 FCC Rcd 7824, 7837
(1995).
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7. The Commission also regards the discussion of CPP in the Arizona
Decision as dicta. In the Arizona Decision, the Commission rejected
ACC's argument that it needed continued rate regulation authority on
the basis of two examples, including CPP. In discussing this decision,
the Commission found that it could not conclude that ``these isolated
incidents constitute a pattern of anticompetitive practice that might
warrant continued state rate regulation.'' The conclusion regarding
``these isolated incidents'' holds true whether or not Arizona's
intervention into a CPP matter involved a CMRS service or a billing
practice. Accordingly, we find that the possible characterization of
CPP as a ``billing practice'' was not essential to the decision and
therefore dicta. Finally, to the extent that the Arizona Decision is
found as holding that CPP does not constitute a CMRS service, the
Commission hereby overturns any such holding.
Ordering Clauses
Accordingly, it is ordered That the action reflected in the
Declaratory Ruling is taken pursuant to sections 1, 4(i), and 403 of
the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 403,
and 47 CFR 1.2.
It is further ordered that the Declaratory Ruling is effective
immediately upon release of this Declaratory Ruling and Notice of
Proposed Rulemaking.
It is further ordered that parties have until August 16, 1999 to
seek review of the Declaratory Ruling.
List of Subjects in 47 CFR Part 20
Communications common carrier; Commercial mobile radio services.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 99-18231 Filed 7-15-99; 8:45 am]
BILLING CODE 6712-01-P