[Federal Register Volume 66, Number 97 (Friday, May 18, 2001)]
[Rules and Regulations]
[Pages 27600-27601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12609]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2 and 68

[GEN Docket No. 98-68; FCC 01-141]


Streamlining the Equipment Authorization Process; Implementation 
of Mutual Recognition Agreements and the GMPCS MOU

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document responds to the Petition for Reconsideration 
filed by Motorola. The petition requested clarification of the Report 
and Order in this proceeding regarding the handling of confidential 
information by ``Telecommunication Certification Bodies.''

DATES: Effective June 18, 2001.

FOR FURTHER INFORMATION CONTACT: Hugh Van Tuyl, Office of Engineering 
and Technology, (202) 418-7506.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Memorandum Opinion and Order, GEN Docket No. 98-68, FCC 01-141, adopted 
April 24, 2001, and released April 30, 2001. The full text of this 
Commission decision is available on the Commission's Internet site at 
www.fcc.gov. It is available for inspection and copying during normal 
business hours in the FCC Reference Information Center, Room CY-A257, 
445 12th Street, SW., Washington, DC, and also may be purchased from 
the Commission's duplication contractor, International Transcription 
Service, (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

Summary of the Memorandum Opinion and Order

    1. The Report and Order, 64 FR 4984, February 2, 1999, in this 
proceeding, established a process through which private sector 
organizations could be designated to approve radio frequency devices 
and telephone terminal equipment in essentially the same manner as the 
Commission. These organizations are called Telecommunication 
Certification Bodies (TCBs). The rules we adopted specify the criteria 
that an organization must meet to be eligible for designation as a TCB, 
the designation procedure, the scope of responsibility of TCBs, and the 
requirements that TCBs must follow after issuing equipment approvals. 
Motorola, Inc. (Motorola) filed a petition requesting a clarification 
of the confidentiality of applications filed with TCBs. By this action, 
we clarify the confidentiality requirements in Parts 2 and 68 of the 
rules that TCBs must follow in certifying radio frequency devices and 
telephone terminal equipment as compliant with the Commission's rules.
    2. Equipment authorization applications and related materials are 
not routinely available for public inspection prior to the effective 
date of the authorization. Upon grant of an application, the 
application file is routinely available for public inspection. However, 
the party filing an application for equipment authorization may request 
that the Commission hold certain exhibits confidential. Those exhibits 
for which confidentiality have been requested and granted are not 
routinely available for public inspection even after grant of the 
application. The factors that the Commission considers in determining 
whether to grant confidentiality include, among others, whether the 
material contains information that is commercial, financial, privileged 
or a trade secret, and whether disclosure of the information could 
result in substantial competitive harm.
    3. When the requirements for TCBs were established, one of the 
rules adopted states that, upon request from the Commission, a TCB 
shall provide a copy of an application file to the Commission 
accompanied by a request for confidentiality for any information that 
qualifies as trade secrets. This requirement is intended to ensure the 
appropriate handling of materials filed with a TCB that are not 
routinely available for public inspection. Just as similar materials 
filed with the Commission are not routinely available for public 
inspection, TCBs are obligated to safeguard the confidentiality of 
information obtained in the course of their certification activities.
    4. In its petition, Motorola requests that we clarify 
Sec. 2.962(g)(4) of the rules regarding the handling of confidential 
information by TCBs. Specifically, Motorola is concerned about the use 
of the term trade secrets in this section to identify confidential 
materials. It states that this term as construed by the courts refers 
to a process that a business does not disclose publicly. Thus, it 
contends, this wording of the rule provides less protection to material 
included with applications filed with TCBs than those filed with the 
Commission. It believes that the rules for TCBs we adopted in this 
proceeding should refer more broadly to material that qualifies for 
confidential treatment under the Commission's rules rather than to 
trade secrets.
    5. Motorola is correct that our rules permit material besides trade 
secrets to be held as confidential. We find that its recommended change 
to the rules we adopted in this proceeding more clearly reflects the 
intent of the rules, which is to ensure that applications processed by 
TCBs are treated in the same manner as applications processed by the 
Commission. We are therefore adopting this change. Motorola only 
specifically requested that we change Sec. 2.962(g)(4) of the rules, 
which applies to the authorization of radio frequency devices by TCBs. 
However, on our own motion we are also making this change to 
Sec. 68.162(g)(4) of the rules which applies to authorization of 
telephone terminal equipment by TCBs because the same confidentiality 
requirements that apply to radio frequency devices apply to telephone 
terminal equipment. This change will ensure consistent treatment of 
applications for both types of equipment.

Final Regulatory Flexibility Certification

    6. The Regulatory Flexibility Act of 1980, as amended (RFA),\1\ 
requires that a regulatory flexibility analysis be prepared for 
rulemaking proceedings, unless the agency certifies that ``the rule 
will not have a significant economic impact on a substantial number of 
small entities.'' \2\ The RFA generally defines the term ``small 
entity'' as having the same meaning as the terms ``small business,'' 
``small organization,'' and ``small governmental jurisdiction.'' \3\ In 
addition, the term ``small business'' has the same meaning as the term 
``small business concern'' under the Small Business Act.\4\ A small 
business concern is one which: (1) Is independently owned and operated; 
(2) is not dominant in its field of operation; and (3) satisfies any 
additional criteria

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established by the Small Business Administration.
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    \1\ The RFA, see 5 U.S.C. 601 et seq., has been amended by the 
Contract With America Advancement Act of 1996, Public Law 104-121, 
110 Stat. 847 (1966) (CWAAA). Title II of the CWAAA is the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).
    \2\ 5 U.S.C. 605(b).
    \3\ 5 U.S.C. 601(6).
    \4\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in the Small Business Act, 15 U.S.C. 
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency, after consultation with 
the Office of Advocacy of the Small Business Administration and 
after opportunity for public comment, establishes one or more 
definitions of such term which are appropriate to the activities of 
the agency and publishes such definition(s) in the Federal 
Register.''
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    7. The Report and Order, 64 FR 4984, February 2, 1999, established 
a process through which private sector organizations could be 
designated to approve radio frequency devices and telephone terminal 
equipment. These TCBs were required under the Report and Order to keep 
``trade secret'' information confidential. A Final Regulatory 
Flexibility Analysis was incorporated in the Report and Order.\5\ 
Following publication of the Report and Order, Motorola filed its 
petition seeking clarification of the confidentiality of applications 
filed with TCBs. In this Memorandum Opinion and Order we are amending 
the rules to indicate that confidentiality should apply to ``any 
material that qualifies for confidential treatment under the 
Commission's Rules.''
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    \5\ 13 FCC Rcd 24737 (1999).
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    8. This amendment to the rules will affect the 15 to 20 TCBs in 
operation; and it is the Commission's belief that most of the TCBs are 
small businesses. Most applications filed with TCBs do not require that 
any information be held confidential. Where material does require 
confidential treatment it is predominantly because the materials are 
``trade secrets.'' Systems for determining and storing ``trade 
secrets'' are already in place. The small amount of additional material 
required to be stored because it is ``material considered to be 
confidential by the Commission'' is insignificant. Therefore, we expect 
that the increased burden on TCBs caused by this amendment is nominal 
and does not rise to the level of a ``significant economic burden.'' 
Therefore, we certify that the amendments included in this Memorandum 
Opinion and Order will not have a significant economic impact on a 
substantial number of small entities.
    9. The Commission will send a copy of the Memorandum Opinion and 
Order, including a copy of this final certification, in a report to 
Congress pursuant to the Small Business Regulatory Enforcement Fairness 
Act of 1996.\6\ In addition, the Memorandum Opinion and Order and this 
certification will be sent to the Chief Counsel for Advocacy of the 
Small Business Administration.\7\
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    \6\ See 5 U.S.C. 801(a)(1)(A).
    \7\ See 5 U.S.C. 605(b).
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    10. The petition for clarification filed by Motorola is granted. It 
is further ordered that Parts 2 and 68 of the Commission's Rules are 
amended June 18, 2001. Pursuant to the authority contained in sections 
4(i), 303(f), 303(g) and 303(r) of the Communications Act of 1934, as 
amended, 47 U.S.C. 154(i), 303(f), 303(g) and 303(r).
    11. The Commission's Consumer Information Bureau, Reference 
Information Center, shall send a copy of the Memorandum Opinion and 
Order, including the Final Regulatory Flexibility Certification, to the 
Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Parts 2 and 68

    Communications equipment, Reporting and recordkeeping requirements.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rules Changes

    For the reasons discussed in the preamble, parts 2 and 68 of title 
47 of the Code of Federal Regulations is amended as follows:

PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL 
RULES AND REGULATIONS

    1. The authority citation for part 2 continues to read as follows:

    Authority: 47 U.S.C. 154, 302a, 303 and 336, unless otherwise 
noted.

    2. Section 2.962 is amended by revising paragraph (g)(4) to read as 
follows:


Sec. 2.962  Requirements for Telecommunication Certification Bodies.

* * * * *
    (g) * * *
    (4) Where concerns arise, the TCB shall provide a copy of the 
application file to the Commission within 30 calendar days of a request 
for the file made by the Commission to the TCB and the manufacturer. 
Where appropriate, the file should be accompanied by a request for 
confidentiality for any material that may qualify for confidential 
treatment under the Commission's Rules. If the application file is not 
provided within 30 calendar days, a statement shall be provided to the 
Commission as to why it cannot be provided.
* * * * *

PART 68--CONNECTION OF TERMINAL EQUIPMENT TO THE TELEPHONE NETWORK

    3. The authority citation for part 68 continues to read as follows:

    Authority: 47 U.S.C. 154, 303.


    4. Section 68.162 is amended by revising paragraph (g)(4) to read 
as follows:


Sec. 68.162  Requirements for Telecommunication Certification Bodies.

* * * * *
    (g) * * *
    (4) Where concerns arise, the TCB shall provide a copy of the 
application file to the Commission within 30 calendar days of a request 
for the file made by the Commission to the TCB and the manufacturer. 
Where appropriate, the file should be accompanied by a request for 
confidentiality for any material that may qualify for confidential 
treatment under the Commission's Rules. If the application file is not 
provided within 30 calendar days, a statement shall be provided to the 
Commission as to why it cannot be provided.
* * * * *

[FR Doc. 01-12609 Filed 5-17-01; 8:45 am]
BILLING CODE 6712-01-U