[Federal Register Volume 78, Number 118 (Wednesday, June 19, 2013)]
[Rules and Regulations]
[Pages 36677-36679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-13675]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 5

[ET Docket No. 10-236 and 06-155; FCC 13-76]


Radio Experimentation and Market Trials--Streamlining Rules

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document the Commission modifies on its own motion the 
rules adopted in this proceeding regarding transfer and assignment of 
experimental licenses of its rules. Upon reflection, the Commission 
found it in the public interest to specifically prohibit the transfer 
of program, medical testing, and compliance testing experimental radio 
licenses, while continuing to permit conventional experimental 
authorizations to be transferred with the written approval of the 
Commission. There is an inconsistency between the adopted rule and this 
prohibition, which is resolved by clearly prohibiting such transfers. 
In making this rule modification, it is noted that the rules provide 
options for entities to obtain an experimental license to ensure 
continuation of all experiments without lapse including those being 
conducted under a program, medical testing, and compliance testing 
license. Thus, this action will result in no harm to any qualified 
license applicant or licensee.

DATES: This rule requires approval by the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act (PRA), and will become 
effective after the Commission publishes a notice in the Federal 
Register announcing such approval and the relevant effective date.

FOR FURTHER INFORMATION CONTACT: Rodney Small, Office of Engineering 
and Technology, 202-418-2452, [email protected].

[[Page 36678]]


SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration, ET Docket No. 10-236 and 06-155, FCC 13-76, adopted 
May 28, 2013, and released May 29, 2013. The full text of this document 
is available for inspection and copying during normal business hours in 
the FCC Reference Center (Room CY-A257), 445 12th Street SW., 
Washington, DC 20554. The complete text of this document also may be 
purchased from the Commission's copy contractor, Best Copy and 
Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 
20554. The full text may also be downloaded at: www.fcc.gov. People 
with Disabilities: To request materials in accessible formats for 
people with disabilities (braille, large print, electronic files, audio 
format), send an email to [email protected] or call the Consumer & 
Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 
(tty).

Summary of Order on Recconsideration

    1. In this Order, the Commission modifies on its own motion the 
rules adopted in the Report and Order (R&O), 78 FR 25137, April 29, 
2013, in this proceeding regarding transfer and assignment of 
experimental licenses issued under Part 5 of its rules.
    2. In the Notice of Proposed Rulemaking (NPRM), 76 FR 6928, 
February 8, 2011, in this proceeding, the Commission, inter alia, 
proposed to establish research program, medical program, and innovation 
zone program Experimental Radio Service (ERS) licenses to complement 
the existing conventional experimental license. The Commission also 
proposed to amend the language of Sec.  5.79 of the Commission's rules 
regarding ERS license transfers. The proposed language modified the 
title of the rule to specifically refer to conventional experimental 
licenses and preserved the core component of the rule by continuing to 
prohibit the transfer of such licenses, unless the Commission approves 
in writing such a transfer. The proposed rule did not address transfers 
of the proposed program licenses. No comments were received on this 
proposal.
    3. In the R&O, the Commission authorized three new types of ERS 
licenses, but modified the proposal set forth in the NPRM by 
classifying those licenses as program, medical testing, and compliance 
testing. The Commission also adopted the body of proposed Sec.  5.79, 
but included the three new types of ERS licenses--in addition to 
conventional licenses--in the section heading. Thus, the R&O implies 
that, under amended Sec.  5.79, the transfer of any type of ERS license 
is permitted with the written approval of the Commission.
    4. Upon reflection, the Commission finds it in the public interest 
to modify Sec.  5.79 to specifically prohibit the transfer of program, 
medical testing, and compliance testing experimental radio licenses, 
while continuing to permit conventional experimental authorizations to 
be transferred with the written approval of the Commission. As an 
initial matter, the Commission observes that the text of the R&O stated 
that the Commission would prohibit the transfer of compliance testing 
licenses. Thus, in this respect, there is an inconsistency between the 
adopted rule and this prohibition, which should be resolved by clearly 
prohibiting such transfers.
    5. The Commission concluded that, based on the nature of the 
program, medical testing, and compliance licenses, transfer of these 
licenses should not be permitted. These new ERS licenses, which afford 
some important advantages relative to the conventional ERS license--
including significantly more flexibility to undertake a broad range of 
experiments under a single authorization--also impose additional 
requirements on applicants of these new licenses, requirements that 
reflect that these licenses are more tailored to the unique 
characteristics of the particular licensed entity than is the case with 
conventional experimental licenses. For example, unlike the eligibility 
requirements for conventional licenses, which require only that 
licensees be ``qualified to conduct the types of operations permitted 
in Sec.  5.3 of this part . . . , '' these new ERS licenses are limited 
to specialized organizations and institutions. Specifically, program 
experimental licenses are available only to ``colleges, universities, 
research laboratories, manufacturers of radio frequency equipment, 
manufacturers that integrate radio frequency equipment into their end 
products, and medical research institutions;'' medical testing licenses 
are available only to ``hospitals and health care institutions that 
demonstrate expertise in testing and operation of experimental medical 
devices that use wireless telecommunications technology or 
communications functions in clinical trials for diagnosis, treatment, 
or patient monitoring;'' and compliance testing licenses are available 
only to ``laboratories recognized by the FCC under subpart J of this 
chapter to perform (i) product testing of radio frequency equipment, 
and (ii) testing of radio frequency equipment in an Open Area Test 
Site.'' Program and medical testing licensees must also meet additional 
requirements concerning responsible party, public notification, and 
safety of the public to ensure that harmful interference to other 
licensed radio services is not caused by program and medical testing 
experiments. These factors necessitate a greater level of review of the 
specific attributes of the applicant and the details of the 
experimentation plans than the Commission undertakes when evaluating 
applications pertaining to a conventional license, and much of this 
additional information is not normally provided on a transfer 
application. Thus, it would be difficult for the Commission to 
ascertain if the transferee has the necessary knowledge, expertise, and 
internal controls required by the rules without introducing significant 
complexity to our existing transfer process (comparable to that 
required for initial licensing).
    6. In addition, unlike a conventional ERS license, which conveys a 
narrowly defined right to operate a single experiment in a specific 
frequency band at specific locations, program and medical testing 
licenses will convey broad rights to operate multiple experiments in a 
variety of frequency bands at a single location under the licensee's 
control. It is only after the license grant that the exact 
characteristics of the experiment are revealed via a publicly 
accessible web-based registration system. In addition, the rules 
require a minimum period of 10 days between the registration and the 
commencement of the experiment for public comment. Because a program 
and medical testing license authorizes ongoing experimentation only at 
specified locations that the licensee controls, a transfer of these 
licenses to another party who would likely be at another location is 
problematic and could deprive interested parties who are concerned 
about potential interference of the ability to raise such concerns 
prior to experimentation. Moreover, compliance testing licenses convey 
additional flexibility beyond that provided for program and medical 
testing licenses. Specifically, the Commission notes that compliance 
testing licenses may operate on any frequency (including in restricted 
bands) and are not subject to the web-based prior notification 
requirement. Therefore, it does not find that there would be the same 
kind of significant public benefit in allowing any of these new 
licenses to be transferred as there is under some circumstances for 
conventional experimental licensees.

[[Page 36679]]

Even with respect to conventional licenses, the Commission finds it 
prudent to permit license transfers only in certain circumstances, such 
as where the experimentation cannot be fruitfully continued by the 
licensee; accordingly, such transfers are not permitted without written 
Commission approval.
    7. Finally, the Commission notes that there are practical options 
to ensure the continuation of an experiment being conducted under a 
program, medical testing, or compliance testing license in the event of 
a change in ownership or control of the licensee. First, an 
experimenter may obtain a conventional license for the particular 
experiment. Or, with advance planning, the new owner, assuming it is 
duly qualified, may apply for and obtain one of the new licenses and 
complete the advance registration requirement prior to taking over the 
experimentation (either before or after the change in ownership or 
control of the licensee). And, as indicated, if the Commission were to 
allow assignments or transfers of these new forms of experimental 
license, the detail of the submissions and level of scrutiny that would 
be required--due to the nature of the operations conducted under such 
licenses--would not differ significantly from that which is required 
for obtaining an initial license. Thus, the Commission believes that 
modifying the rule to explicitly prohibit transfer of program, medical 
testing, and compliance testing licenses will result in no harm to any 
qualified license applicant or licensee.

Regulatory Flexibility Certification

    8. The Regulatory Flexibility Act (RFA) \1\ requires that agencies 
prepare a regulatory flexibility analysis for notice-and-comment 
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 Commission hereby certify that this rule 
revision will not have a significant economic impact on a substantial 
number of small entities for the following two reasons: (1) The action 
maintains the status quo for conventional experimental licensees, and 
(2) The Commission finds that prohibiting the assignment or transfer of 
program, medical testing, and compliance testing licenses will have, at 
most, a de minimis effect on small entities, in light of the comparable 
alternatives available, as described in paragraph 7 of the Order on 
Reconsideration.
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    \1\ See 5 U.S.C. 604. 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 (1996) (CWAAA). Title II of the 
CWAAA is the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA).
    \2\ See 5 U.S.C. 605(b).
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    9. Indeed, no party provided any comments indicating either that a 
bar on such transactions would have any adverse effects or that 
permitting such transfers would provide any benefits. The Commission 
will send a copy of this Order, including this certification, to the 
Chief Counsel for Advocacy of the Small Business Administration.

Congressional Review Act

    10. The Commission will send a copy of this Order on 
Reconsideration in a report to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act, see 5 
U.S.C. 801(a)(1)(A).

Ordering Clauses

    11. Pursuant to sections 4(i), 301, and 303 of the Communications 
Act of 1934, as amended, 47 U.S.C. 154(i), 301, and 303, and Sec. Sec.  
1.1 and 1.108 of the Commission's rules, 47 CFR 1.1 and 1.108, this 
Order on Reconsideration is adopted.
    12. Section 5.79 of the Commission's rules, 47 CFR is amended as 
set forth below in the rule changes. Section 5.79 contains a modified 
information collection requirement that requires approval by the Office 
of Management and Budget under the Paperwork Reduction Act, and will 
become effective after the Commission publishes a notice in the Federal 
Register announcing such approval and the relevant effective date.

List of Subjects in 47 CFR Part 5

    Radio, Reporting and recordkeeping requirements.

Federal Communications Commission.
Gloria J. Miles,
Federal Register Liaison.

Rule Changes

    For the reasons set forth in the preamble the Federal 
Communications Commission amends 47 CFR part 5 as follows:

PART 5--EXPERIMENTAL RADIO SERVICE

0
1. The authority citation for part 5 continues to read as follows:

    Authority: Secs. 4, 302, 303, 307, 336 48 Stat. 1066, 1082, as 
amended; 47 U.S.C. 154, 302, 303, 307, 336. Interpret or apply sec. 
301, 48 Stat. 1081, as amended; 47 U.S.C. 301.

0
2. Section 5.79 is revised to read as follows:


Sec.  5.79  Transfer and assignment of station authorization for 
conventional, program, medical testing, and compliance testing 
experimental radio licenses.

    (a) A station authorization for a conventional experimental radio 
license, the frequencies authorized to be used by the grantee of such 
authorization, and the rights therein granted by such authorization 
shall not be transferred, assigned, or in any manner either voluntarily 
or involuntarily disposed of, unless the Commission decides that such a 
transfer is in the public interest and gives its consent in writing.
    (b) A station authorization for a program, medical testing, or 
compliance testing experimental radio license, the frequencies 
authorized to be used by the grantees of such authorizations, and the 
rights therein granted by such authorizations shall not be transferred, 
assigned, or in any manner either voluntarily or involuntarily disposed 
of.

[FR Doc. 2013-13675 Filed 6-18-13; 8:45 am]
BILLING CODE 6712-01-P