[Federal Register Volume 80, Number 86 (Tuesday, May 5, 2015)]
[Notices]
[Pages 25663-25668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-10140]
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DEPARTMENT OF COMMERCE
National Telecommunications and Information Administration
First Responder Network Authority
[Docket Number: 140821696-5400-03]
RIN 0660-XC012
Further Proposed Interpretations of Parts of the Middle Class Tax
Relief and Job Creation Act of 2012
AGENCY: First Responder Network Authority, National Telecommunications
and Information Administration, U.S. Department of Commerce.
ACTION: Notice and request for comments.
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SUMMARY: The First Responder Network Authority (``FirstNet'') publishes
this Third Notice to request public comment on certain proposed
interpretations of its enabling legislation that will inform, among
other things, consultation, forthcoming requests for proposals,
interpretive rules, and network policies. This Third Notice responds to
comments and further clarifies proposed interpretations related to the
definition and scope of the term ``public safety entity'' as used in
FirstNet's enabling legislation and as discussed in a previous FirstNet
Notice published on September 24, 2014. With the benefit of the
comments received from this Third Notice, FirstNet may proceed to
implement these or other interpretations with or without further
administrative procedure.
DATES: Submit comments on or before June 4, 2015.
ADDRESSES: The public is invited to submit written comments to this
Third Notice. Written comments may be submitted electronically through
www.regulations.gov or by mail (to the address listed below). Comments
received related to this Notice will be made a part of the public
record and will be posted to www.regulations.gov without change.
Comments should be machine readable and should not be copy-protected.
Comments should include the name of the person or organization filing
the comment as well as a page number on each page of the submission.
All personally identifiable information (e.g., name, address)
voluntarily submitted by the commenter may be publicly accessible. Do
not submit confidential business information or otherwise sensitive or
protected information.
FOR FURTHER INFORMATION CONTACT: Eli Veenendaal, First Responder
Network Authority, National Telecommunications and Information
Administration, U.S. Department of Commerce, 12201 Sunrise Valley
Drive, M/S 243, Reston, VA 20192; 703-648-4167; or
[email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction and Background
The Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L.
112-96, Title VI, 126 Stat. 256 (codified at 47 U.S.C. 1401 et seq.))
(the ``Act'') established the First Responder Network Authority
(``FirstNet'') as an independent authority within the National
Telecommunications and Information Administration (``NTIA''). The Act
establishes FirstNet's duty and responsibility to take all actions
necessary to ensure the building, deployment, and operation of a
nationwide public safety broadband network (``NPSBN'').\1\
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\1\ 47 U.S.C. 1426(b).
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As detailed in our Notice entitled ``Proposed Interpretations of
Parts of the Middle Class Tax Relief and Job Creation Act of 2012'' (79
FR 57058, September 24, 2014) (herein ``the First Notice''),\2\ we
preliminary concluded that key issues relating to the responsibilities
and opportunities of FirstNet, other federal agencies, States and
territories, and state, federal local, and tribal public safety
entities, among other stakeholders, turn on interpretation of the Act's
terms and provisions.
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\2\ All responses to the First Notice are publically available
at www.regulations.gov.
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More specifically, we analyzed the complex definition of the term
``public safety entity'' under the Act.\3\ The primary ramification of
falling within this definition is that a public safety entity is served
by FirstNet directly, rather than as a commercial customer of a
secondary user of FirstNet's spectrum. In particular, under our
preliminary interpretations of network elements in the First Notice,
public safety entities would be served by the FirstNet core network,
through either a FirstNet radio access network (``RAN'') or the RAN of
a State that has chosen to assume responsibility for RAN buildout and
operation.\4\
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\3\ 79 FR 57060 (September 24, 2014).
\4\ 79 FR 57059.
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Generally speaking, the Act defines public safety entities by the
types of services they provide (i.e., whether they provide public
safety services).\5\ Those public safety services are further defined
by, among other things, the nature of the services (such as the
protection of life, health or property), but also the types of specific
entities providing the services (such as emergency response
providers).\6\ The end result is a complex, multi-layered definition of
public safety entity.
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\5\ See 47 U.S.C. 1401(26).
\6\ See id. Sec. 1401(27).
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Our analysis in the First Notice included the virtually self-
evident preliminary conclusion that the definition of public safety
entity includes traditional first responders--police, fire, and EMS.\7\
No commenter disagreed with this preliminary conclusion. The Act's
definition of public safety entity, however, is expressly not limited
to such traditional first responders. Thus, in the First Notice, we
also analyzed the definition with regard to which entities beyond
traditional first responders would qualify as public safety
entities.\8\
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\7\ 79 FR 57061 (September 24, 2014).
\8\ 79 FR at 57060-2.
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The Act's public safety entity definition raises three primary
interpretive questions regarding non-traditional first responders:
1. Whether an ``entity'' should be defined as a group or authority
of a certain minimum size or nature (such as an entire government
agency or department) or can an ``entity'' include a sub-group or an
individual;
2. Whether and to what extent an ``entity'' that provides public
safety services some, but not all the time, can qualify as a public
safety entity; and
3. Whether and to what extent an ``entity'' that provides services
close or related to, but not identical to
[[Page 25664]]
traditional public safety services can qualify as a public safety
entity.
These questions are not entirely severable from each other given the
structure of the public safety entity definition in the Act.
In general, our preliminary interpretations in the First Notice
permitted a wide variety of entities to qualify as public safety
entities.\9\ Although our interpretations were met with strong support
by the majority of respondents,\10\ some comments reflected a concern
that we had expanded beyond the appropriate interpretation of the Act
to include entities--such as utilities--that should not be given direct
access to the network as public safety entities.\11\ While we continue
to preliminarily conclude that the Act grants FirstNet discretion to
consider a broad range of users consistent with FirstNet's mission,
given the complexity of the Act's public safety entity definition and
its importance to the functioning of the network and FirstNet's
financial sustainability under the Act, we, in this Third Notice,
propose a refined preliminary interpretation and seek additional
comments regarding the definition.\12\
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\9\ See 79 FR at 57060-2.
\10\ We note FirstNet's preliminary interpretation that it has
statutory discretion to consider a broad range of users including
those that offer public safety services that satisfy the
Communication Act or Homeland Security Act was strongly supported in
responses to the First Notice. See e.g., National Public Safety
Telecommunications Council (``NPSTC'') Comments at 6 available at
http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0026;
see also e.g., National Association of State Chief Information
Officers (``NASCIO'') Comments at 1 available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0066; see also
e.g., Comments of the State of Florida at 5 available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0013; see also
e.g., Comments of the State of California at 2 available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0037.
\11\ See AT&T Service, Inc. (``AT&T''), Comments, at 20,
available at http://www.regulations.gov/#!documentDetail;D=NTIA-
2014-0001-0034; See also Association of Public Safety Communications
Officials International (``APCO'') Comments, at 4-6 available at
http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0029.
\12\ We also note the definition of public safety entity is a
critical component of both (1) the acquisition planning process as
it provides key inputs into understanding the resources that will be
derived from and available to qualifying public safety entities and
(2) the successful implementation of our mission that, among other
things, will require the promotion and adoption of the NPSBN by
public safety entities.
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II. Statutory Definition of Public Safety Entity
A ``public safety entity'' is defined in section 6001(26) of the
Act as an ``entity that provides public safety services.'' \13\
Further, under the Act, the term ``public safety services'':
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\13\ 47 U.S.C. 1401(26).
(A) Has the meaning given the term in section 337(f) [of the
Communications Act of 1934 \14\ (``Communications Act'')]; and (B)
includes services provided by emergency response providers, as that
term is defined in [section 2 of the Homeland Security Act of 2002 \15\
(``HSA'')].\16\
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\14\ Id. Sec. 337(f).
\15\ 6 U.S.C. 101(6).
\16\ 47 U.S.C. 1401(27) (emphasis added).
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Section 337(f) of the Communications Act defines ``public safety
services'' to mean services:
(A) The sole or principal purpose of which is to protect the safety
of life, health or property;
(B) that are provided by (i) State or local government entities, or
(ii) by non-governmental organizations that are authorized by a
governmental entity whose primary mission is the provision of such
services; and
(C) that are not made commercially available to the public by the
provider.\17\
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\17\ Id.Sec. 337(f)(1).
Under the HSA, ``emergency response providers'' include ``Federal,
State, and local governmental and nongovernmental emergency public
safety, fire, law enforcement, emergency response, emergency medical
(including hospital emergency facilities), and related personnel,
agencies, and authorities.'' \18\
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\18\ 6 U.S.C. 101(6).
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III. Legal Scope Versus Discretion in Implementing the Definition of
Public Safety Entity
In the First Notice, we noted that, if we determine it is
reasonable and appropriate to do so in support of our mission, we may
as a policy matter decide to narrow the scope of users we actually
serve relative to those we can legally serve under the definition of
public safety entity.\19\ Some commenters were troubled by this
concept, indicating concern that FirstNet might elevate policy goals
above the text and purpose of the Act and that FirstNet must implement
the Act as written.\20\
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\19\ 79 FR 57060 (September 24, 2014).
\20\ See AT&T Comments, at 12, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0034.
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We believe, however, that FirstNet's discretion as to which
entities to allow onto the network is contemplated by and important
under the framework of the Act. For example, given the finite nature of
spectrum resources, the exercise of such discretion is necessary to
ensure the proper functioning of the network, in addition to FirstNet's
economic self-sustainability for the benefit of public safety.
Moreover, such discretion is necessary to give meaning to, among other
things, FirstNet's obligation to consult with regional, State, tribal,
and local jurisdictions regarding the ``assignment of priority and
selection of entities seeking access to or use of the [network].'' \21\
If FirstNet did not possess this discretion, the stated consultation
would be meaningless as FirstNet would simply be required to provide
access to and use of the network to any entity that met the public
safety entity definition regardless of the views of the consulted-with
parties.\22\
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\21\ 47 U.S.C. 1426(c)(2)(A)(vi) (emphasis added).
\22\ We note that, as is discussed infra, the Communications Act
prong of the public safety entity definition does provide for
governmental entities to designate nongovernmental entities as
public safety entities under certain criteria. The consultation
obligation of 47 U.S.C. 1426(c)(2)(A)(vi) is not, however, limited
to consultations on the selection of ``nongovernmental'' entities,
but rather entities in general. Thus, we believe the consultation
obligation must apply to all entities and that FirstNet must
therefore have discretion with regard to all such entities.
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Similarly, given the Act's express consultation obligations with
respect to FirstNet's assignment of priority to entities using the
network--which could effectively give FirstNet the ability to
deprioritize entities even if they qualified under the definition--it
would appear to make little sense for Congress to have intended a
purely mechanical application of the public safety entity
definition.\23\ Nor does the wording of the Act appear to suggest that
FirstNet's consultation obligations are solely with respect to its
legal interpretation of the term public safety entity. For example,
FirstNet is required to establish wide-ranging network policies,
including regarding the ``practices and procedures of the entities
operating on and the personnel using'' the network.\24\
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\23\ See 47 U.S.C. 1426(b)(1); see also id. Sec. 1426(c)(2)
(describing FirstNet's consultation requirements under the Act).
\24\ Id. Sec. 1426(c)(1)(E)(ii).
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Finally, although we preliminarily conclude that FirstNet may have
discretion within the bounds of the public safety entity definition, we
did not mean to imply in the First Notice any intent or legal authority
to expand beyond the definition of public safety entity. We merely
stated that FirstNet may ``decide to narrow the scope of users it
actually serves relative to those
[[Page 25665]]
it can legally serve.'' \25\ We seek comments on the above
interpretations.
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\25\ 79 FR 57060 (September 24, 2014) (emphasis added).
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IV. Public Safety Entity Definition Overview
The public safety entity definition is dependent on the definition
of public safety services, which is in turn dependent on two separate
definitions from statutes outside the Act. Before trying to draw
precise boundaries around any of these terms it is helpful to look at
the overall definitional structure, particularly how the two extra-Act
definitions interact within the definition of public safety services.
The term ``public safety services'':
(A) Has the meaning given the term in section 337(f); and
(B) includes services provided by emergency response providers, as
that term is defined in the HSA.\26\
\26\ 47 U.S.C. 1401(27) (emphasis added).
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In the First Notice, we ultimately interpreted the language of the Act
as creating an either-or test. That is, the two prongs (``(A)'' and
``(B)'' above) of the definition create a combined list of services,
and a service that appears on list ``(B)'' is a ``public safety
service'' independent of those on list ``(A)''.\27\ We continue to
believe that the ``and (B) includes'' language in the Act necessitates
this result. Regardless of whether the word between the two prongs is
``and'' or ``or,'' the preamble combined with the second prong reads:
``The term `public safety services' . . . includes services provided by
emergency response providers. . . .''
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\27\ 79 FR 57060 (September 24, 2014).
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Some commenters objected to this formulation, essentially arguing
that the addition of the second prong ``(B)'' was merely to clarify the
scope of prong ``(A)'' and did not expand it.\28\ Other commenters
thought that, although prong ``(B)'' did expand ``(A)'', those services
included in prong ``(B)'' were of a lesser, more supplementary nature
than those in ``(A)'' as a result of the ``has the meaning'' language
in ``(A)'' in contrast to the ``includes'' language in ``(B)''.\29\
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\28\ See AT&T Comments, at 16-7, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0034.
\29\ See APCO Comments, at 6, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0029.
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We continue to preliminarily conclude, however, that the more
natural reading of the definition is as we concluded in the First
Notice. Among other reasons, there are services expressly included in
the second prong of the definition that are not included in the first.
The HSA definition of public safety services (prong ``(B)'') includes
``Federal . . . personnel, agencies, and authorities.'' \30\ The
section 337(f) definition of public safety services (prong ``(A)'')
includes only ``State or local'' governmental entities.\31\ Thus, the
HSA definition adds an element--Federal personnel, agencies, and
authorities--that is not contained within the section 337(f)
definition.
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\30\ 6 U.S.C. 101(6).
\31\ 47 U.S.C. 337(f)(1).
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There are other similar additions to the section 337(f) definition
provided by the HSA prong, such as ``nongovernmental'' entities that do
not require separate authorization and hospital emergency facilities,
which would not satisfy the section 337(f) requirement that public
safety services ``are not made commercially available to the public by
the provider.'' \32\ In addition, the ``sole and principle purpose''
requirement of section 337(f), as discussed below, is not included in
the HSA prong. Accordingly, if Congress were merely clarifying the
definition in the section 337(f) prong, it would not have included an
HSA prong that clearly expanded the definition beyond the boundary of
the section 337(f) prong.
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\32\ See 6 U.S.C. 101(6); 47 U.S.C. 337(f)(1).
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With regard to supplementing the section 337(f) definition,
Congress did not qualitatively characterize services in the second
prong other than to say that the definition ``includes'' services in
that prong, and thus we cannot find justification for treating them
differently or as lesser-included services.\33\ That Congress used the
phrase ``has the meaning'' with regard to section 337(f) and not with
the HSA prong does not sufficiently justify or guide us to such
disparate treatment of the services under the HSA prong.
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\33\ 47 U.S.C. 1401(27).
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As a result, we preliminarily conclude that the two prongs form a
combined list, as discussed above, and seek further comments on this
preliminary conclusion.
V. Requirement To Provide Public Safety Services
A public safety entity is defined in section 6001(26) of the Act as
an ``entity that provides public safety services.'' \34\ In the First
Notice, we preliminarily concluded that the Act does not include any
express language requiring a minimum amount or frequency of providing
such services, but merely requires that an entity provide such
services.\35\
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\34\ Id. Sec. 1401(26).
\35\ See 79 FR 57060 (September 24, 2014).
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An example of where Congress required such a minimum amount of
services is contained in the Communications Act prong of the definition
of public safety services, where Congress used the phraseology ``a
governmental entity whose primary mission is the provision of such
services.'' \36\ If Congress had used this phraseology in the Act--for
example, ``public safety entity means an entity whose primary mission
is the provision of public safety services''--it would have been clear
that the provision of a minimum amount of such services were necessary
for an entity to qualify.\37\
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\36\ 47 U.S.C. 337(f)(1).
\37\ It is generally implicit that if an organization's primary
mission is the provision of such services then the organization
likely provides a great amount of such services.
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This contrast is actually evident entirely within the
Communications Act definition of public safety services itself. In
describing the entities under section 337(f) of the Communications Act
that must be providing a service for it to constitute a public safety
service, Congress uses the phrase ``that are provided by . . . State or
local government entities.'' In describing the entities that are
permitted to authorize a nongovernmental entity to provide such
services, however, Congress used the phrase ``a governmental entity
whose primary mission is the provision of such services.'' \38\ Thus,
Congress used the ``primary mission'' limitation to impose a higher
standard to qualify those entities allowed to authorize nongovernmental
entities, but imposed no such standard on the governmental entities
that could provide public safety services.\39\ No such higher standard
was used in the Act with regard to public safety entities.
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\38\ 47 U.S.C. 337(f)(1) (emphasis added).
\39\ One commenter appears to mistakenly cite the ``primary
mission'' limitation as applying to the nongovernmental
organizations, rather than the governmental entities that are
permitted to authorize nongovernmental organizations as described in
47 U.S.C. 337(f)(1). See AT&T Comments, at 16, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0034.
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Some commenters, however, advocated that the public safety entity
definition should be read more holistically under the Act, rather than
treating each portion of the definition--such as each services prong--
as a separate interpretation that flowed up to the next stage.\40\
These comments reflect
[[Page 25666]]
the difficulty in interpreting the public safety entity definition
where the entity in question may not provide public safety services all
the time or through all its personnel.
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\40\ We note that this does not have to be the case. For
example, one entity could provide a service part time that another
provides full time. In other words, even if section 337(f) of the
Communications Act imposed a primary mission requirement on the
entity providing a service (which it does not), it is merely
defining a service, and some other entity may only provide such a
service part time.
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For example, in the context of the Communications Act definition of
public safety services, we noted in the First Notice that the FCC
interpreted the provision to qualify services provided by governmental
entities, such as city planning or transportation departments, so long
as the services being provided had as their sole or principal purpose
the protection of life, safety, or property.\41\ That is, under the
FCC's interpretation of section 337(f), with which we agree, an entity
that does not always or even most of the time provide services whose
sole or principal purpose is the protection of life, safety, or
property, may nevertheless provide qualifying ``public safety
services'' when such an entity provides services that meet the sole or
principal purpose test.\42\ However, unlike the context of the
Communications Act definition of public safety services--where services
can vary day-to-day or employee-to-employee--FirstNet is faced with the
question under the Act as to whether an entity ever qualifies as a
public safety entity by virtue of providing a public safety service in
only some instances. Further, FirstNet must then address the question
of whether such entity should always have primary access to or use of
the FirstNet network as a result. This question applies regardless of
whether the entity in question is an organization or an individual.
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\41\ See Service Rules for the 698-746, 747-762 and 777-792 MHz
Bands, Fourth Report and Order, 26 FCC Rcd. 10799 (F.C.C. July 21,
2011) (Fourth Report and Order).
\42\ 79 FR 57061 (September 24, 2014) (stating ``FirstNet gives
deference to the conclusions reached by the Commission in its
interpretation of section 337(f)(1) and as independent entity owes
no such deference) (emphasis added). In response to this preliminary
interpretation, one commenter stated that ``FirstNet's reliance on
an FCC Order interpreting section 337 is misplaced, and FirstNet
certainly need not afford the FCC `deference' in its interpretation.
As an `independent authority,' FirstNet owes no such deference.''
See APCO Comments, at 5, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0029. However, as an independent
authority, we simply agree with FCC interpretation. The FCC
interpretation predated the Act and thus Congress is assumed to have
been aware of the interpretation and could have limited the Act
accordingly if it did not agree with the FCC interpretation.
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In the context of an organization, FirstNet must also determine
whether the organization qualifies as a public safety entity as a whole
where in some or all instances the provision of public safety services
is by only some employees or members of the organization. In other
words, FirstNet must determine whether public safety entity status
should apply to all employees or members of an organization if only
some such employees or members provide public safety services.
In the First Notice, we preliminarily concluded that as long as an
entity provided a non-de minimis amount of public safety services, even
if it provides other services, it will qualify as a public safety
entity under the Act.\43\ We also preliminarily concluded that this
interpretation resulted in the entity as a whole qualifying as a public
safety entity even if only some employees of the entity provided such
services.\44\ After review of the responses to the First Notice, we
clarify below our preliminary interpretation of the Act in this regard,
and seek further comments.
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\43\ 79 FR 57060 (September 24, 2014).
\44\ 79 FR at 57062.
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1. Whether an Individual or Subgroup of an Organization Ever Qualifies
as a Public Safety Entity
As an initial matter, we restate our preliminary conclusion from
the First Notice here, for the reasons stated therein and below, that
individuals such as volunteer firemen or employees of an organization
(in addition to or rather than an organization as a whole) may qualify
as public safety entities if they provide or are reasonably likely to
provide public safety services. This preliminary interpretation applies
whether the individual performs services that qualify under the section
337(f) or the HSA prong of the definition of public safety services.
Under the HSA prong of the definition, ``personnel'' (as contrasted
with ``agencies . . . and authorities'') are expressly included as
service providers, and thus we believe it is reasonable to conclude
that an ``entity'' under the Act performing such services should be
interpreted to include individual ``personnel.'' \45\ Although an
organization could theoretically perform the same services as
individual personnel, we believe it is reasonable under the structure
and purposes of the Act to include individual personnel such as
volunteer firefighters within the term ``entity.'' This interpretation
is also supported by the Act's inclusion, via the HSA prong, of
``hospital emergency facilities'' but not hospitals in their entirety
as emergency response providers. Congress contemplated that a group of
employees smaller than a larger organization can provide public safety
services, and thus in the context of the Act constitute public safety
entities.
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\45\ 6 U.S.C. 101(13) (stating the term means officers and
employees).
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The section 337(f) prong of the public safety services definition
speaks only in terms of ``State or local government entities'' or
``non-governmental organizations.'' This raises the question as to
whether an individual or group smaller than the whole ``entity'' or
``organization'' can provide qualifying services and thus constitute
public safety entities under the Act via the section 337(f) prong. In
section 337(f), however, Congress included services provided by
entities or organizations whose mission was not ``primar[ily]'' the
provision of services the sole or principle purposes of which is the
protection of life, health, or property. That is, these entities or
organizations by definition may sometimes have other primary missions,
but occasionally as a whole or through only some employees provide
qualifying services. As a result, we preliminarily conclude that under
the section 337(f) prong a public safety entity under the Act can
include at least a group of employees smaller than a larger
organization.\46\ We seek comments on the above interpretations and
their collective effect on the definition of public safety entity.
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\46\ See Fourth Report and Order (discussing parts of
organizations using services under the section 337(f) prong).
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2. Overall Framework for Determining Public Safety Entities
As an overall framework for qualifying public safety entities, we
first preliminarily conclude that where an organization as a whole is
charged with providing, and does provide public safety services, the
organization qualifies as a public safety entity and all members of the
organization can (following consultation and within the discretion
discussed in part III of this Third Notice) be given access to or use
of the network under the Act. This preliminary conclusion is fairly
clear under the Act and would apply to traditional first responder
organizations, among others.
Next, with respect to organizations that do not meet the above
criteria, we preliminarily conclude that those members of such an
organization that provide or are reasonably likely to provide public
safety services for a non-de minimis amount of time, qualify as public
safety entities under the Act and can (following consultation and
within the discretion discussed in part III of
[[Page 25667]]
this Third Notice) be given access to or use of the network under the
Act. For purposes of this interpretation, we preliminarily conclude
that those members of such an organization that materially contribute
to or help enable or support the provision of such public safety
services--including, for example, dispatchers, technicians, and
supervisors--by other members of the organization would also qualify as
public safety entities. Interoperable communications with these
enabling or support personnel could be critically important to the
provision of public safety services by the primary providers in the
organization, and thus we believe it is reasonable to include the
enabling and support personnel within the definition.
We note that our preliminary interpretations are by necessity made
based on the specific language, context and purpose of the Act. We must
therefore interpret the definition of public safety entity by reference
to the aggregation of services defined both by the section 337 and HSA
prongs of the public safety services definition under the Act, rather
than just either prong on a stand-alone basis, as may be required by
other agencies in different contexts. In this regard, our
interpretation as set forth above would apply regardless of whether the
services provided qualified as public safety services under the section
337(f) prong or the HSA prong of the definition in the Act. For
example, under the section 337(f) prong, those field and operations
personnel of a governmental or authorized nongovernmental entity that
provide emergency services the sole or principal purpose of which is to
protect the safety of life, health or property would qualify as public
safety entities, along with any necessary dispatchers etc.\47\
Additionally, those same field and operations personnel would also
qualify as a public safety entity under the HSA prong because the
nature of services being provided in response to such an incident would
typically be the type of services performed directly by an emergency
response provider or, at minimum, related personnel supporting such a
response provider. For example, utility personnel removing dangerous
downed electrical wires to permit firefighters to access victims in a
car would be deemed public safety entities.
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\47\ For a discussion of utilities as public safety entities
under the Act, see part VI infra.
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Under this refined preliminary interpretation, however, where an
organization as a whole, such as a private utility, is not charged with
providing public safety services, the entire organization would not
necessarily qualify as a public safety entity. The extent to which the
individuals or subgroups within the organization providing public
safety services would qualify, or whether such individuals or subgroups
are always permitted on the network, would be determined within
FirstNet policies based on, among other factors, the advantages to the
public and public safety of having such individuals always supported by
and accessible on the network, the impact on FirstNet's financial
sustainability as required by the Act and our consultations under the
Act with the FirstNet Public Safety Advisory Committee, local first
responders, and local jurisdictions.\48\
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\48\ Some commenters expressed concern that the spectrum and
network capacity allocated to public safety under the Act could be
diluted in some way because of the inclusion of non-traditional
first responders. See e.g., FirstNet Colorado Response to the
Proposed Interpretations of Parts of the Middle Class Tax Relief and
Job Creation Act of 2012, at 9, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0062; State of
Florida Comments, at 9, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0013. However, we believe the
priority and preemption features of the network will ensure that
traditional first responders will always have primary use of the
network.
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We recognize that implementation of the above framework may require
certifications or other evidence of eligibility of certain customers or
groups within organizations. Customer eligibility requirements for
specialized services, including communications services, exist and are
managed today in the industry. Nevertheless, in addition to comments
regarding the above refined preliminary interpretation itself, we seek
comments on the appropriate mechanisms for implementing this
interpretation assuming it is ultimately adopted.
VI. Non-Traditional First Responders as Public Safety Entities
In the First Notice, we preliminarily concluded that many types of
non-traditional first responders could qualify as public safety
entities because they provided public safety services.\49\ For example,
we generally agreed with the examples of public safety services cited
by the FCC in its interpretation of section 337(f) and thus the
entities providing those services would, under our preliminary
interpretation, qualify as public safety entities.\50\ These examples
included a range of services, provided by governmental entities, ``the
sole or principal purpose of which is to protect the safety of life,
health or property,'' including:
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\49\ We recognize that separate priority and preemption
parameters must be established even among the various entities,
including traditional and non-traditional entities, which may
qualify as a public safety entity under the Act and be allowed to
use the NPSBN. We intend, as discussed in the First Notice, in the
future and following appropriate consultations, to fully address the
priority and preemptive use of and access to the NPSBN among the
various user groups.
\50\ 79 FR 57061 (2014).
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1. Entities supporting airport operations when ``ensuring the
routine safety of airline passengers, crews, and airport personnel and
property in a complex air transportation environment.'' \51\
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\51\ Fourth Order and Report at 10808.
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2. Transportation departments in the design and maintenance of
roadways, the installation and maintenance of traffic signals and
signs, and other activities that affect the safety of motorists and
passengers.\52\
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\52\ Id. at 10808.
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3. Entities protecting the safety of animals, homes, and city
infrastructure, particularly in crisis situations.\53\
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\53\ Id. at 10809.
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The FCC's interpretation of section 337(f) predated passage of the
Act, and thus Congress is presumed to have knowledge of the
interpretation and could have taken steps to modify the definition in
the Act in light of the FCC's interpretation, but did not.\54\ In the
First Notice, we sought comment on other entities providing services
that would qualify as public safety services under the section 337(f)
prong, and received examples such as:
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\54\ See Lorillard, Div. of Loew's Theatres, Inc. v. Pons, 434
U.S. 575, 580-581 (U.S. 1978) (explaining that ``Congress is
presumed to be aware of an administrative or judicial interpretation
of a statute and to adopt that interpretation when it re-enacts a
statute without change. So too, where, as here, Congress adopts a
new law incorporating sections of a prior law, Congress normally can
be presumed to have had knowledge of the interpretation given to the
incorporated law, at least insofar as it affects the new statute'');
see also Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8
(1975); NLRB v. Gullett Gin Co., 340 U.S. 361, 366 (1951); National
Lead Co. v. United States, 252 U.S. 140, 147 (1920).
1. Public Transit Agencies and Departments
2. Public Work Departments
3. Public electric and water utilities
4. Health Departments
5. Parks and Recreation Departments \55\
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\55\ See, e.g., Illinois Public Safety Broadband Working Group
Comments, at 6-9, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0004; see also State of Idaho
Comments, at 1-2, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0063; see also Vermont State
Wireless Commission Comments, at 1, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0061.
Because both the section 337(f) and HSA prong of the public safety
services definition include non-governmental entities in addition to
governmental
[[Page 25668]]
entities, we also sought comment on such non-governmental entities that
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would qualify and received similar examples such as:
1. Transportation Authorities
2. Electric and Water Utilities
3. Non[hyphen]governmental and private, and non[hyphen]profit and
for[hyphen]profit organizations (e.g., health care institutions,
ambulance companies, independent firefighting corporations)
4. Non[hyphen]government disaster relief and aid organizations (e.g.,
American Red Cross, Salvation Army)
5. Education Institutions \56\
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\56\ See, e.g., State of Washington Interoperability Executive
Committee Comments, at 1-2, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0055; see also State of Maine
ConnectME Authority Comments, at 2, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0017; see also
e.g, State of Oregon Comments, at 2-3, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0065.
In all cases, however, as discussed above, FirstNet is obligated to
consult with regional, State, tribal, and local jurisdictions regarding
the ``selection of entities seeking access to or use of the
[network].'' \57\ Although the First Notice (and this Third Notice)
contributes to such consultations, FirstNet intends to conduct
additional, direct consultations with State points of contact
(``SPOCs'') regarding the selection of entities permitted on the
network. FirstNet can then exercise the discretion discussed in Part
III of this Notice in light of such consultations within the outer
legal boundaries FirstNet draws around the definition of public safety
entity.
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\57\ 47 U.S.C. 1426(c)(2)(A)(vi).
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We preliminarily conclude, however, that subject to such
consultation and in accordance with our above analyses in this Third
Notice, the personnel or subgroups within a non-governmental
organization qualify as public safety entities under the Act to the
extent such personnel or subgroups provide public safety services as
defined under either the section 337(f) prong or the HSA prong of the
public safety services definition. This is merely stating the statutory
framework under the Act with the addition of our conclusions above
regarding whether personnel or subgroups can qualify as ``entities''
under the Act.
Regarding the section 337(f) prong, personnel, or subgroups of non-
governmental organizations, if authorized under the terms of that
section, provide qualifying public safety services under the Act if
they provide services ``the sole or principal purpose of which is to
protect the safety of life, health or property'' and those services are
not ``made commercially available to the public.'' We preliminarily
conclude, for example, that private utility workers that remove a live
electrical wire touching a car at an accident scene is performing a
service the principal purpose of which is to protect the safety of
life.\58\ We also preliminarily conclude that such a service is not one
that is typically ``commercially available,'' albeit incident to or as
a result of a commercially available service of providing electricity.
In the context of the Act, then, these services would qualify as public
safety services, and therefor the workers providing such services would
qualify as public safety entities as defined in the Act.\59\ We seek
comments on these preliminary conclusions.
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\58\ We note that most utilities are non-governmental entities.
As such, we anticipate relying heavily on the authorization of
personnel from such entities by ``primary mission'' first responders
under the section 337(f) prong in determining which personnel should
gain access to the network as public safety entities.
\59\ We note that the FCC has not independently determined
whether utilities provide ``public safety services'' under section
337(f) for purposes of eligibility for direct licensing of spectrum
in the 700 MHz public safety band, including the portion of that
spectrum designated for public safety narrowband use. FirstNet's
interpretation of section 337(f) and its determination with regard
to ``public safety entities'' eligible as end users of the network,
including utilities, is based on the specific requirements of the
Act in their totality and is not intended to modify any
interpretation or suggest any future treatment of section 337(f) by
the FCC.
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As mentioned, however, under the section 337(f) prong, such a
private entity would have to be ``authorized by a governmental entity
whose primary mission is the provision of such services'' to qualify as
providing public safety services. We preliminarily conclude that in our
State and local consultations under the Act regarding the ``entities
seeking access to or use of the [network],'' traditional governmental
fire, police, and EMS entities, as examples, may authorize non-
governmental entity personnel and subgroups, and thus if such personnel
or subgroups also meet the criteria described in part V. of this Third
Notice, they would be public safety entities under the Act.\60\ We seek
comments on this preliminary conclusion and the appropriate method and
duration of such authorizations.
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\60\ See also First Report and Order and Third Notice of
Proposed Rulemaking, 14 FCC Rcd. 152,187-188.
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Under the HSA prong, no such authorizations of non-governmental
entities are necessary. Thus, if personnel or subgroups of non-
governmental organizations qualify under the HSA prong as ``emergency
response . . . personnel'' or personnel ``related'' to such emergency
response personnel, they would also qualify as public safety entities
under the Act. We thus preliminarily conclude, for example, that a
private utility worker that removes a live electrical wire touching a
car at an accident scene is performing a service typically provided by
an emergency response provider, or, at a minimum, by related personnel
supporting such a response provider. We also preliminarily conclude
that, subject to further consultations mentioned above regarding
entities seeking access to the network, non-governmental personnel
involved in or supporting such emergency response activities, such as
the utility worker described above removing an electrical wire, can
legally qualify under the Act as public safety entities. We seek
comments on these preliminary conclusions.
VII. Ex Parte Communications
Any non-public oral presentation to FirstNet regarding the
substance of this Second Notice will be considered an ex parte
presentation, and the substance of the meeting will be placed on the
public record and become part of this docket. No later than two (2)
business days after an oral presentation or meeting, an interested
party must submit a memorandum with additional information as
necessary, or to request that the party making the filing do so, if
FirstNet believes that important information was omitted or
characterized incorrectly. Any written presentation provided in support
of the oral communication or meeting will also be placed on the public
record and become part of this docket. Such ex parte communications
must be submitted to this docket as provided in the ADDRESSES section
above and clearly labeled as an ex parte presentation. Federal entities
are not subject to these procedures.
Dated: April 27, 2015.
Jason Karp,
Acting Chief Counsel, First Responder Network Authority.
[FR Doc. 2015-10140 Filed 5-4-15; 8:45 am]
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