[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]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \1\ 47 U.S.C. 1426(b).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \2\ All responses to the First Notice are publically available 
at www.regulations.gov.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \3\ 79 FR 57060 (September 24, 2014).
    \4\ 79 FR 57059.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \5\ See 47 U.S.C. 1401(26).
    \6\ See id. Sec.  1401(27).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \7\ 79 FR 57061 (September 24, 2014).
    \8\ 79 FR at 57060-2.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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'':
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \14\ Id. Sec.  337(f).
    \15\ 6 U.S.C. 101(6).
    \16\ 47 U.S.C. 1401(27) (emphasis added).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \18\ 6 U.S.C. 101(6).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \25\ 79 FR 57060 (September 24, 2014) (emphasis added).
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

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. . . .''
---------------------------------------------------------------------------

    \27\ 79 FR 57060 (September 24, 2014).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \30\ 6 U.S.C. 101(6).
    \31\ 47 U.S.C. 337(f)(1).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \32\ See 6 U.S.C. 101(6); 47 U.S.C. 337(f)(1).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \33\ 47 U.S.C. 1401(27).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \34\ Id. Sec.  1401(26).
    \35\ See 79 FR 57060 (September 24, 2014).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \43\ 79 FR 57060 (September 24, 2014).
    \44\ 79 FR at 57062.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \45\ 6 U.S.C. 101(13) (stating the term means officers and 
employees).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \46\ See Fourth Report and Order (discussing parts of 
organizations using services under the section 337(f) prong).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \47\ For a discussion of utilities as public safety entities 
under the Act, see part VI infra.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \51\ Fourth Order and Report at 10808.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \52\ Id. at 10808.
---------------------------------------------------------------------------

    3. Entities protecting the safety of animals, homes, and city 
infrastructure, particularly in crisis situations.\53\
---------------------------------------------------------------------------

    \53\ Id. at 10809.
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \57\ 47 U.S.C. 1426(c)(2)(A)(vi).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \60\ See also First Report and Order and Third Notice of 
Proposed Rulemaking, 14 FCC Rcd. 152,187-188.
---------------------------------------------------------------------------

    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]
 BILLING CODE 3510-TL-P