[Federal Register Volume 83, Number 149 (Thursday, August 2, 2018)]
[Rules and Regulations]
[Pages 37760-37763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-16512]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 22

[WT Docket Nos. 12-40, 16-138; RM-11510, RM-11660; FCC 18-92]


Cellular Service, Including Changes in Licensing of Unserved Area

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) adopts revised rules governing the 800 MHz Cellular 
Radiotelephone (Cellular) Service and other commercial mobile radio 
services (CMRS) governed by Part 22 of the Commission's rules. These 
steps to remove unnecessary regulatory burdens for Cellular Service and 
other Part 22 licensees will free up more resources for investment in 
new technologies and greater spectrum efficiency to meet increasing 
consumer demand for advanced wireless services. Specifically, the 
Commission modernizes its rules by eliminating several Part 22 
recordkeeping and reporting obligations that were adopted more than two 
decades ago--obligations for which there is no longer a benefit to 
outweigh the compliance costs and burdens imposed on licensees. It also 
eliminates certain Cellular Service-specific rules that are no longer 
necessary. These reforms will provide Cellular Service and other Part 
22 licensees with enhanced flexibility and advance the goal of ensuring 
more consistency in licensing across commercial wireless services, 
while taking into account unique features of each service. With this 
document, the Commission terminates the Cellular Reform proceeding in 
WT Docket No. 12-40, including RM Nos. 11510 and 11660.

DATES: Effective September 4, 2018, except for the amendment to 47 CFR 
22.303, which contains modified information collection requirements 
that have not yet been approved by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act. The Commission will publish a 
document in the Federal Register announcing the effective date of that 
amendment.

FOR FURTHER INFORMATION CONTACT: Nina Shafran, (202) 418-2781, in the 
Mobility Division, Wireless Telecommunications Bureau. She may also be 
contacted at (202) 418-7233 (TTY).

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third 
Report and Order in the Cellular Reform proceeding (Cellular Third 
R&O), WT Docket No. 12-40, RM Nos. 11510 and 11660, FCC 18-92 adopted 
July 12, 2018 and released July 13, 2018. The full text of the Cellular 
Third R&O, including all Appendices, is available for inspection and 
copying during normal business hours in the FCC Reference Center, 445 
12th Street SW, Room CY-A157, Washington, DC 20554, or by downloading 
the text from the Commission's website at https://docs.fcc.gov/public/attachments/FCC-18-92A1.pdf. Alternative formats are available for 
people with disabilities (Braille, large print, electronic files, audio 
format), by sending an email to [email protected] or calling the Consumer 
and Government Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 
(TTY).

Synopsis

I. Background

    1. In a Second Report and Order released March 24, 2017, in the 
Cellular Reform proceeding (Second R&O), the Commission modernized 
numerous Cellular technical rules, including outdated radiated power 
and related rules, to permit power measurement using power spectral 
density. These changes facilitate the use of Cellular spectrum to 
provide advanced mobile broadband services, such as 4G long term 
evolution (LTE), while protecting public safety communications from 
increased potential for unacceptable interference. The Second R&O also 
revised rules to further eliminate unnecessary filings and other 
regulatory burdens for Cellular licensees. The Commission's reforms 
resulted in Cellular Service rules more akin to the flexible licensing 
schemes found in other similar mobile services, such as the Broadband 
Personal Communications Service (PCS), the commercial service in the 
700 MHz band, the 600 MHz Service, and the Advanced Wireless Services 
(AWS), to help ensure that carriers are treated similarly regardless of 
technology choice.
    2. To build on the adopted reforms and to respond to certain 
submissions by commenters in the Commission's 2016 Biennial Review of 
Telecommunications Regulations proceeding (WT Biennial Review 
proceeding), the Commission also released a companion Second Further 
Notice of Proposed Rulemaking (Second Further Notice) in the Cellular 
Reform proceeding on March 24, 2017. In the Second Further Notice, the 
Commission proposed and sought comment on additional reforms of its 
Part 22 rules governing the Cellular Service and other Part 22 Public 
Mobile Services (PMS). The Commission also invited comment on whether 
other measures could be taken to allow Part 22 licensees to benefit 
from the same level of flexibility available to other commercial 
wireless licensees. In that context, the Commission raised the 
possibility of relocating--to Part 27 of the Commission's rules--
certain Part 22 rules, as well as the Part 24 PCS rules and other rules 
governing geographically licensed wireless services.
    3. In response to the Second Further Notice, interested parties 
submitted comments, reply comments, and ex parte letters. The specific 
reforms adopted by the Commission in the Third R&O are described below.

II. Elimination of Unnecessary Rules

A. Deletion of 47 CFR 22.301 and 22.303 Concerning Station Inspection, 
Retention of Station Authorizations

    4. Commission Rules 22.301 and 22.303 collectively require that 
hard copies of license authorizations and other records be maintained 
by all Part 22 licensees for each station and that such records and the 
station itself be made available for inspection upon request. The 
Commission finds that both rules have outlived the usefulness they may 
have had in the past and now impose administrative burdens without any 
corresponding public benefit.\1\ Because the Commission no longer 
routinely mails printed authorizations, licensees cannot comply with 
the hard-copy requirement unless they themselves print, or request that 
the Commission's Wireless Telecommunications Bureau print and mail, an 
authorization every time an application is granted. Such a requirement 
does not serve the public

[[Page 37761]]

interest. The Commission's Universal Licensing System (ULS) is 
available electronically at all times: licensees have access in ULS to 
their official authorizations, while members of the public have access 
in ULS to reference copies reflecting the most up-to-date information 
concerning all authorizations. The movement away from site-specific 
filings renders on-site comparison of paper records and operating 
parameters unnecessary and largely infeasible. Moreover, the Commission 
has not imposed the recordkeeping and station inspection requirements 
of Rules 22.301 and 22.303 on licensees in competing wireless services 
governed by Parts 24 and 27 of its rules. For these reasons, the 
Commission deletes 47 CFR 22.301 and 22.303.
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    \1\ The Commission retains in any event its general station 
inspection authority under the Communications Act of 1934, as 
amended. See 47 U.S.C. 303(n).
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B. Deletion of 47 CFR 22.325 Concerning Control Points

    5. Commission Rule 22.325 requires that ``[e]ach station in the 
Public Mobile Services [ ] have at least one control point and a person 
on duty who is responsible for station operation.'' The Commission 
finds that this rule no longer serves the public interest; it is 
technologically obsolete, as licensees today routinely monitor their 
network operations by automatic and remote mechanisms. As with Rules 
22.301 and 22.303, discussed above, there is no similar provision 
governing competing CMRS in the Commission's Part 24 or Part 27 rules. 
Part 22 licensees should have the same flexibility as Part 24 and Part 
27 commercial wireless licensees to determine how to manage their 
networks to ensure compliance with the Commission's rules, including 
how best to avoid interference. Accordingly, the Commission deletes 47 
CFR 22.325.

C. Deletion of 47 CFR 22.321 Concerning Equal Employment Opportunity 
Programs and Reports

    6. Commission Rule 22.321 sets forth licensee obligations for equal 
employment opportunity (EEO) programs and policies to assure 
nondiscriminatory practices in recruitment, placement, promotion, and 
other areas of employment practices. Paragraph (c) of the rule requires 
all Part 22 licensees (i.e., PMS licensees), regardless of their size, 
to submit an annual report to the Commission indicating whether any EEO 
complaints have been filed at the federal, state, or local level 
against the licensee. Commission Rule 90.168, titled Equal Employment 
Opportunities, contains the same provisions as Rule 22.321. This 
includes paragraph 90.168(c) which, like 22.321(c), requires that a 
complaints report be filed annually regardless of the licensee's size. 
Rule 90.168 states that it applies to all CMRS (which includes the Part 
22 PMS), and thus it entirely subsumes Rule 22.321. Given that all CMRS 
licensees are subject to 47 CFR 90.168, including 90.168(c), 47 CFR 
22.321 is duplicative and, accordingly, the Commission deletes 47 CFR 
22.321 in its entirety. As to the Part 90 reporting requirement, the 
Commission did not propose to remove that requirement, nor did any 
commenters suggest doing so. Part 90 rules are therefore beyond the 
scope of this proceeding and the Commission declines at this time to 
eliminate the complaints reporting requirement in 47 CFR 90.168.

D. Deletion of 47 CFR 22.927 Concerning Responsibility for Mobile 
Stations, and 47 CFR 22.3 Concerning Authorization Required

    7. Under 47 CFR 22.927, Cellular licensees are ``responsible for 
exercising effective operational control over mobile stations receiving 
service through their Cellular systems,'' including mobile stations 
operated by subscribers to a different Cellular licensee. Pursuant to 
47 CFR 1.903(c), the ``[a]uthority for subscribers to operate mobile or 
fixed stations in the Wireless Radio Services [WRS],'' which includes 
the Cellular Service, ``is included in the authorization held by the 
licensee providing service to them.'' Thus, when a WRS licensee, as the 
host carrier, provides service to a subscriber of another carrier 
(i.e., a subscriber that is outside its own provider's service area), 
the subscriber's use of his or her mobile phone to access the spectrum 
falls under that host carrier's authorization. Rule 1.903(c) thus 
captures the purpose underlying Rule 22.927, albeit with less detail. 
While the detailed provision in Rule 22.927 regarding the host 
carrier's responsibility under its authorization may have been 
warranted when the Cellular Service was in its nascency, the Commission 
finds that this additional rule is unnecessary these many decades 
later. Moreover, the rule creates asymmetry, as the rules for 
commercial wireless services established much later than the Cellular 
Service--such as PCS and AWS--do not have a counterpart to 47 CFR 
22.927. Consistent with a key goal in this proceeding to eliminate 
unnecessary asymmetric regulations, the Commission deletes 47 CFR 
22.927.
    8. The Commission concludes that a related legacy rule that applies 
to all Part 22 licensees, 47 CFR 22.3, is also no longer necessary. 
This rule specifies that PMS stations must be used and operated only in 
accordance with applicable Commission rules and only with a valid 
authorization granted by the Commission. It further specifies that 
authority for subscribers to operate mobile or fixed PMS stations is 
included in the authorization of the licensee providing service to 
them. The same provisions are included in the later-adopted 47 CFR 
1.903, which applies more broadly to numerous wireless services in 
addition to the PMS. Accordingly, the Commission deletes 47 CFR 22.3 as 
duplicative.

III. Possible Relocation of Rules to Part 27

    9. The Commission sought comment in the Second Further Notice on 
whether to migrate the Part 22 Cellular and Part 24 PCS rules to Part 
27, and on possible reorganization of the Part 27 rules, either in this 
proceeding or by initiating a separate rulemaking. In addition, the 
Commission noted that there are other geographically-licensed, 
auctioned services that are not included in Part 27, including Public 
Coast (Part 80), Specialized Mobile Radio (SMR), Location and 
Monitoring, and 220 MHz (Part 90), and 218-219 MHz (Part 95), and that 
of these, only SMR is used today by wireless carriers to provide 
services directly to consumers nationwide. The Commission sought 
comment on whether it should move the Part 22 Cellular and Part 24 PCS 
rules to Part 27 in conjunction with moving those other service rule 
parts to Part 27 as well.
    10. Only two commenters addressed the issue, and one of them 
opposes the idea, highlighting the fact that disparate types of 
operations found in certain rule parts would make it challenging to 
consolidate Part 22 Cellular, Part 24 PCS, and other wireless mobile 
service rules into a single set of regulations. Such an exercise would 
entail painstaking review of numerous rules to determine those that can 
be consolidated and those that must be retained for individual 
services. In the absence of strong support on the record for this 
endeavor, which would require a significant investment of staff 
resources to complete, the Commission declines to pursue the issue at 
this time.

IV. Other Regulations Raised by Commenters

    11. In response to the Commission's query in the Second Further 
Notice as to whether any other Part 22 rules are ripe for removal in 
light of changed technology, electronic licensing/recordkeeping, or 
other modernizations that have occurred over the past two decades, a 
few commenters requested deletion of three Part 22 rules. These

[[Page 37762]]

rules and the Commission's decisions not to delete them at this time 
are explained below.
    12. 47 CFR 22.921--911 Call Processing Procedures. One commenter 
argued that Rule 22.921, pursuant to which certain Cellular Service 
mobile telephones that are capable of operating in the analog mode must 
incorporate a special procedure for processing 911 calls, is now 
obsolete because, among other reasons, it is unaware of any carrier 
that still offers analog devices or operates an analog Cellular system. 
Commission data show that, on the contrary, some carriers are still 
using analog technology in the Cellular Service band--and Rule 22.921 
ensures that 911 calls get through in those circumstances. Accordingly, 
the Commission concludes that deletion of 47 CFR 22.921 would not serve 
the public interest and declines to take such action in this proceeding
    13. 47 CFR 22.925--Prohibition on Airborne Operation of Cellular 
Telephones. Two commenters raised issues regarding the use of Cellular 
Service spectrum for communications to, from, and onboard aircraft and 
argued that Rule 22.925, which prohibits the operation of Cellular 
Service telephones aboard ``airplanes, balloons or any other type of 
aircraft . . . while such aircraft are airborne . . .,'' should be 
eliminated, or at least modified. The issues raised by the two 
commenters are being dealt with in a separate Commission proceeding 
that remains open (WT Docket No. 13-301), and the Commission therefore 
declines to consider the issues in this Cellular Reform proceeding.
    14. 47 CFR 22.143(a)--Commencement of Construction Prior to Grant 
of Application. Rule 22.143 permits applicants to begin construction of 
PMS facilities prior to grant of their applications; paragraph (a) of 
the Rule specifies that such construction may begin ``35 days after the 
date of the Public Notice listing the application for that facility as 
acceptable for filing.'' One commenter argues that paragraph (a) of the 
Rule should be deleted, asserting that comparable provisions do not 
exist for other wireless services, and that other portions of the Rule 
put applicants on notice that they assume the risk of constructing 
prior to grant. The Commission disagrees that the provision should be 
deleted, noting that the same Public-Notice-plus-35-day period is 
specified in 47 CFR 90.169 of Commission rules for several other 
commercial wireless radio services.\2\ In addition, pre-grant 
construction under Rule 22.143 is subject to several conditions, 
including, among others, that no petitions to deny or mutually 
exclusive (competing) applications have been filed. When the Commission 
reduced the waiting period from the original 60-day and 90-day post-
Public Notice periods to the existing Public-Notice-plus-35-days 
provision, it agreed that applicants should know within that timeframe 
whether any petition to deny or competing application had been filed, 
and retained these conditions to disallow construction when it cannot 
be reasonably certain of being able to grant the application. The 
Commission has also recognized that construction of PMS facilities 
entails not only the financial risk to the applicant, but also 
environmental and other consequences affecting the public, and it would 
not be in the public interest to allow construction until the 
Commission is reasonably certain that the facilities can be authorized. 
In a similar vein, it is in the public interest to minimize the 
Commission's risk of having to expend taxpayer resources to issue 
notification to the applicant, pursuant to 47 CFR 22.143(b), to stop 
construction. For all these reasons, the Commission declines to delete 
47 CFR 22.143(a) at this time.
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    \2\ The Commission also notes that, for applicants for licenses 
awarded by competitive bidding, which includes commercial wireless 
services such as PCS and AWS, the Commission has also established a 
waiting period, tailored to our competitive bidding process: Pre-
grant construction is permitted only upon release of the Public 
Notice listing the post-auction long-form application for that 
facility as acceptable for filing (by which time, mutual exclusivity 
has been eliminated and the Commission is reasonably certain that 
the application can be granted). See 47 CFR 1.2113.
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V. Procedural Matters

    15. Paperwork Reduction Act Analysis. One rule amendment adopted in 
the Third R&O--specifically, 47 CFR 22.303, contains modified 
information collection requirements subject to the Paperwork Reduction 
Act of 1995 (PRA), Public Law 104-13. That rule amendment will be 
submitted to OMB for review under section 3507(d) of the PRA. OMB, the 
general public, and other Federal agencies will be invited to comment 
on the modified information collection requirements. In addition, the 
Commission notes that pursuant to the Small Business Paperwork Relief 
Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the 
Commission previously sought specific comment on how the Commission 
might further reduce the information collection burden for small 
business concerns with fewer than 25 employees. The Commission has 
assessed the effects on small business concerns of the rule changes it 
is adopting by this Third R&O and finds that businesses with fewer than 
25 people will benefit from being subject to fewer recordkeeping, 
reporting, and compliance burdens.
    16. Congressional Review Act. The Commission will send a copy of 
this Third R&O to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
    17. Final Regulatory Flexibility Analysis. The Regulatory 
Flexibility Act of 1980 (RFA) requires that an agency prepare a 
regulatory flexibility analysis for notice and comment rulemakings, 
unless the agency certifies that ``the rule will not, if promulgated, 
have a significant economic impact on a substantial number of small 
entities.'' Accordingly, the Commission has prepared a Final Regulatory 
Flexibility Analysis (FRFA), set forth in Appendix B of the Third R&O, 
concerning the possible impact of the rule changes.
    18. People with Disabilities. To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an email to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).

VI. Ordering Clauses

    19. Accordingly, it is ordered, pursuant to sections 1, 2, 4(i), 
4(j), 7, 301, 303, 307, 308, 309, and 332 of the Communications Act of 
1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 157, 301, 303, 
307, 308, 309, and 332, that this third report and order in WT Docket 
No. 12-40 is adopted.
    20. It is further ordered that the third report and order shall be 
effective September 4, 2018.
    21. It is further ordered that Part 22 of the Commission's rules, 
47 CFR part 22, is amended as specified in Appendix A of the third 
report and order, effective September 4, 2018 except as otherwise 
provided herein.
    22. It is further ordered that the amendment adopted in the third 
report and order, and specified in Appendix A of the third report and 
order, to 47 CFR 22.303, which contains new or modified information 
collection requirements that require approval by the Office of 
Management and Budget under the Paperwork Reduction Act, will become 
effective after the Commission publishes a document in the Federal 
Register announcing such approval and the relevant effective date.
    23. It is further ordered that this Cellular Reform proceeding in 
WT Docket No. 12-40, including RM Nos. 11510 and 11660, is hereby 
terminated.

[[Page 37763]]

    24. It is further ordered, pursuant to Section 801(a)(1)(A) of the 
Congressional Review Act, 5 U.S.C. 801(a)(1)(A), that the Commission 
shall send a copy of the third report and order to Congress and to the 
Government Accountability Office.
    25. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of the third report and order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.

List of Subjects in 47 CFR Part 22

    Communications common carriers, Reporting and recordkeeping 
requirements.

Federal Communications Commission.
Marlene Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 22 as follows:

PART 22--PUBLIC MOBILE SERVICES

0
1. The authority citation for part 22 continues to read as follows:

    Authority:  47 U.S.C. 154, 222, 303, 309 and 332.


Sec.  22.3  [Removed and Reserved]

0
2. Section 22.3 is removed and reserved.


Sec.  22.301  [Removed and Reserved]

0
3. Section 22.301 is removed and reserved.


Sec.  22.303  [Removed and Reserved]

0
4. Section 22.303 is removed and reserved.


Sec.  22.321  [Removed and Reserved]

0
5. Section 22.321 is removed and reserved.


Sec.  22.325  [Removed and Reserved]

0
6. Section 22.325 is removed and reserved.


Sec.  22.927  [Removed and Reserved]

0
7. Section 22.927 is removed and reserved.

[FR Doc. 2018-16512 Filed 8-1-18; 8:45 am]
 BILLING CODE 6712-01-P