[Federal Register Volume 84, Number 68 (Tuesday, April 9, 2019)]
[Proposed Rules]
[Pages 14080-14082]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06923]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 22

[WT Docket No. 12-40; FCC 19-26]


Cellular Service, Including Changes in Licensing of Unserved Area

AGENCY: Federal Communications Commission.

ACTION: Denial of petition for reconsideration.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) addresses the Petition for Reconsideration (Petition) 
filed on behalf of the Critical Messaging Association (CMA) regarding 
the Commission's Third Report and Order in the Cellular Reform 
proceeding (Cellular Third R&O). The Commission denies the Petition.

DATES: As of May 9, 2019, the petition is denied.

ADDRESSES: Federal Communications Commission, 445 12th Street SW, 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Nina Shafran, Wireless 
Telecommunications Bureau, (202) 418-2781 or TTY: (202) 418-7233.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration in the Cellular Reform proceeding, WT Docket No. 12-
40, RM Nos. 11510 and 11660, FCC 19-26, adopted March 20, 2019 and 
released March 22, 2019 (Reconsideration Order). The full text of the 
Reconsideration Order is available for inspection and copying during 
normal business hours in the FCC Reference Center, 445 12th Street SW, 
Room CY-A257, Washington, DC 20554, or by downloading the text from the 
Commission's website at https://docs.fcc.gov/public/attachments/FCC-19-26A1.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. Introduction

    1. In the Cellular Third R&O, 83 FR 37760 (Aug. 2, 2018), the 
Commission deleted several administrative and recordkeeping rules for 
Part 22 licensees, eliminating outdated burdens that were inconsistent 
with the Commission's practices and the current predominant use of 
electronic records storage and access. The Commission also deleted in 
its entirety a rule regarding Equal Employment Opportunity (EEO) 
requirements for Part 22 licensees (47 CFR 22.321). That Rule contained 
a number of EEO provisions, including paragraph (c) which required each 
Part 22 licensee to file an EEO complaints report annually regardless 
of the licensee's size. The Commission noted that Rule 22.321 was 
subsumed by another rule applying all such requirements, including the 
annual EEO complaints reporting requirement, to all Commercial Mobile 
Radio Service (CMRS) licensees--namely, Rule 90.168. The Commission 
concluded that, because all CMRS licensees, including Part 22 CMRS 
licensees, are subject to Rule 90.168, Rule 22.321 was rendered

[[Page 14081]]

duplicative and unnecessary in its entirety.
    2. CMA timely filed a Petition for Reconsideration. CMA did not 
seek reconsideration of any rule change implemented in the Cellular 
Third R&O rather, it asked the Commission to reconsider its 
interpretation of Rule 90.168. CMA argued that the Commission erred in 
construing Rule 90.168 to apply to CMRS providers that are not licensed 
under Part 90. Accordingly, CMA contended that with the deletion of 
Rule 22.321, CMRS providers licensed under Part 22 were subject only to 
the annual EEO reporting obligations found in Rule 1.815, which do not 
apply to providers with fewer than 16 employees. The Commission denies 
the Petition.

II. Discussion

    3. The Commission rejects CMA's argument that Rule 90.168 applies 
solely to those CMRS licensed under Part 90, which, according to CMA, 
consist only of CMRS licensees operating in the Industrial/Business 
Radio Pool. With respect to the annual EEO complaints reporting 
requirement, CMA argued that Rule 90.168(c), when read together with 
Rule 90.1(b), subjects each CMRS licensee in the Industrial/Business 
Radio Pool to that annual requirement, regardless of how many employees 
it has, but that other CMRS licensees are not covered by Rule 90.168(c) 
or any other provision of Rule 90.168. CMA supplemented its Petition 
with an ex parte filing in which it noted that, when the Commission 
adopted 47 CFR 90.168 along with numerous other provisions in 1994 in 
the CMRS rulemaking proceeding, it was carrying out a directive to 
implement the Omnibus Budget Reconciliation Act of 1993 (OBRA). Citing 
that proceeding's CMRS Second Report and Order, CMA argued that Rule 
90.168 ``and its companions were adopted and applied to Part 90 CMRS 
licensees (and only Part 90 CMRS licensees) in order to bring them up 
to the same standards already and historically applied to Part 22 CMRS 
licensees.''
    4. The Commission denies the CMA Petition as fundamentally 
misreading the purpose of the Commission's EEO rules and the 
Commission's intent in the Cellular Third R&O. The Commission has long 
recognized the importance of having EEO rules that apply to common 
carriers, including all CMRS providers. The Commission purposely 
applied its EEO program and policy requirements broadly in 1970, and in 
that context, it also adopted the complaints reporting requirement for 
common carriers no matter their size. As the Commission stated at the 
time, ``discriminatory employment practices by a common carrier are 
incompatible with its operation in the public interest''; it further 
stated that, in its determinations under the Communications Act of 
1934, as amended, the Commission must `` `take into account allegations 
raising substantial questions whether the [entity] has violated, or is 
in violation of, the Civil Rights Act or a pertinent State law in this 
field.' '' \1\ The Commission subsequently reviewed the application of 
EEO requirements to all CMRS in the CMRS proceeding, a proceeding in 
which, as CMA alluded, the Commission sought to adopt rules to 
establish regulatory symmetry among similar CMRS pursuant to 
congressional mandate. In the 1994 CMRS Third Report and Order, the 
Commission stated its purpose was to ensure application of the EEO 
rules ``to all CMRS providers.'' In adopting Rule 90.168, the 
Commission discussed at length the record evidence and concluded that 
it is ``appropriate and necessary'' to do so in order ``to achieve the 
statutory goal of increased ownership opportunities for minorities and 
women in spectrum-based services.'' \2\
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    \1\ Rulemaking to Require Communications Common Carriers to Show 
Nondiscrimination in Their Employment Practices, Docket No. 18742, 
Report and Order, 24 F.C.C.2d 725, 726, 728 (1970).
    \2\ Implementation of Sections 3(N) and 332 of the 
Communications Act--Regulatory Treatment of Mobile Services (other 
captions omitted), GN Docket No. 93-252, PR Docket Nos. 93-144 and 
94-212, Third Report and Order, 9 FCC Rcd 7988, 8096-99 (1994).
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    5. Against this background, the Commission deleted Rule 22.321 in 
the Cellular Third R&O, reasoning that Rule 90.168 applies to all CMRS, 
including Part 22 licensees, and thus subsumes Rule 22.321. The 
Commission noted that Rule 90.168, with the same title and virtually 
identical provisions as Rule 22.321, imposes the same obligations on 
CMRS licensees as those that were in Rule 22.321, including the 
requirement to file an EEO complaints report annually regardless of the 
licensee's size. Concluding that Part 22 licensees were subject to the 
same EEO obligations under both rules, and with the intent of removing 
repetitive rules, the Commission deleted Rule 22.321 in its entirety. 
The Cellular Third R&O was clear that the Commission intended only to 
delete a duplicative rule and not to change the substantive 
requirements applicable to CMRS licensees.
    6. The Commission disagrees with CMA's narrow interpretation of the 
applicability of Rule 90.168. Rule 90.168 begins by requiring that 
``Commercial Mobile Radio Service licensees''--not a subset of CMRS 
licensees--afford equal opportunity in employment and not discriminate 
in employment, and then requires in Rule 90.168(c) that ``[e]ach 
licensee, regardless of how many employees it has, shall submit an 
annual report to the Commission'' indicating whether any EEO complaints 
have been filed against it. The Commission contrasts 47 CFR 90.168(c) 
with 47 CFR 1.815, which limits the scope of EEO filings to ``common 
carrier licensee[s] or permittee[s] with 16 or more full time 
employees,'' and concludes that the absence of any such delimiter in 
Rule 90.168(c) makes clear that the Commission did not intend to limit 
such EEO obligations only to CMRS licensees with 16 or more full time 
employees. In addition, the order adopting Rule 90.168 makes clear that 
the Commission intended that rule to apply to all CMRS licensees, not 
just to a subset. For similar reasons, the Commission rejects CMA's 
argument that the clear text of Rule 90.168 should be set aside because 
the Commission originally created Part 90 for another purpose. Nothing 
in that purpose clause (adopted long before Rule 90.168) claims to 
limit the scope of Part 90 for commercial licensees. And even if it 
did, the Commission reads the specific language in Rule 90.168 
(applying EEO requirements to all CMRS licensees) as governing rather 
than the general language of the purpose clause.
    7. Finally, it was not the Commission's intent in the Cellular 
Third R&O to relieve any licensee of its EEO obligations under the 
Commission's rules, including the annual complaints reporting 
requirement, regardless of a licensee's number of employees. Likewise, 
it was not the Commission's intent that Part 22 licensees only be 
subject to the Commission's EEO provisions found in Rule 1.815. The 
Commission reiterates that all CMRS licensees are subject to Rule 
90.168, including the requirement that CMRS licensees, regardless of 
size, file EEO complaint reports.

III. Procedural Matters

    8. Paperwork Reduction Act Analysis. This document does not contain 
new or modified information collection requirements subject to the 
Paperwork Reduction Act of 1995, Public Law 104-13. Therefore, it does 
not contain any new or modified information collection burdens for 
small business concerns with fewer than 25 employees, pursuant to the 
Small Business Paperwork Relief Act of 2002, Public Law 107-198.

[[Page 14082]]

    9. Congressional Review Act. The Commission will send a copy of 
this Order on Reconsideration to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act.
    10. Regulatory Flexibility Act. As noted, while the Cellular Third 
R&O removed Rule 22.321, all CMRS licensees continue to be subject to 
current EEO obligations under the Commission's rules, including the 
annual complaints reporting requirement. The Commission issued a Final 
Regulatory Flexibility Analysis (FRFA) that conforms to the Regulatory 
Flexibility Act of 1980 (RFA), as amended. The Commission received no 
petitions for reconsideration of that FRFA. In this Reconsideration 
Order, the Commission promulgates no additional final rules, and its 
present action, therefore, does not alter the Commission's previous 
analysis under the RFA.

IV. Ordering Clauses

    11. It is ordered that, pursuant to Sections 1, 2, 4(i), 4(j), 301, 
303, 307, 308, 309, 332, and 405 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 152, 154(i), 154(j), 301, 303, 307, 308, 309, 
332, and 405, and Section 1.429 of the Commission's rules, 47 CFR 
1.429, this order on reconsideration in WT Docket No. 12-40 is adopted.
    12. It is furthered ordered that, pursuant to Sections 4(i), and 
405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 
and 405, and Section 1.429 of the Commission's rules, 47 CFR 1.429, the 
Critical Messaging Association Petition for Reconsideration is denied.
    13. It is further ordered that this order on reconsideration shall 
be effective May 9, 2019.
    14. 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 this order on reconsideration to Congress and to 
the Government Accountability Office.

List of Subjects in 47 CFR Part 22

    Communications common carriers, Reporting and recordkeeping 
requirements, Federal Communications Commission.

Marlene Dortch,
Secretary.
[FR Doc. 2019-06923 Filed 4-8-19; 8:45 am]
 BILLING CODE 6712-01-P