**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | EB Docket No. 06-119         |
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| Recommendations of the           | ** | WC Docket No. 06-63          |
| Independent Panel Reviewing the  |    |                              |
| Impact of Hurricane Katrina on   | *  |                              |
| Communications Networks          | *) |                              |
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**ORDER ON RECONSIDERATION**

**Adopted: October 2, 2007 Released: October 4, 2007**

By the Commission:

# Introduction

1.  In this Order, we consider six petitions for reconsideration and/or
    clarification (Petitions)[^1] of the Order that adopted Section 12.2
    of the Commission's rules which requires that certain local exchange
    carriers (LECs), including incumbent LECs (ILECs) and competitive
    LECs (CLECs), and commercial mobile radio service (CMRS) providers
    have an emergency backup power source for all assets that are
    normally powered from local AC commercial power.[^2] For the reasons
    set forth below, we grant in part and deny in part the Petitions. We
    modify Section 12.2 to address several meritorious issues raised in
    the Petitions. This modification will facilitate carrier compliance
    and reduce the burden on LECs and CMRS providers, while continuing
    to further important homeland security and public safety goals.

# background

2.  In January 2006, Chairman Kevin J. Martin established the Katrina
    Panel pursuant to the Federal Advisory Committee Act, Public Law
    92-463, as amended.[^3] The mission of the Katrina Panel was to
    review the impact of Hurricane Katrina on communications
    infrastructure in the areas affected by the hurricane and to make
    recommendations to the Commission regarding ways to improve disaster
    preparedness, network reliability and communications among first
    responders such as police, fire fighters, and emergency medical
    personnel.[^4] The Katrina Panel submitted its report on June 12,
    2006.[^5] The Katrina Panel's report described the impact of the
    worst natural disaster in the Nation's history, as well as the
    overall public and private response and recovery efforts. The
    Commission's goal is to take the lessons learned from that disaster
    and build upon them to promote more effective, efficient response
    and recovery efforts, as well as heightened readiness and
    preparedness.

3.  The Commission issued a Notice of Proposed Rulemaking (*Notice*) on
    June 19, 2006 inviting comment on what actions the Commission should
    take to address the Katrina Panel's recommendations.[^6] On July 26,
    2006, the Commission issued a Public Notice asking commenters to
    address the applicability of the Katrina Panel's recommendations to
    all types of natural disasters (*e.g.*, earthquakes, tornadoes,
    hurricanes, forest fires) as well as other types of incidents
    (*e.g.*, terrorist attacks, influenza pandemic, industrial
    accidents).[^7] The Public Notice also asked parties to address
    whether the Panel's recommendations are broad enough to take into
    account the diverse topography of our Nation, the susceptibility of
    a region to a particular type of disaster, and the multitude of
    communications capabilities a region may possess.[^8] The Commission
    received over 100 comments and reply comments in response to the
    *Notice*.

4.  In June 2007, the Commission released the *Katrina Panel Order*
    directing the Public Safety and Homeland Security Bureau (PSHSB) to
    implement several of the recommendations made by the Independent
    Panel Reviewing the Impact of Hurricane Katrina on Communications
    Networks (Katrina Panel).[^9] Among other things, the Commission
    adopted a rule requiring some communications providers to have
    emergency/backup power. The backup power rule adopted specifically
    states:

    Local exchange carriers (LECs), including incumbent LECs (ILECs) and
    competitive LECs (CLECs), and commercial mobile radio service (CMRS)
    providers must have an emergency backup power source for all assets
    that are normally powered from local AC commercial power, including
    those inside central offices, cell sites, remote switches and
    digital loop carrier system remote terminals. LECs and CMRS
    providers should maintain emergency backup power for a minimum of 24
    hours for assets inside central offices and eight hours for cell
    sites, remote switches and digital loop carrier system remote
    terminals that are normally powered from local AC commercial power.
    LECs that meet the definition of a Class B company as set forth in
    Section 32.11(b)(2) of the Commission's rules and non-nationwide
    CMRS providers with no more than 500,000 subscribers are exempt from
    this rule.[^10]

5.  On August 2, 2007, the Commission released an Order that extended
    the effective date of Section 12.2 of the Commission's rules, the
    backup power rule adopted in the *Katrina Panel Order*, to October
    9, 2007.[^11] The Commission did so on its own motion in order to
    provide additional time to consider the issues raised by CTIA in its
    Motion for Administrative Stay and to hear from other concerned
    parties on the issues raised in that motion.[^12]

6.  As indicated above, seven petitions were filed seeking
    reconsideration and/or clarification of the backup power rule
    adopted by the Commission in the *Katrina Panel Order*.[^13] The
    petitioners assert that the Commission should rescind, modify and/or
    clarify the backup power rule adopted in the *Katrina Panel Order.*
    The Commission also received five timely comments to these petitions
    and several additional *ex parte* comments.

# Discussion

7.  Petitioners argue that the Commission should rescind or
    substantially modify the backup power rule.[^14] Among other things,
    several petitioners assert that the rule should be modified to
    implement the Network Reliability and Interoperability Council
    (NRIC) best practice as recommended by the Katrina Panel and that
    the Commission should clarify that the rule applies only to assets
    directly related to the provision of critical communications
    services.[^15] Finally, some petitioners argue that, if the
    Commission wants to pursue implementation of a backup power rule, it
    should issue a Notice of Inquiry or Notice of Proposed
    Rulemaking.[^16]

8.  [Administrative Procedure Act (APA) Notice and Comment]{.underline}.
    Several petitioners contend that the Commission's adoption of the
    backup power rule violated the Administrative Procedure Act
    (APA)[^17] by failing to provide adequate notice that it was
    considering the adoption of that rule and failing to provide
    opportunity to comment.[^18] They argue that the *Notice* was too
    general to adequately support the backup power rule ultimately
    adopted and that the final rule deviates too sharply from the
    initial proposals to satisfy the notice and comment
    requirements.[^19] Petitioners contend that the *Notice* never
    discussed the backup power issue in terms of a potential mandate and
    only asked how the Commission could best encourage implementation of
    the Katrina Panel's backup power recommendation that the Commission
    encourage the implementation of *NRIC VII Recommendation
    7-7-5204*.[^20] Petitioners also assert that the *Notice* did not
    suggest that the physical scope of the backup power recommendation
    might extend to all cell sites other remote assets or that the
    Commission intended to select a specific durational requirement for
    emergency power, let alone an eight- or twenty-four hour
    standard.[^21]

9.  Section 553(b) and (c) of the APA requires agencies to give public
    notice of a proposed rule making that includes "either the terms or
    substance of the proposed rule or a description of the subjects and
    issues involved" and to give interested parties an opportunity to
    submit comments on the proposal.[^22] The notice "need not specify
    every precise proposal which \[the agency\] may ultimately adopt as
    a rule"; it need only "be sufficient to fairly apprise interested
    parties of the issues involved."[^23] In particular, the APA\'s
    notice requirements are satisfied where the final rule is a "logical
    outgrowth" of the actions proposed.[^24]

10. In this instance, the Commission provided adequate notice in
    compliance with the APA regarding the backup power rule. The Katrina
    Panel Report repeatedly stated that the lack of adequate backup
    power for communications facilities was a critical problem after
    Katrina that caused communications network interruptions and
    hampered recovery efforts.[^25] These findings provided the context
    for the Report's recommendation that the Commission encourage the
    NRIC best practice that states: "\[s\]ervice providers, network
    operators and property managers should ensure availability of
    emergency/backup power (*e.g.*, batteries, generators, fuel cells)
    to maintain critical communications services during times of
    commercial power failures . . . ."[^26] In the *Notice*, the
    Commission noted that the Katrina Panel observed significant
    challenges to maintenance and restoration of communications services
    after Hurricane Katrina, due in part to problems with access to key
    resources such as power and/or generator fuel.[^27] The Commission
    also noted that the Katrina Panel recommended that the Commission
    encourage the implementation of certain NRIC best practices intended
    to promote the reliability and resiliency of the 911 and E911
    architecture, including a recommendation that service providers and
    network operators should "ensure" availability of emergency backup
    power capabilities (located on-site, when appropriate).[^28] The
    Commission sought comment on how the Commission can best encourage
    implementation of these recommendations consistent with our
    statutory authority and jurisdiction and welcomed further
    suggestions on measures that could be taken to strengthen 911 and
    E911 infrastructure and architecture.[^29] The Commission also
    invited \"broad comment on the Independent Panel\'s recommendations
    and on the measures the Commission should take to address the
    problems identified\" and to build upon the lessons learned from
    Hurricane Katrina and promote greater resiliency and reliability of
    communications infrastructure, heightened readiness and
    preparedness, and more effective, efficient response and recovery
    efforts, in the future.[^30]

11. Further, in the *Notice*, the Commission sought comment on whether
    it should rely on voluntary consensus recommendations or whether it
    should rely on other measures for enhancing readiness and promoting
    more effective response efforts.[^31] The *Notice* also invited
    comment on whether the Katrina Panel's observations warranted
    additional measures or steps beyond the report's specific
    recommendations and welcomed suggestions and recommendations of
    different actions or additional measures beyond the Katrina Panel's
    recommendations.[^32] In its report and recommendations, the Katrina
    Panel found that the lack of power and/or fuel was one of three main
    problems that caused the majority of communications network
    interruptions and significant impediments to the recovery effort in
    the aftermath of Hurricane Katrina.[^33] The Katrina Panel Report
    also noted that during and after the hurricane, the power needed to
    support the communications networks was generally unavailable
    throughout the region and that backup batteries and generators were
    required for communications systems to continue to operate.[^34] The
    Katrina Panel further noted that "the majority of the adverse
    effects and outages encountered by wireless providers were due to a
    lack of commercial power or a lack of transport connectivity to the
    wireless switch."[^35] Additionally, the Katrina Panel Report stated
    that "\[w\]ireless providers cited security for their personnel,
    access and fuel as the most pressing needs and problems affecting
    restoration of wireless service" and that the loss of power in the
    wireline telephone network also had a huge impact on the ability of
    public safety systems to function.[^36] The Katrina Panel noted that
    electric utility networks had a high rate of survivability following
    Hurricane Katrina due, in part, to the fact that they were built
    with significant onsite backup power supplies (batteries and
    generators).[^37] Although the Katrina Panel found that "the
    communications industry has generally been diligent in deploying
    backup batteries and generators and ensuring that these systems have
    one to two days of fuel or charge," it also noted that not all
    locations had such backup batteries or generators installed and
    that, because all locations were not able to exercise and test the
    backup equipment in any systemic fashion, some generators and
    batteries did not function during the crisis.[^38] Although the
    power outages during and after Hurricane Katrina were exceptionally
    long, the Panel's observations clearly emphasized the importance of
    power supply to resiliency of communications networks.

12. Taken together, the questions raised in the *Notice* as well as the
    Katrina Panel Report's findings regarding the lack of emergency
    power were sufficient to put interested parties on notice that the
    Commission was considering how to address the lack of emergency
    backup power, including through the possible adoption of an
    emergency backup power rule. Specifically, the *Notice* sought
    comment on how the Commission could best encourage implementation of
    various NRIC best practices, including ensuring the availability of
    emergency backup power.[^39] Even if that language were not read to
    propose a mandatory rule, the *Notice* still gave ample notice that
    this was a possibility. The *Notice* specifically inquired about
    "whether \[the Commission\] should rely on voluntary consensus
    recommendations, as advocated by the \[Katrina\] Panel, or whether
    \[it\] should rely on *other measures* for enhancing readiness and
    promoting more effective response efforts,"[^40] a line of inquiry
    that the Commission reiterated in the *July 26 Public Notice*.[^41]
    Moreover, the D.C. Circuit has held that the ultimate adoption of a
    mandatory rule can constitute the logical outgrowth of a voluntary
    standard.[^42] Thus, because parties could have anticipated that the
    rule ultimately adopted was "possible," it is considered a "logical
    outgrowth" of the original proposal, and there is no violation of
    the APA\'s notice requirements.[^43]

13. Indeed, we note that the National Emergency Number Association
    (NENA) did propose a backup power requirement in response to the
    *Notice*.[^44] In addition, St. Tammany Parish Communications
    District 1 told the Commission that "\[v\]oluntary consensus
    measures  .  .  . have fallen short many times" and that "it is
    imperative that \[wireline\] and wireless telephone providers be
    required to demonstrate they have adequate backup procedures in
    place."[^45]  Carriers also commented on the importance of having
    backup power.  CTIA observed that wireless carriers "must ensure
    network reliability and reliance" and that, to do so, they
    "provision their cell sites and switches with batteries to power
    them when electrical grids fail" and "maintain permanent generators
    at all of the switches and critical cell sites, as well as an
    inventory of backup power generators to recharge the batteries
    during extended commercial power failures."[^46]  USTA likewise gave
    examples of telephone companies that had already deployed backup
    power capabilities that enabled their cell networks to remain in
    operation for several days after a loss of main power.[^47] In light
    of these comments, we do not find credible the argument that the
    *Notice* failed to apprise parties that the Commission would address
    the issue of backup power in this proceeding.

14. Petitioners' argument that the Commission did not give adequate
    notice that it might select a specific durational requirement for
    emergency power, such as twenty-four or eight hours, also lacks
    merit. Had we adopted a general backup power requirement that did
    not require a minimum amount of backup power, we would have risked
    creating an illogical and meaningless requirement that would have
    allowed providers to have only one minute of backup power. Thus,
    parties should have realized that an emergency backup power mandate
    would inevitably include a specific durational requirement.

15. [Statutory Authority]{.underline}. PCIA asserts that Section 1 of
    the Communications Act, the statutory authority upon which the
    Commission adopted the backup power rule, is patently inadequate
    statutory authority.[^48] PCIA contends that Section 1 of the
    Communications Act, as amended, (the "Act")[^49] is only a general
    grant of jurisdiction that, absent other specific authority, does
    not authorize the Commission to impose requirements to maintain
    backup power at cell sites.[^50] PCIA argues that the Commission's
    ancillary authority under Section 1 of the Act does not empower it
    to act where such action would be "ancillary to nothing."[^51]

16. The Commission's Section 1 ancillary jurisdiction covers
    circumstances where: (1) the Commission's general jurisdictional
    grant under Title I covers the subject of the regulations, and (2)
    the regulations are reasonably ancillary to the Commission's
    effective performance of its statutorily mandated
    responsibilities.[^52] This two-part test for ancillary jurisdiction
    was developed by the Supreme Court in *Southwestern Cable*.[^53]

17. To fulfill the first prong of the ancillary jurisdiction test, the
    subject of the regulation must be covered by the Commission's
    general grant of jurisdiction under Title I of the Communications
    Act, which encompasses "all interstate and foreign Communication by
    wire or radio."[^54] In the instant rule making, this first prong of
    the ancillary jurisdiction test is met because the backup power rule
    adopted by the Commission in the *Katrina Panel Order* pertains to
    the provisioning of "interstate and foreign commerce in
    communication by wire and radio."[^55] The second prong of the
    ancillary jurisdiction test requires that the subject of the
    regulation must be reasonably ancillary to the Commission's
    effective performance of its statutorily mandated
    responsibilities.[^56] It cannot seriously be disputed that the
    backup power requirement is "reasonably ancillary to the effective
    performance" of the Commission's responsibilities to promote public
    safety. Section 1 itself makes clear that one of the Commission's
    missions is to "make available  .  .  . \[a\] wire and radio
    communication service with adequate facilities  .  .  . for the
    purpose of *promoting safety of life and property* through the use
    of wire and radio communications." 47 U.S.C. § 151 (emphasis added).
    Section 1 thus requires the Commission to "consider public safety"
    and to "take into account its *duty* to protect the public." *Nuvio
    Corp. v. FCC*, 473 F.3d 302, 307 (2006); *see also id.* at 311
    (Kavanaugh, J., concurring) ("the FCC possesses statutory
    authority  .  .  . to address the public safety threat by banning
    providers from selling voice services until the providers can ensure
    adequate 911 connections"). And as this Court has recognized, it is
    well "within the Commission's statutory authority" to "'make such
    rules and regulations  .  .  . as may be necessary in the
    execution'" of its section 1 responsibilities."[^57] Section 303(r)
    also provides ample authority to support the Commission's action
    here. Section 303(r) provides that the Commission may "\[m\]ake such
    rules and regulations . . . as may be necessary to carry out the
    provisions of this Act.[^58]

18. The presence of a backup power source installed by all local
    exchange carriers (LECs), including incumbent LECs (ILECs) and
    competitive LECs (CLECs), as well as commercial mobile radio service
    (CMRS) providers for all assets that are normally powered from local
    commercial power including those inside central offices, cell sites,
    remote switches and digital loop carrier system remote terminals
    will facilitate communication for the purposes of national defense
    and the promotion of "safety of life and property" during
    emergencies. Communications networks cannot operate without a power
    source. The Commission must therefore be mindful of an adequate
    power supply, particularly in emergencies, if it is to discharge its
    core responsibilities under Section 1 of the Communications Act to
    regulate communications for the promotion of national defense,
    public safety and the protection of property. If commercially
    supplied power is incapacitated, the communications network will
    also fail. The backup power rule adopted by the Commission is a
    short-term attempt to sustain communication in a severe emergency
    for the purposes of promoting the Commission's salient purpose
    pursuant to Section 1 to regulate interstate communications by wire
    and radio.

19. PCIA's reliance on the broadcast flag ruling by the U.S. Court of
    Appeals for the District of Columbia (Court) is misplaced. In that
    case, the Court found that the Commission had not satisfied the
    second prong of the ancillary jurisdiction test because the
    restriction on recording digital television programs that were
    transmitted by cable or over-the-air broadcast exceeded the
    Commission's authority to regulate the transmission of
    communications by wire and radio given that the restriction
    pertained to a regulation imposed outside the course of the act of
    transmitting the communication.[^59] In this case, by contrast,
    backup power is necessary for the communication to be transmitted at
    all.

20. [Arguments Regarding Lack of Record Support, Consideration of
    Important Factors or Reasoned Basis for Rule]{.underline}.
    Petitioners contend that the backup power rule is arbitrary and
    capricious because the Commission failed to explain why a mandatory
    obligation including an inflexible minimum 8 or 24 hour period was
    necessary and why it rejected less restrictive alternatives to the
    rule, such as a voluntary best practices regime as recommended by
    the Katrina Panel.[^60] Several petitioners also allege that the
    Commission failed to consider the impact of the rule, failed to
    consider important aspects of the very problem it sought to redress,
    and failed to explain why present carrier preparedness plans are
    inadequate.[^61] Additionally, several petitioners argue that the
    backup power rule adopted lacks record support.

21. Petitioners argue that there is no record evidence to support the
    backup power mandate in general, or the eight or 24-hour minimum in
    particular.[^62] Some petitioners note that the comments described
    in the Order when discussing the backup power rule do not concern
    CMRS providers at all, do not suggest any mandatory minimum
    standard, or have nothing to do with backup power.[^63] However, the
    rule adopted by the Commission enjoyed strong factual support.
    First, as described *supra* at ¶ 11, the Katrina Panel repeatedly
    emphasized the importance of power supply to resiliency of
    communications networks. Further, it noted that backup generators
    and batteries were not present at all facilities.[^64] Additionally,
    the Katrina Panel Report stated that power for radio base stations
    and battery/chargers for portable radio devices are carefully
    planned for public safety systems; however, "generators are
    typically designed to keep base stations operating for 24 to 48
    hours."[^65] This language, along with the Katrina Panel's
    recognition that 24-48 hours is generally a sufficient time to
    permit the restoration of power in most situations,[^66] clearly
    provides support for requiring LECs and CMRS providers to maintain
    backup power for a minimum of 24 hours for assets located inside
    central offices. The 24 hour requirement imposes relatively less
    burden while still generally providing sufficient time for
    restoration of commercial power or for carriers to allocate
    additional power sources. Further, the Commission recognized the
    burdens of ensuring longer durations of backup power at other
    locations, which have subsequently been detailed by petitioners, and
    reasonably required only 8 hours of backup power for such locations,
    including, but not limited to, cell sites, remote switches and
    digital loop carrier system remote terminals.[^67] This will provide
    at least eight hours for commercial power restoration or carrier
    actions to obtain additional backup power sources.[^68]

22. Additionally, the Katrina Panel's recommendation was that the
    Commission encourage the implementation of the NRIC VII
    Recommendation 7-7-5204. That recommendation states that
    "\[s\]ervice providers, network operators and property managers
    should ensure availability of emergency/backup power. . ." The terms
    "service providers" and "network operators" clearly include CMRS
    providers. In the *Katrina Panel Order*, the Commission noted that
    NENA recommended that "the FCC or state commissions, as appropriate,
    require all telephone central offices to have an emergency backup
    power source."[^69] NENA states that, in its comments in the Katrina
    Panel Docket, it chose to mention telephone central offices as
    emblematic, not exhaustive, of critical switching points in wire and
    wireless networks, and it also endorsed the broader scope of NRIC
    Recommendation 7-7-5204.[^70]

23. The Commission determined that a mandatory backup power requirement
    would be in the public interest. Although several carriers described
    their backup power plans, the Katrina Panel Report made clear the
    importance of backup power for resilient communications and
    restoration of communications services that have been disrupted. The
    report further made clear that, although many carriers do have
    backup power or backup power plans, not all locations have backup
    power. The Katrina Panel also noted that because those
    communications providers did not necessarily test and exercise their
    backup power sources in a systematic fashion, generators and
    batteries might not function during the crisis.[^71] Imposing a
    backup power rule would ensure that more communications assets have
    backup power and that providers ensure the availability of this
    power. Access to communications technologies during times of
    emergency is critical to the public, public safety personnel,
    hospitals, and schools, among others. Therefore, because the
    benefits of ensuring resilient communications during times of crises
    are so great, the Commission determined that a backup power rule was
    in the public interest. Moreover, it is important that both LEC and
    CMRS providers have backup power, because the public, public safety
    personnel, and hospitals, among others, rely heavily on both types
    of providers. In fact, many Americans now rely on only a wireless
    phone and public safety entities, hospitals and others are
    increasingly relying on wireless technologies.[^72] As the Katrina
    Panel Report and commenters note, lack of commercial power was one
    of the main causes of wireless outages during Hurricane Katrina,
    access to fuel was one of the wireless providers' most pressing
    needs during that catastrophe, and it is important that both
    wireless and wireline carriers ensure network reliability and
    resiliency by provisioning their sites with back up power.[^73]

24. Petitioners also allege that the Commission failed to consider
    burdens and important matters, some of which affect the ability of
    carriers to comply with the rule. They contend that legal
    impediments, including contractual obligations and inconsistency
    with federal, state and local environmental, safety, building and
    zoning laws will make compliance with the rule difficult, if not
    impossible and could result in preemption issues regarding state and
    local laws.[^74] Petitioners note that carriers have site leases
    with contractual obligations that regulate the placement,
    installation and operation of power sources.[^75] Additionally,
    petitioners assert that compliance with the backup power rule could
    result in threats to public health and safety. For instance,
    petitioners state that the installation of a generator and its
    combustible fuel on the roof of a school or public building, where
    many transmitters are located, may pose a risk to public health and
    safety even when in compliance with law.[^76] Further, petitioners
    assert that the Commission failed to properly consider the length of
    time it would reasonably take for providers to comply with the rule.
    They contend that compliance will take a significant amount of time
    and the time allowed by the *Katrina Panel Order* is insufficient,
    because providers must obtain permits, do site inspections, conduct
    structural engineering analysis, renegotiate leases, obtain permits,
    ensure compliance with legal requirements, evaluate backup power
    needs, and order and install the necessary equipment.[^77]
    Petitioners also assert that compliance will take time because
    thousands of "non-critical" sites do not have backup power and many
    of the sites that do have backup power do not have the amount
    required.[^78] As discussed in greater detail below, petitioners
    also argue that physical and other practical limitations make it
    difficult or impossible to comply with the backup power rule.
    Finally, petitioners argue that the Commission did not adequately
    consider the economic burden the rule will impose.[^79]

25. We find that Petitioners' arguments regarding legal impediments and
    threat to public health and safety to be compelling and modify
    Section 12.2 to state that LECs and CMRS providers are not required
    to meet the backup power requirement if they demonstrate, through
    the reporting requirement described below, that such compliance is
    precluded by: (1) federal, state, tribal or local law; (2) risk to
    safety of life or health; or (3) private legal obligation or
    agreement. With respect to private legal obligations or agreements,
    LECs and CMRS providers should make efforts to revise agreements to
    enable rule compliance where possible, for example through
    renegotiations or renewals. Obviously, the Commission will
    disapprove of attempts to circumvent the rule through private
    agreements. We believe such exemptions are warranted because those
    impediments create a substantial burden for LECs and CMRS providers
    to overcome in order to comply with the rule that in some cases may
    be insurmountable. In the case of risk to safety of life or health,
    such an exemption is obviously in the public interest. As noted,
    *supra* at ¶ 7, some petitioners assert that the Commission should
    clarify that the backup power rule applies only to assets directly
    related to the provision of critical communications services.[^80]
    We agree that the requirement should be clarified to apply only to
    assets necessary to the provision of communications services and
    modify the rule accordingly. We decline, however to limit the rule
    to "critical" communications services, because, although that term
    was included in the NRIC best practice recommended by the Katrina
    Panel, it is not well defined and we believe, for public safety and
    public interest reasons, all assets necessary to the provision of
    communications services should have backup power. We also agree with
    AT&T that on-site power sources satisfy the requirement of this rule
    if such sources were originally designed to provide the minimum
    backup power capacity level required herein and the provider has
    implemented reasonable methods and procedures to ensure that
    batteries are regularly checked and replaced when they
    deteriorate.[^81] Finally, we find that the requirement should not
    be limited to assets normally powered from local "AC" commercial
    power. Regardless of the type of commercial power used, assets
    necessary to maintain communications should have backup power and be
    as reliable and resilient as possible. We also note that the NRIC
    best practice recommended by the Katrina Panel did not limit its
    recommendation in this way. Accordingly, we delete the reference to
    "AC" in the rule.

26. While today we address concerns raised by LECs and CMRS providers
    regarding their obligation to ensure emergency backup power, given
    the importance of backup power reserves during times of emergency,
    we will seek information regarding the extent to which LECs and CMRS
    providers are in compliance with this rule. Accordingly, we also
    modify Section 12.2 of our rules to require LECs and CMRS providers
    to file reports with the Commission that identify the following
    information: (1) an inventory listing of each asset that was
    designed to comply with the backup power mandate; (2) an inventory
    listing of each asset where compliance is precluded due to risk to
    safety or life or health; (3) an inventory listing of each asset
    where compliance is precluded by private legal obligation or
    agreement; (4) an inventory listing of each asset where compliance
    is precluded by Federal, state, tribal or local law; and (5) an
    inventory listing of each asset designed with less than the required
    emergency backup power capacity and that is not otherwise precluded
    from compliance for one of the three reasons identified in paragraph
    25, above.[^82] LECs and CMRS providers must file these reports
    within six months of the effective date of this requirement, and
    must include a description of facts supporting the basis of the
    LEC's or CMRS provider's claim of preclusion from compliance. For
    example, claims that a LEC or CMRS provider cannot comply with the
    backup power mandate due to a legal constraint must include the
    citation(s) to the relevant laws and, in order to be deemed
    precluded from compliance, the law or other legal constraint must
    prohibit the LEC or CMRS provider from complying with the backup
    power requirement. The mere need to obtain a permit or other
    approval will not be deemed to preclude compliance with the backup
    power requirement. Claims that a LEC or CMRS provider cannot comply
    with the backup power mandate with respect to a particular asset due
    to a private legal obligation or agreement must include the relevant
    terms of the obligation or agreement and the dates on which the
    relevant terms of the agreement became effective and are scheduled
    to expire. Claims that a LEC or CMRS provider cannot comply with the
    backup power mandate with respect to a particular asset due to risk
    to safety of life or health must include a description of the
    particular public safety risk and sufficient facts to demonstrate
    substantial risk of harm. We direct the PSHSB to develop an
    appropriate auditing program to ensure that carriers\' exclusion
    filings are reasonable and accurate.

27. LECs or CMRS providers identifying assets designed with less than
    the required emergency backup power capacity and not otherwise
    precluded from compliance for one of the three reasons listed above
    must comply with the backup power requirement or file, within 12
    months from the effective date of the rule, a certified emergency
    backup power compliance plan that is subject to Commission review.
    That plan must describe how, in the event of a commercial power
    failure, the LEC or CMRS provider intends to provide emergency
    backup power to 100 percent of the area covered by any non-compliant
    asset, relying on on-site and/or portable backup power sources or
    other sources as appropriate. The emergency backup power must be
    sufficient for service coverage as follows: a minimum 24 hours of
    emergency backup power for assets inside central offices and eight
    hours for other assets such as cell sites, remote switches, and
    digital loop carrier system remote terminals. The provider must be
    able to ensure backup power is available for 100 percent of the area
    covered by any non-compliant asset pursuant to the emergency backup
    power compliance plan on the date that the plan is filed. All
    reports and plans required by Section 12.2 of the Commission's rules
    will be automatically afforded confidentiality, because the
    information in those reports and plans is sensitive, for both
    national security and/or commercial reasons. This reporting
    requirement should not be burdensome in light of many LEC and CMRS
    provider arguments that they already have business continuity plans
    that address the issue of backup power and in light of the fact that
    the plan is not due until 12 months after the effective date of the
    modified rule which will require Office of Management and Budget
    approval before going into effect. In any event such burdens are
    outweighed by the importance of having backup power for
    communications assets.

28. Petitioners argue that the Commission failed to consider the length
    of time it would reasonably take for CLECs and CMRS providers to
    comply with the rule and that it will take significant time to
    evaluate backup power needs, conduct structural engineering
    analyses, renegotiate leases if needed, prepare necessary
    applications for permits and other authorizations, ensure compliance
    with all applicable building codes and environmental regulations,
    coordinate with counsel, architects, construction personnel and
    government officials, order and receive the necessary equipment, and
    properly install the backup power source.[^83] We note that the
    *Katrina Panel Order* was released on June 8, 2007, almost four
    months ago, and LECs and CMRS providers have known of the backup
    power requirement since that time. Further, the modified backup
    power rule adopted herein will not go into effect until OMB approves
    the new information collection, giving providers additional time to
    come into compliance. To the extent LECs and CMRS providers identify
    non-compliant assets, they will receive even more time to file
    emergency backup power compliance plans. In addition, the
    modifications to the rule mitigate these concerns by exempting
    assets from compliance when precluded by law, private legal
    obligation or agreement, or risk to safety of life or health and by
    allowing an emergency backup power compliance plan in cases where
    assets do not comply with the 8-24 hour rule and are not subject to
    the exceptions. As such, we believe that it will be feasible for
    providers to comply with the rule.

29. Several petitioners argue that compliance with the backup power rule
    is burdensome due to physical and other practical limitations, that
    the required space might not be available at many sites, and that
    providers may be forced to modify structures containing cell
    transmitters or to build new structures.[^84] They assert, for
    example, that roofs and floors need to be designed to support the
    weight of power sources, that many rooftop cell sites were not
    engineered with the additional weight requirements made necessary by
    the backup power rule, and that many of those structures may simply
    not be able to physically support the weight of additional batteries
    or a generator.[^85] Petitioners also argue that there is not enough
    space at many cell sites to add additional backup power sources and
    note that cell transmitters are often placed in locations with
    limited room, such as building rooftops, church steeples and inside
    buildings.[^86] USTelecom notes that some remote terminals are
    physically too small to support a backup battery or a battery over a
    certain size.[^87] T-Mobile reports that, in the case of liquid
    propane-fueled generators, Occupational Safety and Health
    Administration requirements mandate a 10-foot radius clearance
    between the liquid propane fuel tank and its ignition source.[^88]
    T-Mobile argues that this could substantially increase the amount of
    space needed to install a backup power source.[^89]

30. We are not convinced that LECs and CMRS providers should be excused
    from having emergency backup power solely because they have chosen
    to place their assets at locations with limited weight or space
    capacities. The ultimate goal of this rule is to ensure that
    carriers have sufficient emergency backup power, particularly during
    times of emergencies. We recognize that, in order to comply with the
    rule, some carriers may have to modify sites to accommodate
    additional equipment or, in some cases, find other, more suitable,
    locations for their assets. We believe, however, that any such
    burdens are far outweighed by the ultimate goal of this rule. For
    similar reasons, we also reject the notion that carriers should be
    excused from complying with the rule for vague "practical" reasons.
    Having said this, however, a carrier could be excused from the rule
    to the extent that the carrier can demonstrate that an asset with
    purported physical constraints fall into one of the three exceptions
    listed above. Additionally, where assets do not comply with the 8-24
    hour rule and are not subject to the exceptions, we now allow an
    emergency backup power compliance plan.

31. Although petitioners argue that the economic burden that the backup
    power rule will impose is substantial, the record before the
    Commission showed that several carriers have already deployed
    back-power power capabilities, some of which allow them to remain in
    operation for several days in the event of a loss of main
    power.[^90] In any event, we find that the benefits of ensuring
    sufficient emergency backup power, especially in times of crisis
    involving possible loss of life or injury, outweighs the fact that
    carriers may have to spend resources, perhaps even significant
    resources, to comply with the rule.[^91] Petitioners assert that
    compliance may be costly; however, the record does not show that it
    is "cost-prohibitive" for carriers. Moreover, the rule
    modifications, including new exemptions described above and the
    provision that providers file an emergency backup power compliance
    plan to ensure 100 percent coverage in areas covered by
    non-compliant assets, will decrease any economic burden
    substantially. Finally, we find that the goal of ensuring that
    carriers' networks have sufficient emergency backup power outweighs
    the economic burden described by petitioners and particularly the
    reduced economic burden in light of the rule modifications adopted
    herein. The need for backup power in the event of emergencies has
    been made abundantly clear by recent events, and the cost of failing
    to have such power may be measured in lives lost.

32. Some Petitioners argue that, contrary to the ultimate goal of
    protecting the provision of services, the backup power rule will not
    advance, but will actually risk undermining, carriers' emergency
    preparedness goals and efforts to achieve important business
    continuity and disaster recovery goals.[^92] Petitioners contend
    that the rule deprives carriers of the flexibility necessary to make
    intelligent and efficient plans for network resiliency as well as
    giving carriers the flexibility to respond to disasters in real time
    while remaining in compliance with the Commissions rules.[^93]
    Petitioners assert that, by diverting manpower and resources away
    from more appropriate efforts to tailor emergency communications
    plans, and by denying carriers the ability to move resources away
    from areas not impacted to those that have been impacted, the rule
    undermines rather than promotes the important goal of public
    safety.[^94]

33. We recognize that carriers need some level of flexibility in the
    design and deployment of their networks. This need, however, must be
    balanced with the critical goal of ensuring that communications
    networks has sufficient backup power, particularly during times of
    disaster. The modifications we make today strike a fair and
    equitable balance of these two interests. The modified rule we adopt
    today will ensure that LECs, including ILECs and CLECs, as well as
    CMRS providers maintain sufficient level of emergency backup power
    for assets that are necessary to maintain communications and that
    are normally maintained by commercial power. At the same time, the
    modifications adopted herein provide some level flexibility, both in
    terms of the exceptions provided and the requirements for submission
    of an emergency backup power compliance plan in cases where
    providers are not compliant. Moreover, inclusion of on-site back up
    power does not preclude the ability of carriers to maintain
    strategic stores of fuel, batteries or other backup equipment in
    other localities as a further layer of redundancy. Petitioners argue
    that enforcement could also lead to the termination or disruption of
    wireless cell sites, threatening the availability of service,
    including E-911 service.[^95] Petitioners further contend that
    carriers may have little choice but to shut down or move certain
    transmitters rather than risk operating in violation of the new rule
    or endangering public health and safety.[^96] NENA disagrees and
    contends that these arguments suggest that cellular providers should
    be immune from any disruptive regulatory discipline.[^97] We believe
    that the exemptions now provided along with the requirement to
    develop an emergency backup power compliance plan in cases where
    assets do not comply with the 8-24 hour rule and are not subject to
    the exceptions described herein will mitigate these concerns.

34. [Paging Carriers]{.underline}. The American Association of Paging
    Carriers (AAPC) argues that the Commission did not intend to apply
    the backup power rule to paging carriers and should so clarify.
    Alternatively, AAPC asserts that, if the Commission did intend for
    this rule to apply to paging carriers, the Commission should
    reconsider and exclude paging carriers[^98] or instead adopt the
    Katrina Panel's actual recommendation on this issue, as set forth in
    the Katrina Panel Report. The backup power rule adopted in the
    *Katrina Panel Order* requires commercial mobile radio service
    (CMRS) providers to have emergency backup power. CMRS providers that
    have no more than 500,000 subscribers are exempt from this rule.
    Therefore, paging carriers that are CMRS providers with more than
    500,000 subscribers must comply with the rule. Paging services are a
    critical part of emergency response. Many first responders,
    hospitals and critical infrastructure providers rely on paging
    services during emergencies.[^99] Therefore, it is critical that
    these services be available during crises. Backup power at paging
    carrier facilities will help ensure the availability of these
    services. The importance of paging services is further demonstrated
    by the fact that paging carriers participate in the Commercial
    Mobile Service Alert Advisory Committee and are subject to the
    Commission's Part 4 outage reporting rules. For these reasons and
    those set forth below, we modify Section 12.2 to clarify that the
    rule applies to CMRS providers, *as defined in Section 20.9 of the
    Commission's rules*.

35. AAPC argues that the Commission intended to exclude paging carriers
    from this backup power rule. AAPC asserts that the *Katrina Panel
    Order* bases the CMRS classification in Section 12.2 on a definition
    developed for the *E-911 Proceeding*[^100] and, because paging
    carriers do not provide E-911 service, the inference is that the
    Commission intended to exclude paging carriers from this rule. The
    parts of the *Katrina Panel Order* cited by AAPC, however, do not
    define CMRS providers, but instead provide an exemption for
    non-nationwide CMRS providers with no more than 500,000 subscribers.
    In a footnote, the Commission merely stated that this exemption is
    based on the Tier III CMRS definition. AAPC contends that the
    etymology of the backup power rule supports a finding that the
    Commission intended to exclude paging carriers and to apply the rule
    only to entities that are required to provide E-911 service as
    defined in Section 20.18 of the Commission's rules.[^101] AAPC notes
    that the Katrina Panel made its backup power recommendation "in
    order to ensure a more robust E-911 service" and that, when
    requesting public comment on this recommendation, the Commission
    explained that the Panel "recommends that the Commission encourage
    the implementation of certain NRIC best practices intended to
    promote the reliability and resiliency of the 911 and E911
    architecture."[^102] However, the backup power rule includes no such
    limitations and, in the *Notice*, the Commission specifically sought
    comment on whether the Katrina Panel's observations warranted
    additional measures or steps beyond the report's specific
    recommendations and welcomed suggestions and recommendations
    regarding additional measures or actions beyond the Panel's
    recommendations.[^103] The Commission also sought comment on whether
    it should rely on voluntary consensus recommendations, as advocated
    by the Katrina Panel, or whether it should rely on other measures
    for enhancing readiness and promoting more effective response
    efforts. Further, AAPC argues that the deliberate use of the term
    "cell sites" in the rule supports the conclusion that the Commission
    did not intend that the rule apply to paging carriers because paging
    carriers do not operate cell sites in their networks.[^104] The
    reference to cell sites, however, is only one example of an asset
    that is normally powered from local commercial power and the assets
    identified in the rule are not an exhaustive list.[^105]

36. AAPC requests, in the event that the Commission did intend to apply
    the backup power rule to paging carriers, that the rule be modified
    to ensure that it does not apply to paging carriers. AAPC argues
    that it is unreasonable to lump paging networks together with other
    types of CMRS networks for purposes of this rule without considering
    the particular engineering and cost characteristics of paging
    networks themselves. Although AAPC argues that applying the
    requirement to all paging base stations and terminals would be
    particularly troubling for paging carriers,[^106] the burden will be
    mitigated by the rule modifications adopted herein. Additionally,
    the burden for paging carriers would not necessarily be any more
    onerous for paging carriers than for other CMRS providers. Paging
    providers use a variety of facilities to provide coverage which are,
    in most cases not that different from the facilities of other CMRS
    providers. The fill-in facilities employed by paging providers are
    similar in size and power requirements as those used by other CMRS
    providers. In many instances, paging providers use high-powered
    transmitters that are located in multiple transmitter sites. While
    there may be challenges to overcome such as space, zoning and
    structural limitations for these facilities, they are no more
    onerous than those faced by other CMRS providers. In addition, the
    backup power rule might be less burdensome for paging carriers than
    for other CMRS providers, because the number of fill-in paging sites
    that paging carriers deploy is likely less than the more extensive
    deployment of assets required by other CMRS providers. AAPC asserts
    that the Commission should define CMRS as those services that are
    identified in Section 20.18(a) of the Commission's rules, as it did
    for purposes of Section 605(a) of the WARN Act, where the Commission
    defined the statutory phrase "commercial mobile service."[^107] That
    definition, however was limited to Section 605(a) of the WARN Act
    and was done for specific purposes of that section of the Act that
    are not relevant to the backup power rule.[^108] Further, the
    membership of the Commercial Mobile Service Alert Advisory Committee
    established pursuant to the WARN Act includes paging carriers. In
    light of these factors, we decline to modify the rule as suggested
    by AAPC, and clarify that paging carriers are required to comply.

37. [Distributed Antenna System (DAS) Nodes and other non-traditional
    sites]{.underline}. NextG, MetroPCS and other petitioners ask the
    Commission to clarify that DAS Nodes and other "non-traditional"
    sites, such as cellular repeater sites, micro-cell and pico-cell
    locations, electric poles, light poles, and flagpoles, are not "cell
    sites" as the term is used in the Commission's new backup power
    rule.[^109] In the alternative, these petitioners request that the
    Commission reconsider and amend the rule to eliminate the backup
    power requirement for DAS Nodes and other "non-traditional"
    sites.[^110] Other petitioners make similar arguments for
    "non-traditional" sites and emphasize the burden of complying with
    the backup power rule due to physical constraints and economic
    resources.[^111] NextG explains that it provides telecommunications
    services to wireless carriers via a network architecture that uses
    fiber-optic cable and small antennas mounted in the public
    rights-of-way on infrastructure such as utility poles, street lights
    and traffic signal poles. NextG argues that DAS Nodes should not be
    treated as a cell site because the DAS Node does not include some of
    the features typically associated with a cell site. The antenna is
    not associated with a base station or network switching equipment at
    the DAS Node site.[^112] NextG and MetroPCS maintain that even if
    the Commission does treat the DAS Node as a cell site this equipment
    should be exempt from the backup power rule because it is
    "technologically, financially, and politically infeasible" to
    install eight hours of backup power.[^113] DAS Forum argues that the
    impact due to the loss of power to a portion of a DAS network is far
    less than the loss of power to a traditional cell site because the
    balance of the DAS network continues to function when one node is
    damaged.[^114]

38. We decline to exempt DAS Nodes or other sites from the emergency
    backup power rule.[^115] Rather, we believe that to the extent these
    systems are necessary to provide communications services, they
    should be treated similarly to other types of assets that are
    subject to the rule. We note that many of the arguments made by
    petitioners are similar to the physical constraint arguments raised
    by other parties. As we stated earlier, we see no reason why LECs
    and CMRS providers who choose to place assets at locations with
    limited physical capacities should generally be excused from
    compliance with the rule. We realize that many providers have begun
    to use DAS and other small antenna systems as part of their
    communications networks. That fact alone, however, is far outweighed
    by the need to ensure a reliable communications network. To the
    extent petitioners raise concerns regarding legal impediments,
    private agreement constraints and safety risk issues, we note that
    the modifications to the rule we make today should address those
    concerns. DAS Forum and PCIA argue that the backup power rule will
    adversely impact the public interest and Commission policy goals,
    because the increased expense of compliance will prevent wireless
    carriers from further deploying their networks in this manner and
    that this will decrease capacity, coverage and reliability and
    affect emergency communications and wireless E911 coverage.[^116]
    Petitioners have not presented sufficient evidence that the backup
    power rule will prevent wireless carriers from deploying their
    networks, particularly in light of the reduced burden of compliance
    that will result from the rule modifications we adopt in this Order
    on Reconsideration. Moreover, as noted above, the Commission finds
    that the benefits of ensuring backup power for communications assets
    outweighs any economic burden that LECs and CMRS providers may incur
    as a result of this rule.

# CONCLUSION

39. For the reason stated above, we deny petitioners' requests that we
    rescind Section 12.2 of the Commission's rules, but find that the
    petitioners have presented an adequate basis for modifying this
    backup power rule as detailed above and in Appendix B.

# Procedural matters

40. [Supplemental Final Regulatory Flexibility Analysis]{.underline}. As
    required by Section 603 of the Regulatory Flexibility Act (RFA), 5
    U.S.C. § 604, the Commission has prepared a Supplemental Final
    Regulatory Flexibility Analysis of the possible impact of the rule
    changes contained in this Order on Reconsideration on small
    entities. The Supplemental Final Regulatory Flexibility Act analysis
    is set forth in Appendix C, *infra*. The Commission's Consumer &
    Government Affairs Bureau, Reference Information Center, will send a
    copy of this Order, including the Supplemental Final Regulatory
    Flexibility Act Analysis, to the Chief Counsel for Advocacy of the
    Small Business Administration.

41. [Final Paperwork Reduction Act of 1995 Analysis]{.underline}. This
    Order on Reconsideration contains new information collection
    requirements subject to the Paperwork Reduction Act of 1995 (PRA),
    Public Law 104-13. It will be submitted to the Office of Management
    and Budget ("OMB") for review under Section 3507(d) of the PRA. OMB,
    the general public, and other Federal agencies are invited to
    comment on the new or modified information collection requirements
    contained in this proceeding. In addition, we note that pursuant to
    the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
    *see* 44 U.S.C. 3506(c)(4), we previously sought specific comment on
    how the Commission might "further reduce the information collection
    burden for small business concerns with fewer than 25 employees." In
    this present document, we have assessed the effects of requiring
    LECs and CMRS providers to have back-up power or emergency back-up
    power compliance plans and to file reports regarding compliance with
    these requirements as set forth in Section 12.2 of our rules. We
    have specifically exempt LECs that meet the definition of a Class B
    company set forth in Section 32.11(b)(2) of our rules,[^117] and
    non-nationwide CMRS providers with no more than 500,000 subscribers.
    We find that this imposes minimal regulation on small entities to
    the extent consistent with our goal of advancing our public safety
    mission.

42. [Congressional Review Act Analysis.]{.underline} The Commission will
    send a copy of this Order on Reconsideration in a report to be sent
    to Congress and the Government Accountability Office pursuant to the
    Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A).

43. [Alternative Formats.]{.underline} Alternative formats (computer
    diskette, large print, audio cassette, and Braille) are available to
    persons with disabilities by sending an e-mail to FCC504@fcc.gov or
    calling the Consumer and Governmental Affairs Bureau at (202)
    418-0530, TTY (202) 418-0432.

# ordering clauses

44. Accordingly, IT IS ORDERED, pursuant to Sections 1, 4(i)-(k), 4(o),
    201, 218, 219, 301, 303(g), 303(j), 303(r), 332, 403, 405, 621(b)(3)
    and 621(d) of the Communications Act of 1934, as amended, 47 U.S.C.
    §§ 151, 154(i)-(k), 154(o), 201, 218, 219, 301, 303(g), 303(j),
    303(r), 332, 403, 405, 541(b)(3), and 541(d), and Sections 1.3 and
    1.106 of the Commission's rules, 47 C.F.R. §§ 1.3, 1.106, that this
    Order on Reconsideration in EB Docket No. 06-119 and WC Docket No.
    06-63 IS ADOPTED.

45. IT IS FURTHER ORDERED, that the Petitions for Reconsideration filed
    by The American Association of Paging Carriers, the DAS Forum,
    MetroPCS Communications, Inc., NextG Networks, Inc., PCIA -- The
    Wireless Infrastructure Association (PCIA), and The United States
    Telecom Association ARE GRANTED to the extent discussed above, and
    the remainder of those petitions ARE DENIED.

46. IT IS FURTHER ORDERED that Section 12.2 of the Commission's rules IS
    AMENDED as specified in Appendix B, and Section 12.2 shall be
    effective on the date of Federal Register notice announcing OMB
    approval of the information collection now contained in that rule.

47. IT IS FURTHER ORDERED that the Commission\'s Consumer and
    Governmental Affairs Bureau, Reference Information Center, SHALL
    SEND a copy of this Order on Reconsideration, including the
    Supplemental Final Regulatory Flexibility Analysis, to the Chief
    Counsel for Advocacy of the Small Business Administration.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX A**

**List of Petitions for Clarification and/or Reconsideration, Comments,
and *Ex Parte* Comments**

**EB Docket No. 06-119**

**WC Docket No. 06-63**

[Petitions for Reconsideration]{.underline}

1.  American Association of Paging Carriers

2.  CTIA-The Wireless Association®[^118]

3.  The DAS Forum

4.  MetroPCS Communications, Inc.

5.  NextG Networks, Inc.

6.  PCIA-The Wireless Infrastructure Association

7.  United States Telecom Association

[Timely Filed Comments Responding to Petitions for
Reconsideration]{.underline}

1.  BridgeCom International, Inc.; Broadview Networks, Inc.; Cavalier
    Telephone, LLC; DeltaCom, Inc.; Eureka Telecom, Inc. d/b/a
    InfoHighway Communications; IDT Corporation; Integra Telecom, Inc.;
    McLeodUSA Telecommunications Services, Inc.; Mpower Communications
    Corp.; Norlight Telecommunications, Inc.; Pacific Lightnet, Inc.;
    RCN Telecom Services, Inc.; RNK, Inc.; Talk America Holdings, Inc.;
    TDS Metrocom, LLC; U.S. TelePacific Corp. d/b/a TelePacific
    Telecommunications

2.  Independent Telephone and Telecommunications Alliance

3.  National Hydrogen Association

4.  Sprint Nextel Corporation

5.  T-Mobile USA, Inc.

[*Ex Parte* Comments]{.underline}

1.  AT&T Services, Inc.

2.  Cellular South and Rural Cellular Corporation; Leap Wireless;
    MetroPCS Communications, Inc.; SunCom Wireless; and United States
    Cellular Corporation

3.  CTIA-The Wireless Association®

4.  CTIA-The Wireless Association® and United States Telecom Association

5.  The DAS Forum

6.  Embarq, United States Telecom Association, Verizon, and Windstream

7.  The National Emergency Number Association

8.  NextG Networks, Inc.

9.  PCIA-The Wireless Infrastructure Association

10. United States Telecom Association

11. Verizon

12. Verizon Wireless

**APPENDIX B**

**Final Rule Changes**

For the reasons discussed in the preamble, the Federal Communications
Commission amends Part 12 of Chapter I of Title 47 of the Code of
Federal Regulations (C.F.R.) as follows:

**[PART 12 -- REDUNDANCY OF COMMUNICATIONS SYSTEMS]{.underline}**

1\. Section 12.2 is amended to read as follows:

**[§ 12.2 Backup Power.]{.underline}**

(a) Except to the extent set forth in Section 12.2(b) and Section
    12.2(c)(4) of the Commission's rules, local exchange carriers,
    including incumbent local exchange carriers and competitive local
    exchange carriers (collectively, LECs), and commercial mobile radio
    service (CMRS) providers, as defined in Section 20.9 of the
    Commission's rules, must have an emergency backup power source
    (*e.g.*, batteries, generators, fuel cells) for all assets necessary
    to maintain communications that are normally powered from local
    commercial power, including those assets located inside central
    offices, cell sites, remote switches and digital loop carrier system
    remote terminals. LECs and CMRS providers must maintain emergency
    backup power for a minimum of twenty-four hours for assets that are
    normally powered from local commercial power and located inside
    central offices, and eight hours for assets that are normally
    powered from local commercial power and at other locations,
    including cell sites, remote switches and digital loop carrier
    system remote terminals. Power sources satisfy this requirement if
    they were originally designed to provide the minimum backup power
    capacity level required herein and the provider has implemented
    reasonable methods and procedures to ensure that the power sources
    are regularly checked and replaced when they deteriorate. LECs that
    meet the definition of a Class B company as set forth in Section
    32.11(b)(2) of the Commission's rules and non-nationwide CMRS
    providers with no more than 500,000 subscribers are exempt from this
    rule.

(b) LECs and CMRS providers are not required to comply with
    paragraph (a) for assets described above where the LEC or CMRS
    provider demonstrates, through the reporting requirement described
    below, that such compliance is precluded by:

> \(1\) Federal, state, tribal or local law;
>
> \(2\) Risk to safety of life or health; or
>
> \(3\) Private legal obligation or agreement.

(c) Within six months of the effective date of this requirement, LECs
    and CMRS providers subject to this section must file reports with
    the Chief of the Public Safety & Homeland Security Bureau.

> \(1\) Each report must list the following:

(i) Each asset that was designed to comply with the applicable backup
    power requirement as defined in paragraph (a);

(ii) Each asset where compliance with paragraph (a) is precluded due to
     risk to safety of life or health;

(iii) Each asset where compliance with paragraph (a) is precluded by a
      private legal obligation or agreement;

(iv) Each asset where compliance with paragraph (a) is precluded by
     Federal, state, tribal or local law; and

(v) Each asset that was designed with less than the emergency backup
    power capacity specified in paragraph (a) and that is not precluded
    from compliance under paragraph (b).

> \(2\) Reports listing assets falling within the categories identified
> in paragraphs (c)(1)(ii) through (iv) must include a description of
> facts supporting the basis of the LEC's or CMRS provider's claim of
> preclusion from compliance. For example, claims that a LEC or CMRS
> provider cannot comply with this section due to a legal constraint
> must include the citation(s) to the relevant law(s) and, in order to
> demonstrate that it is precluded from compliance, the provider must
> show that the legal constraint prohibits the provider from compliance.
> Claims that a LEC or CMRS provider cannot comply with this section
> with respect to a particular asset due to a private legal obligation
> or agreement must include a description of the relevant terms of the
> obligation or agreement and the dates on which the relevant terms of
> the agreement became effective and are set to expire. Claims that a
> LEC or CMRS provider cannot comply with this section with respect to a
> particular asset due to risk to safety of life or health must include
> a description of the safety of life or health risk and facts that
> demonstrate a substantial risk of harm.
>
> \(3\) For purposes of complying with the reporting requirements set
> forth in paragraphs (c)(1)(i) through (v), in cases where more than
> one asset necessary to maintain communications that are normally
> powered from local commercial power are located at a single site
> (*i.e.*, within one central office), the reporting entity may identify
> all of such assets by the name of the site.
>
> \(4\) In cases where a LEC or CMRS provider identifies assets pursuant
> to paragraph (c)(1)(v), such LEC or CMRS provider must comply with the
> backup power requirement in paragraph (a) or, within 12 months from
> the effective date of this rule, file with the Commission a certified
> emergency backup power compliance plan. That plan must certify that
> and describe how the LEC or CMRS provider will provide emergency
> backup power to 100 percent of the area covered by any non-compliant
> asset in the event of a commercial power failure. For purposes of the
> plan, a provider may rely on on-site and/or portable backup power
> sources or other sources, as appropriate, sufficient for service
> coverage as follows: a minimum of 24 hours of service for assets
> inside central offices and eight hours for other assets, including
> cell sites, remote switches, and digital loop carrier system remote
> terminals. The emergency backup power compliance plans submitted are
> subject to Commission review.
>
> \(5\) Reports submitted pursuant to this paragraph must be supported
> by an affidavit or declaration under penalty of perjury and signed and
> dated by a duly authorized representative of the LEC or CMRS provider
> with personal knowledge of the facts contained therein.
>
> \(6\) Information filed with the Commission pursuant to subsection (c)
> of this rule shall be automatically afforded confidentiality in
> accordance with the Commission's rules.
>
> \(7\) LECs that meet the definition of a Class B company as set forth
> in Section 32.11(b)(2) of the Commission's rules and non-nationwide
> CMRS providers with no more than 500,000 subscribers are exempt from
> this reporting requirement.
>
> **APPENDIX C**

**Supplemental Final Regulatory Flexibility Analysis**

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^119] an Initial Regulatory Flexibility Analysis (IRFA) was
    incorporated in the Notice of Proposed Rulemaking *(Notice)* in EB
    Docket No. 06-119.[^120] The Commission sought written public
    comment on the proposals in this docket, including comment on the
    IRFA. On June 8, 2007, the Commission released an Order in EB Docket
    No. 06-119 which included a Final Regulatory Flexibility Analysis
    (FRFA).[^121] In this Order on Reconsideration, the Commission
    includes a Supplemental FRFA which conforms to the RFA.[^122]

**A. Need for, and Objectives of, the Rules**

48. In the Order released on June 8, 2007, the Commission adopted a rule
    requiring local exchange carriers (LECs), other than those that meet
    the definition of a Class B company as set forth in Section
    32.11(b)(2) of the Commission's rules,[^123] and commercial mobile
    radio service (CMRS) providers, other than non-nationwide CMRS
    providers with no more than 500,000 subscribers, to have an
    emergency backup power source for all assets that are normally
    powered from local AC commercial power, including those inside
    central offices, cell sites, remote switches and digital loop
    carrier system remote terminals. The Commission received seven
    petitions seeking reconsideration of this rule on various grounds,
    including the inability of carriers to comply with the rule due to
    legal constraints (*i.e.*, other Federal, state and local laws
    precluding compliance with the Commission's rule), constraints due
    to private legal obligation or agreement that precludes the ability
    of carriers to store additional backup equipment necessary to comply
    with the rule, risk to safety of life or health, physical
    constraints, and economic burden. In response to the petitions for
    reconsideration, the Commission amends its rule to exempt assets
    where the LEC or CMRS provider has demonstrated that it cannot
    comply with the rule due to federal, state, tribal or local law;
    risk to safety of life or health; or private legal obligation or
    agreement. The Commission also amended the rule to require LECs and
    CMRS providers to file reports that list each asset: (1) that was
    designed to comply with the applicable backup power requirement; (2)
    where compliance is precluded do to risk to safety of life or
    health; (3) where compliance is precluded by a private legal
    obligation or agreement; (4) where compliance is precluded by
    Federal, state, tribal or local law; and (5) that was designed with
    less than the required emergency backup power capacity and is not
    precluded from compliance for the reasons stated in (2), (3) or (4).
    For assets in category (5), LECs and CMRS providers must comply with
    the backup power requirements or file a certified emergency backup
    power compliance plan that certifies that the LEC or CMRS provider
    will ensure 100 percent coverage in each of the areas covered by any
    non-compliant asset. Further, the Commission clarifies that the rule
    applies only to assets that are necessary to the provision of
    communications services that are normally powered from local
    commercial power. Finally, the Commission clarified that that
    on-site power sources satisfy the requirement of this rule if such
    sources were originally designed to provide the minimum backup power
    capacity level required and the provider has implemented reasonable
    methods and procedures to ensure that batteries are regularly
    checked and replaced when they deteriorate.

49. Although the rule now requires that LECs and CMRS providers file a
    report, and in some circumstances a backup power compliance plan,
    the amendments to the rule significantly reduce the burden on LECs
    and CMRS providers by providing appropriate relief from the
    requirement that they have backup power sources for all assets
    normally powered by commercial power. As noted above, the modified
    rule exempts assets where compliance is precluded by risk to safety
    of life or health, private legal obligation or agreement, or
    federal, state, tribal or local law, and allows providers with
    non-compliant assets that are not otherwise exempt to file an
    emergency backup power plan.

    **B. Summary of Significant Issues Raised by the Public**

50. MetroPCS Communications, Inc. (MetroPCS) argues that the
    Commission's burden estimate in the FRFA regarding wireless carriers
    was based on mistakes of fact and that compliance is not feasible
    for MetroPCS, which qualifies as a non-nationwide provider with more
    than 500,000 subscribers.[^124] MetroPCS asserts that the Commission
    erroneously concluded that the requirement will not create an undue
    burden because several communications providers reported in their
    comments that they already maintain emergency backup power.[^125]
    MetroPCS contends that, while backup power at switch sites is
    common, no wireless service provider has reported that it routinely
    provides 8 hours of backup power at all remote sites.[^126] As noted
    above, several petitioners argued that the Commission did not
    adequately consider the burden that the backup power rule would
    impose on LECs and CMRS providers.

    **C. Description and Estimate of the Number of Small Entities to
    Which the Rules Will Apply**

51. The RFA directs agencies to provide a description of, and, where
    feasible, an estimate of, the number of small entities that may be
    affected by the rules adopted herein.[^127] The RFA generally
    defines the term "small entity" as having the same meaning as the
    terms "small business," "small organization," and "small
    governmental jurisdiction."[^128] In addition, the term "small
    business" has the same meaning as the term "small business concern"
    under the Small Business Act.[^129] A "small business concern" is
    one which: (1) is independently owned and operated; (2) is not
    dominant in its field of operation; and (3) satisfies any additional
    criteria established by the Small Business Administration
    (SBA).[^130]

52. Nationwide, there are a total of approximately 22.4 million small
    businesses, according to SBA data.[^131] A "small organization" is
    generally "any not-for-profit enterprise which is independently
    owned and operated and is not dominant in its field."[^132]
    Nationwide, as of 2002, there were approximately 1.6 million small
    organizations.[^133] The term "small governmental jurisdiction" is
    defined generally as "governments of cities, towns, townships,
    villages, school districts, or special districts, with a population
    of less than fifty thousand."[^134] Census Bureau data for 2002
    indicate that there were 87,525 local governmental jurisdictions in
    the United States.[^135] We estimate that, of this total, 84,377
    entities were "small governmental jurisdictions."[^136] Thus, we
    estimate that most governmental jurisdictions are small.

53. In the following paragraphs, the Commission further describes and
    estimates the number of small entity licensees that may be affected
    by the rules the Commission adopts in this Order. The rule changes
    affect LECs, including both incumbent LECs (ILECs) and competitive
    LECs (CLECs), and CMRS providers.

54. Since this Order applies to multiple services, this FRFA analyzes
    the number of small entities affected on a service-by-service basis.
    In the case of CMRS providers, when identifying small entities that
    could be affected by the Commission's new rules, this FRFA provides
    information that describes auctions results, including the number of
    small entities that were winning bidders. However, the number of
    winning bidders that qualify as small businesses at the close of an
    auction does not necessarily reflect the total number of small
    entities currently in a particular service. The Commission does not
    generally require that licensees later provide business size
    information, except in the context of an assignment or a transfer of
    control application that involves unjust enrichment issues.

55. *[Cellular Licensees]{.underline}.* The SBA has developed a small
    business size standard for small businesses in the category
    "Cellular and Other Wireless Telecommunications."[^137] Under that
    SBA category, a business is small if it has 1,500 or fewer
    employees.[^138] For the census category of "Cellular and Other
    Wireless Telecommunications," Census Bureau data for 2002 show that
    there were 1,397 firms in this category that operated for the entire
    year.[^139] Of this total, 1,378 firms had employment of 999 or
    fewer employees, and 19 firms had employment of 1,000 employees or
    more.[^140] Thus, under this category and size standard, the
    majority of firms can be considered small.

56. *[Broadband Personal Communications Service]{.underline}.* The
    broadband Personal Communications Service (PCS) spectrum is divided
    into six frequency blocks designated A through F, and the Commission
    has held auctions for each block. The Commission has created a small
    business size standard for Blocks C and F as an entity that has
    average gross revenues of less than \$40 million in the three
    previous calendar years.[^141] For Block F, an additional small
    business size standard for "very small business" was added and is
    defined as an entity that, together with its affiliates, has average
    gross revenues of not more than \$15 million for the preceding three
    calendar years.[^142] These small business size standards, in the
    context of broadband PCS auctions, have been approved by the
    SBA.[^143] No small businesses within the SBA-approved small
    business size standards bid successfully for licenses in Blocks A
    and B. There were 90 winning bidders that qualified as small
    entities in the C Block auctions. A total of 93 "small" and "very
    small" business bidders won approximately 40 percent of the 1,479
    licenses for Blocks D, E, and F.[^144] On March 23, 1999, the
    Commission reauctioned 155 C, D, E, and F Block licenses; there were
    113 small business winning bidders.[^145] On January 26, 2001, the
    Commission completed the auction of 422 C and F PCS licenses in
    Auction 35.[^146] Of the 35 winning bidders in this auction, 29
    qualified as "small" or "very small" businesses. Subsequent events
    concerning Auction 35, including judicial and agency determinations,
    resulted in a total of 163 C and F Block licenses being available
    for grant.

57. *[Specialized Mobile Radio]{.underline}.* The Commission awards
    "small entity" bidding credits in auctions for Specialized Mobile
    Radio (SMR) geographic area licenses in the 800 MHz and 900 MHz
    bands to firms that had revenues of no more than \$15 million in
    each of the three previous calendar years.[^147] The Commission
    awards "very small entity" bidding credits to firms that had
    revenues of no more than \$3 million in each of the three previous
    calendar years.[^148] The SBA has approved these small business size
    standards for the 900 MHz Service.[^149] The Commission has held
    auctions for geographic area licenses in the 800 MHz and 900 MHz
    bands. The 900 MHz SMR auction began on December 5, 1995, and closed
    on April 15, 1996. Sixty bidders claiming that they qualified as
    small businesses under the \$15 million size standard won 263
    geographic area licenses in the 900 MHz SMR band. The 800 MHz SMR
    auction for the upper 200 channels began on October 28, 1997, and
    was completed on December 8, 1997. Ten bidders claiming that they
    qualified as small businesses under the \$15 million size standard
    won 38 geographic area licenses for the upper 200 channels in the
    800 MHz SMR band.[^150] A second auction for the 800 MHz band was
    held on January 10, 2002 and closed on January 17, 2002 and included
    23 BEA licenses. One bidder claiming small business status won five
    licenses.[^151]

58. The auction of the 1,050 800 MHz SMR geographic area licenses for
    the General Category channels began on August 16, 2000, and was
    completed on September 1, 2000. Eleven bidders won 108 geographic
    area licenses for the General Category channels in the 800 MHz SMR
    band qualified as small businesses under the \$15 million size
    standard. In an auction completed on December 5, 2000, a total of
    2,800 Economic Area licenses in the lower 80 channels of the 800 MHz
    SMR service were sold. Of the 22 winning bidders, 19 claimed "small
    business" status and won 129 licenses. Thus, combining all three
    auctions, 40 winning bidders for geographic licenses in the 800 MHz
    SMR band claimed status as small business.

59. In addition, there are numerous incumbent site-by-site SMR licensees
    and licensees with extended implementation authorizations in the 800
    and 900 MHz bands. The Commission does not know how many firms
    provide 800 MHz or 900 MHz geographic area SMR pursuant to extended
    implementation authorizations, nor how many of these providers have
    annual revenues of no more than \$3 million or \$15 million (the
    special small business size standards), or have no more than 1,500
    employees (the generic SBA standard for wireless entities,
    discussed, *supra*). One firm has over \$15 million in revenues. The
    Commission assumes, for purposes of this analysis, that all of the
    remaining existing extended implementation authorizations are held
    by small entities.

60. *[Advanced Wireless Services]{.underline}.* In the *AWS-1 Report and
    Order*, the Commission adopted rules that affect applicants who wish
    to provide service in the 1710-1755 MHz and 2110-2155 MHz
    bands.[^152] The *AWS-1 Report and Order* defines a "small business"
    as an entity with average annual gross revenues for the preceding
    three years not exceeding \$40 million, and a "very small business"
    as an entity with average annual gross revenues for the preceding
    three years not exceeding \$15 million. The *AWS-1 Report and Order*
    also provides small businesses with a bidding credit of 15 percent
    and very small businesses with a bidding credit of 25 percent.

61. [*Incumbent Local Exchange Carriers (Incumbent LECs)*.]{.underline}
    As noted above, a "small business" under the RFA is one that, *inter
    alia*, meets the pertinent small business size standard (*e.g*., a
    telephone communications business having 1,500 or fewer employees),
    and "is not dominant in its field of operation."[^153] The SBA's
    Office of Advocacy contends that, for RFA purposes, small incumbent
    LECs are not dominant in their field of operation because any such
    dominance is not "national" in scope.[^154] We have therefore
    included small incumbent local exchange carriers in this RFA
    analysis, although we emphasize that this RFA action has no effect
    on Commission analyses and determinations in other, non-RFA
    contexts. Neither the Commission nor the SBA has developed a small
    business size standard specifically for incumbent local exchange
    services. The appropriate size standard under SBA rules is for the
    category Wired Telecommunications Carriers. Under that size
    standard, such a business is small if it has 1,500 or fewer
    employees.[^155] According to Commission data,[^156] 1,307 carriers
    have reported that they are engaged in the provision of incumbent
    local exchange services. Of these 1,307 carriers, an estimated 1,019
    have 1,500 or fewer employees and 288 have more than 1,500
    employees. Consequently, the Commission estimates that most
    providers of incumbent local exchange service are small businesses
    that may be affected by our action.

62. *[Competitive Local Exchange Carriers (Competitive LECs),
    Competitive Access Providers (CAPs), "Shared-Tenant Service
    Providers," and "Other Local Service Providers."]{.underline}*
    Neither the Commission nor the SBA has developed a small business
    size standard specifically for these service providers. The
    appropriate size standard under SBA rules is for the category Wired
    Telecommunications Carriers. Under that size standard, such a
    business is small if it has 1,500 or fewer employees.[^157]
    According to Commission data,[^158] 859 carriers have reported that
    they are engaged in the provision of either competitive access
    provider services or competitive local exchange carrier services. Of
    these 859 carriers, an estimated 741 have 1,500 or fewer employees
    and 118 have more than 1,500 employees. In addition, 16 carriers
    have reported that they are "Shared-Tenant Service Providers," and
    all 16 are estimated to have 1,500 or fewer employees. In addition,
    44 carriers have reported that they are "Other Local Service
    Providers." Of the 44, an estimated 43 have 1,500 or fewer employees
    and one has more than 1,500 employees. Consequently, the Commission
    estimates that most providers of competitive local exchange service,
    competitive access providers, "Shared-Tenant Service Providers," and
    "Other Local Service Providers" are small entities that may be
    affected by our action.

63. *[Cable and Other Program Distribution.]{.underline}* The Census
    Bureau defines this category as follows: "This industry comprises
    establishments primarily engaged as third-party distribution systems
    for broadcast programming. The establishments of this industry
    deliver visual, aural, or textual programming received from cable
    networks, local television stations, or radio networks to consumers
    via cable or direct-to-home satellite systems on a subscription or
    fee basis. These establishments do not generally originate
    programming material."[^159] The SBA has developed a small business
    size standard for Cable and Other Program Distribution, which is:
    all such firms having \$13.5 million or less in annual
    receipts.[^160] According to Census Bureau data for 2002, there were
    a total of 1,191 firms in this category that operated for the entire
    year.[^161] Of this total, 1,087 firms had annual receipts of under
    \$10 million, and 43 firms had receipts of \$10 million or more but
    less than \$25 million.[^162] Thus, under this size standard, the
    majority of firms can be considered small.

64. *[Cable Companies and Systems.]{.underline}* The Commission has also
    developed its own small business size standards, for the purpose of
    cable rate regulation. Under the Commission's rules, a "small cable
    company" is one serving 400,000 or fewer subscribers,
    nationwide.[^163] Industry data indicate that, of 1,076 cable
    operators nationwide, all but eleven are small under this size
    standard.[^164] In addition, under the Commission's rules, a "small
    system" is a cable system serving 15,000 or fewer subscribers.[^165]
    Industry data indicate that, of 7,208 systems nationwide, 6,139
    systems have under 10,000 subscribers, and an additional 379 systems
    have 10,000-19,999 subscribers.[^166] Thus, under this second size
    standard, most cable systems are small.

65. [*Cable System Operators*.]{.underline} The Communications Act of
    1934, as amended, also contains a size standard for small cable
    system operators, which is "a cable operator that, directly or
    through an affiliate, serves in the aggregate fewer than 1 percent
    of all subscribers in the United States and is not affiliated with
    any entity or entities whose gross annual revenues in the aggregate
    exceed \$250,000,000."[^167] The Commission has determined that an
    operator serving fewer than 677,000 subscribers shall be deemed a
    small operator, if its annual revenues, when combined with the total
    annual revenues of all its affiliates, do not exceed \$250 million
    in the aggregate.[^168] Industry data indicate that, of 1,076 cable
    operators nationwide, all but ten are small under this size
    standard.[^169] We note that the Commission neither requests nor
    collects information on whether cable system operators are
    affiliated with entities whose gross annual revenues exceed \$250
    million,[^170] and therefore we are unable to estimate more
    accurately the number of cable system operators that would qualify
    as small under this size standard.

66. *[Paging]{.underline}*. The SBA has developed a small business size
    standard for the broad economic census category of \"Paging.\"[^171]
    Under this category, the SBA deems a wireless business to be small
    if it has 1,500 or fewer employees. Census Bureau data for 2002 show
    that there were 807 firms in this category that operated for the
    entire year.[^172] Of this total, 804 firms had employment of 999 or
    fewer employees, and three firms had employment of 1,000 employees
    or more.[^173] In addition, according to Commission data,[^174] 365
    carriers have reported that they are engaged in the provision of
    "Paging and Messaging Service." Of this total, we estimate that 360
    have 1,500 or fewer employees, and five have more than 1,500
    employees. Thus, in this category the majority of firms can be
    considered small.

67. We also note that, in the Paging Second Report and Order, the
    Commission adopted a size standard for "small businesses" for
    purposes of determining their eligibility for special provisions
    such as bidding credits and installment payments.[^175] In this
    context, a small business is an entity that, together with its
    affiliates and controlling principals, has average gross revenues
    not exceeding \$15 million for the preceding three years.[^176] The
    SBA has approved this definition.[^177] An auction of Metropolitan
    Economic Area (MEA) licenses commenced on February 24, 2000, and
    closed on March 2, 2000. Of the 2,499 licenses auctioned, 985 were
    sold.[^178] Fifty-seven companies claiming small business status won
    440 licenses.[^179] An auction of MEA and Economic Area (EA)
    licenses commenced on October 30, 2001, and closed on December
    5, 2001. Of the 15,514 licenses auctioned, 5,323 were sold.[^180]
    One hundred thirty-two companies claiming small business status
    purchased 3,724 licenses. A third auction, consisting of 8,874
    licenses in each of 175 EAs and 1,328 licenses in all but three of
    the 51 MEAs commenced on May 13, 2003, and closed on May 28, 2003.
    Seventy-seven bidders claiming small or very small business status
    won 2,093 licenses. [^181] We also note that, currently, there are
    approximately 74,000 Common Carrier Paging licenses.

    **D. Description of Projected Reporting, Recordkeeping, and Other
    Compliance Requirements for Small Entities**

68. *Backup Power Supply.* The Order on Reconsideration maintains the
    requirement that LECs and CMRS providers have an emergency backup
    power source for all assets necessary to maintain communications
    that are normally powered from local commercial power, including
    those inside central offices, cell sites, remote switches and
    digital loop carrier system remote terminals. Under this existing
    requirement, LECs and CMRS providers, as defined in Section 20.9 of
    the Commission's rules, must maintain emergency backup power for a
    minimum of 24 hours for assets inside central offices and eight
    hours for assets at other locations such as cell sites, remote
    switches and digital loop carrier system remote terminals that
    normally are powered from local commercial power.

69. In the Order on Reconsideration, the Commission clarifies that the
    assets subject to the rule are those necessary to ensure
    communications that are normally powered from local commercial power
    and that CMRS providers, including paging carriers, as defined in
    Section 20.9 of the Commission's rules, are subject to the rule. The
    Commission further exempts assets from the rule where LECs and CMRS
    providers can demonstrate that they can not comply with the rule due
    to constraints related to federal, state, tribal or local laws, risk
    to safety of life or health, or private legal obligations or
    agreements. LECs and CMRS providers must file a report with the
    Chief of the Public Safety & Homeland Security Bureau that
    identifies: (1) each asset that was designed to comply with the
    applicable backup power requirement; (2) each asset where compliance
    is precluded due to risk to safety of life or health, private legal
    obligation or agreements, or federal, state, tribal, or local law;
    and (3) each asset that was designed with less than the required
    emergency backup power capacity that is not precluded from
    compliance under (2). Our expectation is that this requirement will
    not create an undue additional burden, because the exemptions
    adopted in the Order on Reconsideration will substantially decrease
    the burden imposed on LECs and CMRS providers and several
    communications providers reported in their petitions for
    reconsideration and other filings that they already maintain some
    level of emergency backup power.[^182] Additionally, the Order on
    Reconsideration also maintains the previously adopted exemption for
    LECs that meet the definition of a Class B company as set forth in
    Section 32.11(b)(2) of the Commission's rules, and for
    non-nationwide CMRS providers with no more than 500,000 subscribers.
    Further,, providers identifying assets designed with less than the
    required backup power capacity and not precluded form compliance for
    one of the three reasons listed above, must either comply with the
    backup power requirement or file an emergency backup power
    compliance plan that certifies that the service providers will
    ensure 100 percent coverage in each of the areas covered by any
    non-compliant asset. Filing this plan will presumably be less
    burdensome that implementing a backup power source for these assets
    in compliance with the rule. Many providers have also reported that
    they already have business continuity plans that address the issue
    of backup power. Finally, the Commission clarified that on-site
    power sources satisfy the this rule if such sources were originally
    designed to provide the minimum backup power capacity level required
    by the rule and the provider has implemented reasonable methods and
    procedures to ensure that batteries are regularly checked and
    replaced when they deteriorate. This too should lessen the burden on
    providers.

    **E. Steps Taken to Minimize the Significant Economic Impact on
    Small Entities, and Significant Alternatives Considered**

70. The RFA requires an agency to describe any significant alternatives
    that it has considered in reaching its proposed approach, which may
    include (among others) the following four alternatives: (1) the
    establishment of differing compliance or reporting requirements or
    timetables that take into account the resources available to small
    entities; (2) the clarification, consolidation, or simplification of
    compliance or reporting requirements under the rule for small
    entities; (3) the use of performance, rather than design, standards;
    and (4) an exemption from coverage of the rule, or any part thereof,
    for small entities.[^183]

71. *Backup Power Supply*. The Order on Reconsideration does not disturb
    the previously-adopted exemptions from the requirement for LECs
    (both ILECs and CLECs) that meet the definition of a Class B company
    as set forth in Section 32.11(b)(2) of the Commission's rules and
    non-nationwide CMRS providers with no more than 500,000
    subscribers.[^184] Thus, for example, paging carriers that are
    non-nationwide CMRS providers and have no more than 500,000
    subscribers will be exempt from this rule. The Order on
    Reconsideration also provides relief to LECs and CMRS providers
    subject to the rule for assets where they cannot comply with the
    rule due to legal and other constraints as described above. Finally,
    the Order on Reconsideration provides that, for non-compliant assets
    designed with less than the required emergency backup power capacity
    that are not otherwise exempt, LECs and CMRS providers must comply
    with the backup power requirement or submit an emergency backup
    power compliance plan.

    **[Report to Congress:]{.underline}** The Commission will send a
    copy of the Order, including this Supplemental FRFA, in a report to
    be sent to Congress and the Government Accountability Office
    pursuant to the Congressional Review Act.[^185] In addition, the
    Commission will send a copy of the Order, including this
    Supplemental FRFA, to the Chief Counsel for Advocacy of the SBA. A
    copy of the Order and Supplemental FRFA (or summaries thereof) will
    also be published in the Federal Register.[^186]

[^1]: *See* Petition for Clarification or, Alternatively,
    Reconsideration filed by The American Association of Paging Carriers
    (AAPC) on August 10, 2007 (AAPC Petition); Petition for
    Reconsideration filed by the DAS Forum on August 10, 2007 (DAS Forum
    Petition); Petition for Clarification and Reconsideration filed by
    MetroPCS Communications, Inc. (MetroPCS) on August 10, 2007
    (MetroPCS Petition); Petition for Clarification or Reconsideration
    filed by NextG Networks, Inc. (NextG) on August 10, 2007 (NextG
    Petition); Petition for Reconsideration filed by PCIA -- The
    Wireless Infrastructure Association (PCIA) on August 10, 2007 (PCIA
    Petition); and Petition for Clarification and/or Reconsideration
    filed by The United States Telecom Association on August 10,2007
    (USTelecom Petition). *See also Petitions for Reconsideration and
    Clarification of Action in Rulemaking Proceeding*, Public Notice,
    Report No. 2827 (rel. Aug. 14, 2007). CTIA also filed a Petition for
    Reconsideration but withdrew its Petition on September 28, 2007.
    *See* Petition for Reconsideration filed by CTIA -- The Wireless
    Association® (CTIA) on August 10, 2007 (CTIA Petition).

[^2]: *Recommendations of the Independent Panel Reviewing the Impact of
    Hurricane Katrina on Communications Networks*, Order, 22 FCC Rcd
    10541 (2007) (*Katrina Panel Order*). *See also* 47 C.F.R. § 12.2.

[^3]: 5 U.S.C. App. 2 (1988).

[^4]: *See* the Katrina Panel Charter *available at*
    http://www.fcc.gov/eb/hkip/HKIPCharter.pdf (last visited September
    9, 2007); *see also* the Notice of Establishment of the Commission's
    Independent Panel Reviewing the Impact of Hurricane Katrina on
    Communications Networks, 71 Fed. Reg. 933 (2006).

[^5]: Independent Panel Reviewing the Impact of Hurricane Katrina on
    Communications Networks, *Report and Recommendations to the Federal
    Communications Commission,* June 12, 2006 (Katrina Panel Report).

[^6]: *Recommendations of the Independent Panel Reviewing the Impact of
    Hurricane Katrina on Communications Networks*, Notice of Proposed
    Rulemaking, EB Docket No. 06-119, 21 FCC Rcd 7320 (2006) (*Notice*).

[^7]: *Recommendations of the Independent Panel Reviewing the Impact of
    Hurricane Katrina on Communications Networks*, 21 FCC Rcd 8583
    (2006) (*July 26 Public Notice*).

[^8]: *Id.*

[^9]: *Katrina Panel Order*, 22 FCC Rcd 10541 (2007).

[^10]: 47 C.F.R. § 12.2.

[^11]: *Recommendations of the Independent Panel Reviewing the Impact of
    Hurricane Katrina on Communications Networks*, Order, EB Docket No.
    06-119, WC Docket No. 06-63, 22 FCC Rcd 14246 (*Delay Order*).

[^12]: *See* CTIA's Motion for Administrative Stay filed July 31, 2007;
    NextG's Request for Partial Stay of the Commission's Back Up Power
    Rule filed July 31, 2007 and Errata filed August 1, 2007; and PCIA's
    Comments in Support of Stay Requests filed August 2, 2007. *See
    also* CTIA's Motion for Administrative Stay filed September 24,
    2007.

[^13]: As noted before, one of these petitions was subsequently
    withdrawn.

[^14]: *See, e.g.*, AAPC Petition at 1-5; PCIA Petition at 8, 19-20;
    T-Mobile September 4, 2007 Comments in Support of Petitions for
    Reconsideration (T-Mobile Reply) at 16-18; USTelecom Petition at
    1-13.

[^15]: *See, e.g*., USTelecom Petition at 3.

[^16]: *See, e.g.,* PCIA Petition at 5.

[^17]: *See* 5 U.S.C. § 553(b) (APA requirements relating to notice).

[^18]: *See, e.g.*, PCIA Petition at 3-4, 15-19; T-Mobile Reply at 8;
    USTelecom Petition at 9-13.

[^19]: *Id*.

[^20]: *See, e.g.,* T-Mobile Reply at 5; USTelecom Petition at 9-13.

[^21]: *See, e.g.,* MetroPCS Petition at 6-7; PCIA Petition at 3-4,
    15-19; T-Mobile Reply at 5, 8; US Telecom Petition at 9-13.

[^22]: *See* 5 U.S.C. § 553(b), (c).

[^23]: *Nuvio Corp. v. FCC,* 473 F.3d 302, 310 (D.C. Cir. 2006)
    (internal quotations omitted).

[^24]: *Public Service Commission of the District of Columbia v. FCC*,
    906 F.2d 713, 717 (D.C. Cir. 1990).

[^25]: *See* Katrina Panel Report at i ("lack of power and/or fuel" was
    one of the "three main problems that caused the majority of
    communications network interruptions"); *id.* at 5-6 ("\[T\]he
    duration of power outages far outlasted most generator fuel
    reserves, leading to the failure of otherwise functional
    infrastructure."); *id.* at 9 ("In general, cellular/PCS base
    stations were not destroyed by Katrina, although some antennas
    required adjustment after the storm. Rather, the majority of the
    adverse effects and outages encountered by wireless providers were
    due to a lack of commercial power or a lack of transport
    connectivity to the wireless switch . . . ."); *id.* at 14 ("While
    the communications industry has generally been diligent in deploying
    backup batteries and generators and ensuring that these systems have
    one to two days of fuel or charge, not all locations had them
    installed. . . Where generators were installed and operational, the
    fuel was generally exhausted prior to restoration of power."); *id.*
    at 17 ("Backup generators and batteries were not present at all
    facilities. Where they were deployed, most provided only enough
    power to operate particular communications facilities for 24-48
    hours -- generally a sufficient period of time to permit the
    restoration of commercial power in most situations, but not enough
    for a catastrophe like Hurricane Katrina.").

[^26]: *Id.* at 39.

[^27]: *Notice,* 21 FCC Rcd at 7323.

[^28]: *Id*. at 7326. *See also* Katrina Panel Report at 39
    (recommending that, in order to ensure a more robust E911 service,
    the FCC should encourage the implementation of the following NRIC
    best practice:

    > Service providers, network operators and property managers should
    > ensure availability of emergency/backup power (*e.g.,* batteries,
    > generators, fuel cells) to maintain critical communications
    > services during times of commercial power failures, including
    > natural and manmade occurrences (*e.g.,* earthquakes, floods,
    > fires, power brown/blackouts, terrorism). The emergency/backup
    > power generators should be located onsite, when appropriate*. See
    > NRIC VII Recommendation 7-7-5204*.)

[^29]: *Id.*

[^30]: *Id*. at 7320, 7322.

[^31]: *Id* at 7322.

[^32]: *Id.*

[^33]: Katrina Panel Report at i, 13, 17-18 (problems with maintaining
    and restoring power for communications infrastructure significantly
    affected the recover process).

[^34]: *Id*. at 14.

[^35]: *Id.* at 9.

[^36]: *Id*. at 7, 9.

[^37]: *Id.* at 12.

[^38]: *Id.* at 14, 17-18.

[^39]: *Notice,* 21 FCC Rcd at 7326 ¶ 16 (emphasis added).

[^40]: *Notice*, 21 FCC Rcd at 7322 ¶ 7 (emphasis added).

[^41]: *July 26 Public Notice*, 21 FCC Rcd at 8583; *see also* Separate
    Statement of Commissioner Copps ("I am especially pleased that we
    seek comment on whether voluntary implementation is enough or
    whether we need to consider other measures.").

[^42]: *See* *New York v. EPA*, 413 F.3d 3, 44 (D.C. Cir. 2005) (EPA's
    adoption of certain mandatory environmental requirements following
    earlier proposal of a "menu of alternatives" approach by which state
    governments would be allowed to choose any or all of these
    requirements, was a "readily foreseeable outcome\[\] that could
    result from the proposal" and thus was the logical outgrowth of that
    proposal). 

[^43]: *See Northeast Maryland Waste Disposal Authority v. EPA*, 358
    F.3d 936, 951 (D.C. Cir. 2004) (discussing APA notice requirements
    and the "logical outgrowth" test).

[^44]: *See* NENA's August 7, 2006 comments in response to the *Notice*
    at 6. *Cf.* *Rybachek v. EPA*, 904 F.2d 1276, 1288 (9^th^ Cir. 1990)
    (finding that final rule was "logical outgrowth" of earlier proposal
    where agency issued NPRM mentioning only the possibility of
    case-by-case imposition of environmental requirements but issued
    final rule mandating these requirements after public comments
    recommended mandates). 

[^45]: Comments of St. Tammany Parish Communications District 1, at 1-2.

[^46]: CTIA--The Wireless Association Comments ("CTIA Comments") at 8.

[^47]: Comments of the United States Telecom Association at 5-6.

[^48]: PCIA Petition at 15-16.

[^49]: 47 U.S.C. § 151.

[^50]: PCIA Petition at 15-16 (citing *Am. Library Ass'n v. FCC,* 406
    F.3d 689 and *Motion Picture Assn of America, Inc. v. FCC,* 309 F.3d
    796).

[^51]: PCIA Petition at 15 (citing *Am. Library Ass'n,* 406 F.3d at 702
    and *United States v. Southwestern Cable Co.*, 392 US 157, 178
    (1968)). PCIA further states that it "agrees with CTIA that the
    Commission's reliance on only Section 1 is an insufficient statutory
    basis to sustain the new regulation," citing the CTIA July 31, 2007
    Motion for Stay at 8-11. CTIA also states that Section 1, standing
    alone, is not the type of clear expression of Congressional intent
    that is necessary to impose such a heavy obligation on the wireless
    industry and, indeed, this would be particularly anomalous in the
    context of CMRS, which since its inception has been largely
    deregulated at the federal level (citing *Nat'l Ass'n of State Util.
    Consumer Advocates v. FCC*, 457 F.3d 1238, 1245 (11th Cir. 2006)
    (describing the "the pro-competitive, deregulatory framework for
    \[wireless service providers\] prescribed by Congress.") (quotation
    omitted)). *See* CTIA's July 31, 2007 Motion for Stay at 10-11.
    Finally, CTIA asserts that, even in cases in which the Commission
    has relied on Section 1 in addition to other provisions of Title I
    of the Act, such as Section 4(i), 47 U.S.C. § 154(i), to adopt
    regulations pursuant to its ancillary authority, the courts have
    routinely rejected such efforts. *See* CTIA's July 31, 2007 Motion
    for Stay at 9-11.

[^52]: *United States v. Southwestern Cable Co*., 392 U.S. 157, 177-78
    (1968) (*Southwestern Cable*) (upholding the FCC regulatory
    authority over cable television).

[^53]: *Id.* This test was subsequently applied by the Supreme Court in
    *United States v. Midwest Video Corp.,* 406 U.S. 649 (1972)
    *(Midwest Video I)* and *United States v. Midwest Video Corp.,* 440
    U.S. 689 (1979) *(Midwest Video II).*

[^54]: *Southwestern Cable,* 392 U.S. at 167. *See also* *Am. Library
    Ass'n,* 406 F.3d at 693.

[^55]: 47 U.S.C. § 151.

[^56]: *Southwestern Cable,* 392 U.S. at 178.

[^57]: *Rural Telephone Coalition v. FCC,* 838 F.2d 1307, 1315 (D.C.
    Cir. 1988) (quoting 47 U.S.C. § 154(i)).

[^58]: 47 U.S.C. § 303(r). *See also* 47 U.S.C. § 332.

[^59]: *Am. Library Ass'n,* 406 F.3d at 703-704.

[^60]: *See, e.g*. PCIA Petition at 6; September 4, 2007 Comments of
    Sprint Nextel (Sprint Nextel Reply) at 4; USTelecom Petition at 3,
    10-12.

[^61]: *See, e.g*. NextG Petition at 2-13; T-Mobile Reply at 8;
    USTelecom Petition at 2-3, 7-13.

[^62]: *See, e.g.*, MetroPCS Petition at ii, 4, 6-7; PCIA Petition at
    15-18; USTelecom Petition at 9-13.

[^63]: *See, e.g.*, DAS Forum Petition at 5-7; Sprint Nextel Reply at
    2-3; USTelecom at 12 (noting that NENA's comments addressed only
    wireline providers central offices and did not discuss any specific
    time frame for backup power and that St. Tammany Parsh's comments
    discussed only backup procedures and made no mention of backup
    power.).

[^64]: Katrina Panel Report at 17.

[^65]: *Id*. at 7. NENA further states that its representative on the
    Katrina Panel urged that wireless sites should include generators
    with a minimum of five days fuel supply and backup battery systems
    rated for a minimum of eight hours. *See* NENA's September 11, 2007
    Comments at 1-3.

[^66]: *Id*. at 17.

[^67]: 47 C.F.R. § 12.2.

[^68]: In the US Telecom Petition and a Verizon Wireless *Ex Parte*,
    both providers reported that the majority of their remote sites have
    backup power. *See* USTelecom Petition at 2,8 (noting that the vast
    majority of all network remote terminals have onsite backup battery
    power typically designed to an eight hour engineering standard,
    although the actual life of the battery at any point in time depends
    on numerous factors and some remote terminals are too small to
    support a battery); Verizon Wireless *Ex Parte* filed September 4,
    2007 (stating that Verizon Wireless' internal design standard is for
    eight hours or more of backup power (generators, batteries or both)
    at every cell site where possible, that the majority of its cell
    sites have on-site generators or batteries capable of providing
    backup power for much longer than eight hours, that only a small
    percentage of sites have only batteries that will not last for eight
    hours, and that only a handful of sites have no on-site backup power
    at all).

[^69]: *Katrina Panel Order,* 22 FCC Rcd at 10565 ¶ 76; NENA Comments at
    6.

[^70]: NENA's September 11, 2007 Comments at 1-3.

[^71]: *Id.* at 14, 17-18.

[^72]: *See, e.g*., *Implementation of Section 6002(B) of the Omnibus
    Budget Reconciliation Act of 1993, Eleventh Annual Report and
    Analysis of Competitive Market Conditions With Respect to Commercial
    Mobile Services*, 21 FCC Rcd 10947, 11010, ¶ 158 (2006) ("In the
    last three years alone, the total mobile telephone subscriber base
    has increased 50 percent.").

[^73]: *See, supra* ¶¶ 11, 13.

[^74]: *See, e.g*., DAS Forum Petition at 6-7, 10; MetroPCS Petition at
    ii, 8-12; PCIA Petition at 9; T-Mobile Reply at 9.

[^75]: Petitioners state that, in order to comply with the rule,
    carriers would be required to maintain a large number of battery and
    fuel-powered generators at cell sites. Because these power systems
    contain lead, sulfuric acid, oils and flammable liquids, they are
    subject to a host of federal, state, and local environmental and
    safety laws that strictly limit their placement and use. They note
    that, at a multi-carrier site, compliance with the rule could
    require the addition of several thousand pounds of additional
    weight, which would implicate local building code limitations.
    Petitioners note that placement and operation of diesel generators
    raises environmental issues and implicate federal and state
    environmental laws are implicated by the rule. They state that state
    and local government laws and ordinances require permits before
    installing new diesel generators and issuance of such permits can be
    delayed while authorities negotiate to address concerns re: noise
    pollution, ventilation, fuel leakage, etc. Petitioners argue that
    site leases that contractually limit the placement of such equipment
    will have to be renegotiated prior to installation. *See, e.g.,*
    *id.*

[^76]: *See, e.g*., DAS Forum at 9; MetroPCS Petition at 8-9; T-Mobile
    Reply at 10. Because several petitioners refer to the CTIA Petition,
    we note that CTIA also noted that a rooftop location could expose
    the equipment to lightning or other weather conditions that could
    compromise the equipment, making it more susceptible to fuel leakage
    and fire; that the location of such equipment in a church steeple
    may not provide adequate ventilation; and that pollutants emitted by
    diesel generators have been identified as leading contributors to a
    variety of environmental and health problems. *See* CTIA Petition at
    18-19.

[^77]: *See, e.g*., PCIA Petition at 5, 10; T-Mobile Reply at 7, 9,
    11-12; USTelecom at 8; Verizon Wireless *Ex Parte* at 2-3.

[^78]: *Id*.

[^79]: *See, e.g*., MetroPCS Petition at 5, 13; NextG Petition at 2-3,
    10-15; PCIA Petition at 5; Sprint Nextel Reply at 3-4.

[^80]: *See, e.g.,* MetroPCS Petition at 13; NENA September 11, 2007,
    Comments at 3; NextG Petition at 17; Sprint Nextel Reply at 2;
    USTelecom Petition at 3.

[^81]: AT&T *Ex Parte* Notice filed September 27, 2007; *see also*
    Verizon Wireless *Ex Parte* filed September 4, 2007 (noting that
    batteries begin to deteriorate the minute they are installed and,
    although Verizon Wireless has methods and procedures in place that
    insure that batteries are regularly checked and replaced when they
    deteriorate, it cannot guarantee that every battery designed to
    provide 8 hours of backup power will actually do so).

[^82]: LECs that meet the definition of a Class B company as set forth
    in Section 32.11(b)(2) of the Commission's rules and non-nationwide
    CMRS providers with no more than 500,000 subscribers are exempt from
    the rule and the reporting requirements in paragraphs 26-27.

[^83]: *See, supra* nError: Reference source not found. Some petitioners
    also note that the rule will result in an increased demand for
    batteries and generators that might cause a production strain and
    limit the timely availability of these resources. However, they have
    provided no proof in support of these assertions and for the reasons
    stated in this paragraph, we believe providers will have adequate
    time to comply with the rule. Moreover, rule modifications we adopt
    today will decrease the amount of backup power sources that will
    need to be installed.

[^84]: *See, e.g*., DAS Forum Petition at 9, 4-5; MetroPCS Petition at
    ii, 9-13; T-Mobile Reply at 11; USTelecom Petition at 2; Verizon
    Wireless *Ex Parte* filed September 4, 2007 at 2-3.

[^85]: *Id*.

[^86]: *Id.* PCIA asserts that the backup power rule is at odds with
    federal efforts to limit the physical presence of cell sites and the
    policy of promoting collocation. PCIA Petition at 8-10; *see also*
    T-Mobile Reply at 10-11. While we recognize the desire to collocate
    and the flexibility afforded by collocation, the goal of ensuring
    reliable and resilient communications outweighs any benefits
    afforded by collocation. Further, the backup power rule,
    particularly as amended in this Order on Reconsideration, does not
    necessarily prevent collocation.

[^87]: USTelecom Petition at 2, 8.

[^88]: T-Mobile Reply at 11; see also PCIA Petition at 9 (stating that
    fire codes require safety zones around propane and diesel tanks).

[^89]: *Id*.

[^90]: *See*, *supra* ¶ 13. *See also* T-Mobile Reply at 7 (T-Mobile
    already provides varying degrees of backup power at 95 percent of
    its cell sites, most have less than 8 hours of power but some have
    more than 8 hours).

[^91]: Although its petition has been withdrawn several commenters
    reference the CTIA Petition, and we note that CTIA asserted that the
    reasons the Commission gave for encouraging but not requiring other
    Katrina Panel recommendations apply with equal force to the backup
    power issue. For instance, like the implementation of diverse 911
    circuits, CTIA contends that mandatory minimum backup power is
    "cost-prohibitive in certain cases." CTIA Petition at 24, n.33; *see
    also* *Katrina Panel Order,* 22 FCC Rcd at 10564-65 ¶ 75. However,
    the costs of implementing diverse 911 circuits are often shouldered
    by PSAPs which depend on limited sources of public funding and do
    not have the financial resources of commercial companies.

[^92]: *See, e.g.*, MetroPCS Petition at 13; PCIA Petition at 8, 19-20;
    USTelecom Petition at 1-3, 7-9.

[^93]: *See, e.g.,* MetroPCS Petition at ii, 6-7, 13; PCIA Petition at
    8, 19-20; Sprint Nextel Reply at 2-3; USTelecom Petition at 2, 7.

[^94]: *Id*.

[^95]: *See, e.g.* MetroPCS Petition at ii, 4, 8-13; PCIA Petition at 6,
    12; NextG Petition at 1-3, 13-19.

[^96]: *Id.*

[^97]: NENA takes issue with the claim that forced shutdown of
    non-compliant sites will threaten public safety. NENA asserts this
    argument suggests that cellular providers should be immune from any
    disruptive regulatory discipline because so many 9-1-1 callers use
    wireless phones. NENA notes that wireless carriers made an analogous
    argument in 1993, during the early consideration of 9-1-1 caller
    location rules, suggesting that cellular telephony, of itself, was
    such a boon to 9-1-1 access that precise caller location should not
    be required. NENA Comments filed September 11, 2007 at 3.

[^98]: AAPC argues that the rule should not apply to entities defined by
    Section 20.9(1) and (6) of the rules, or to Narrowband PCS licenses
    as defined by Section 24.5 of the rules. AAPC Petition at 4. As
    noted herein, we find that the rule should apply to CMRS providers,
    as defined in Section 20.9 of the Commission's rules.

[^99]: *See, e.g.,* Testimony of Bruce Deer, American Association of
    Paging Carriers before the Independent Panel Reviewing the Impact of
    Hurricane Katrina on Communications Networks, Meeting Transcript at
    123 (March 5, 2006)("And we realize that today, still, with all of
    the advent of all of the communications methods of electronic forms
    that hospitals still use predominantly pagers for emergency
    communications to reach their doctors and their emerging medical
    staffs."); Testimony of Vincent Kelly, President and Chief Executive
    Officer, USA Mobility before the Independent Panel Reviewing the
    Impact of Hurricane Katrina on Communications Networks, Meeting
    Transcript at 132 ("\[P\]aging devices continue to play a critical
    role for first responders and are still used extensively by policy
    \[sic\] officers, fire fighters, rescue workers. In addition,
    hospitals and health care clinics a well as government agencies rely
    heavily on paging services.")

[^100]: AAPC Petition at 2. In support of this assertion, AAPC cites the
    *Katrina Panel Order* at ¶ 78 & n. 103, Appendix C (Final Regulatory
    Flexibility Analysis) at ¶ 27 & nn. 59-60, citing *Revision of the
    Commission's Rules to Ensure Compatibility with Enhanced 911
    Emergency Calling Systems (Order to Stay),* CC Docket No. 97-102, 17
    FCC Rcd 14841, 14848 & ¶ 22 (2002) (the "*E-911 Proceeding*")."

[^101]: AAPC Petition *at* 3-4.

[^102]: *Notice,* 21 FCC Rcd 7320, 7326 ¶ 16; Katrina Panel Report at
    39.

[^103]: *Notice*, 21 FCC Rcd at 7320-7323.

[^104]: AAPC Petition at 4.

[^105]: The rule states, in part, that LECs and CMRS providers must have
    an emergency backup power source for all assets that are normally
    powered from local commercial power, including those inside central
    offices, cell sites, remote switches and digital loop carrier system
    remote terminals. 47 C.F.R. § 12.2.

[^106]: AAPC notes that, unlike cellular and broadband PCS networks,
    paging networks make substantial use of simulcasting and "fill-in"
    transmitters to assure adequate signal penetration in buildings and
    to cover terrain-shielded areas. AAPC states that, in emergency
    conditions, not all base stations are usually required to maintain
    an acceptable level of service. According to AAPC, the design of
    paging networks involve engineering and cost trade-offs that do not
    fit neatly into a matrix that the Commission can or should
    promulgate into law. AAPC acknowledges that paging carriers
    typically do have backup power sources for their critical base
    station sites, but they may not have backup power at all sites. AAPC
    Petition at 4-5.

[^107]: AAPC Petition at 3, *citing* *Implementation of a Grant Program
    for Remote Community Alert Systems Pursuant to Section 605(a) of the
    Warning, Alert, and Response Network (WARN) Act,* Declaratory
    Ruling*, PS Docket No. 07-8,* 21 FCC Rcd 7214 (2007).

[^108]: The reasons this definition was adopted for Section 605(a)
    included: (1) because including current MSS offerings in the
    definition of "commercial mobile service" could render meaningless
    the grant program of Section 605(a), we cannot equate "commercial
    mobile service" with the Commission\'s definition of CMRS; (2)
    defining "commercial mobile service" to include only carriers that
    are obligated to provide E911 service focuses limited resources on
    communities that need them most: namely, those communities that have
    no access to wireless E911 service. *See Id*.

[^109]: *See, e.g.,* NextG Petition at 8-10, DAS Forum Petition at 3-4,
    MetroPCS Petition at 12-13, and Independent Telephone and
    Telecommunications Alliance August 30, 2007 Comments (ITTA Reply) at
    1-4.

[^110]: *See, e.g.*, NextG Petition at 1-3. *See also id*.

[^111]: *See, e.g.*, MetroPCS Petition at ii; 12-13.

[^112]: NextG Petition at 1, 8.

[^113]: NextG Petition at 2-3, 10-13; MetroPCS also argues that
    compliance would be burdensome, impractical and, in many instances
    impossible -- particularly at remote sites, where MetroPCS claims
    that it will be forced to discontinue services in some instances.
    MetroPCS Petition at 4, 8-13.

[^114]: DAS Forum Petition at 3-5.

[^115]: We also again clarify that the list in the rule is not
    exhaustive and the inclusion of the term "cell sites" does not limit
    the rule's applicability.

[^116]: *See, e.g*., DAS Forum Petition at 3; NextG Petition at 2-4,
    10-17.

[^117]: 47 C.F.R. § 32.11(b)(2).

[^118]: CTIA withdrew this Petition on September 28, 2007.

[^119]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601-12, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^120]: *See* Recommendations of the Independent Panel Reviewing the
    Impact of Hurricane Katrina on Communications Networks, *Notice of
    Proposed Rulemaking*, 21 FCC Rcd 7320, 7330, Appendix A (2006).

[^121]: *Recommendations of the Independent Panel Reviewing the Impact
    of Hurricane Katrina on Communications Networks*, Order, 22 FCC Rcd
    10541 (2007) (*Katrina Panel Order*).

[^122]: *See* 5 U.S.C. § 604.

[^123]: Section 32.11 provides that Class B companies are those
    companies that have annual revenues from regulated
    telecommunications operations that are less than the indexed revenue
    threshold. 47 C.F.R. § 32.11(b)(2). The Wireline Competition Bureau
    recently announced that the 2006 revenue threshold for Class A to
    Class B companies is \$134 million. *Public Notice*, "Annual
    Adjustment of Revenue Thresholds," DA 07-1706 (WCB, April 12, 2007).
    Although Section 32.11, by its terms, applies only to ILECs, we are
    applying the same revenue categories to CLECs for the purpose of the
    exception to this requirement.

[^124]: MetroPCS Petition for Clarification and Reconsideration at 7-8,
    citing FRFA ¶ 24 and n60.

[^125]: *See* FRFA, ¶ 24.

[^126]: MetroPCS Petition for Clarification and Reconsideration at 7-8.
    The American Association of Paging Carriers (AAPC) cites parts of
    the FRFA that are identical to sections in the *Katrina Panel Order*
    in support of its arguments that Section 12.2 of the Commission's
    rules should not apply to paging carriers. AAPC Petition for
    Clarification or, Alternatively, Reconsideration at 2, n1. Those
    arguments are fully addressed in the Order on Reconsideration.

[^127]: 5 U.S.C. § 604(a)(3).

[^128]: 5 U.S.C. § 601(6).

[^129]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small-business concern" in the Small Business Act, 15 U.S.C. §
    632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a
    small business applies "unless an agency, after consultation with
    the Office of Advocacy of the Small Business Administration and
    after opportunity for public comment, establishes one or more
    definitions of such term which are appropriate to the activities of
    the agency and publishes such definition(s) in the Federal
    Register." 5 U.S.C. § 601(3).

[^130]: 15 U.S.C. § 632.

[^131]: *See* SBA, Programs and Services, SBA Pamphlet No. CO-0028, at
    page 40 (July 2002).

[^132]: 5 U.S.C. § 601(4).

[^133]: Independent Sector, The New Nonprofit Almanac & Desk Reference
    (2002).

[^134]: 5 U.S.C. § 601(5).

[^135]: U.S. Census Bureau, Statistical Abstract of the United States:
    2006, Section 8, page 272, Table 415.

[^136]: We assume that the villages, school districts, and special
    districts are small, and total 48,558. *See* U.S. Census Bureau,
    Statistical Abstract of the United States: 2006, section 8, page
    273, Table 417. For 2002, Census Bureau data indicate that the total
    number of county, municipal, and township governments nationwide was
    38,967, of which 35,819 were small. *Id.*

[^137]: 13 C.F.R. § 121.201, North American Industry Classification
    System (NAICS) code 517212.

[^138]: *Id*.

[^139]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization," Table 5, NAICS code 517212 (issued Nov. 2005).

[^140]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is for firms with "1000
    employees or more."

[^141]: *See* Amendment of Parts 20 and 24 of the Commission's Rules --
    Broadband PCS Competitive Bidding and the Commercial Mobile Radio
    Service Spectrum Cap, *Report and Order*, 11 FCC Rcd 7824, 7850-7852
    ¶¶ 57-60 (1996); *see also* 47 C.F.R. § 24.720(b).

[^142]: *See* Amendment of Parts 20 and 24 of the Commission's Rules --
    Broadband PCS Competitive Bidding and the Commercial Mobile Radio
    Service Spectrum Cap, *Report and Order*, 11 FCC Rcd 7824, 7852
    ¶ 60.

[^143]: *See* Letter to Amy Zoslov, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, Federal
    Communications Commission, from Aida Alvarez, Administrator, Small
    Business Administration, dated December 2, 1998.

[^144]: FCC News, "Broadband PCS, D, E and F Block Auction Closes," No.
    71744 (rel. January 14, 1997).

[^145]: *See* "C, D, E, and F Block Broadband PCS Auction Closes,"
    *Public Notice*, 14 FCC Rcd 6688 (WTB 1999).

[^146]: *See* "C and F Block Broadband PCS Auction Closes; Winning
    Bidders Announced," *Public Notice,* 16 FCC Rcd 2339 (2001).

[^147]: 47 C.F.R. § 90.814(b)(1).

[^148]: *Id*.

[^149]: *See* Letter to Thomas Sugrue, Chief, Wireless
    Telecommunications Bureau, Federal Communications Commission, from
    Aida Alvarez, Administrator, Small Business Administration, dated
    August 10, 1999. The Commission notes that, although a request was
    also sent to the SBA requesting approval for the small business size
    standard for 800 MHz, approval is still pending.

[^150]: *See* "Correction to Public Notice DA 96-586 'FCC Announces
    Winning Bidders in the Auction of 1020 Licenses to Provide 900 MHz
    SMR in Major Trading Areas,'" *Public Notice*, 18 FCC Rcd 18367 (WTB
    1996).

[^151]: *See* "Multi-Radio Service Auction Closes," *Public Notice*, 17
    FCC Rcd 1446 (WTB 2002).

[^152]: Service Rules for Advanced Wireless Services in the 1.7 GHz and
    2.1 GHz Bands, WT Docket No. 02-353, *Report and Order*, 18 FCC Rcd
    25162 (2003) (*AWS-1 Report and Order*).

[^153]: 15 U.S.C. § 632.

[^154]: Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to
    William E. Kennard, Chairman, FCC (May 27, 1999). The Small Business
    Act contains a definition of "small-business concern," which the RFA
    incorporates into its own definition of "small business." *See* 15
    U.S.C. § 632(a) (Small Business Act); 5 U.S.C. § 601(3) (RFA). SBA
    regulations interpret "small business concern" to include the
    concept of dominance on a national basis. *See* 13 C.F.R. §
    121.102(b).

[^155]: 13 C.F.R. § 121.201, NAICS code 517110.

[^156]: FCC, Wireline Competition Bureau, Industry Analysis and
    Technology Division, "Trends in Telephone Service" at Table 5.3,
    page 5-5 (Feb. 2007). This source uses data that are current as of
    October 20, 2005.

[^157]: 13 C.F.R. § 121.201, NAICS code 517110.

[^158]: *Trends in Telephone Service,* Table 5.3.

[^159]: U.S. Census Bureau, 2002 NAICS Definitions, "517510 Cable and
    Other Program Distribution";
    http://www.census.gov/epcd/naics02/def/NDEF517.HTM.

[^160]: 13 C.F.R. § 121.201, NAICS code 517510.

[^161]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, Table 4, Receipts Size of Firms for the United States:
    2002, NAICS code 517510 (issued November 2005).

[^162]: *Id*. An additional 61 firms had annual receipts of \$25 million
    or more.

[^163]: 47 C.F.R. § 76.901(e). The Commission determined that this size
    standard equates approximately to a size standard of \$100 million
    or less in annual revenues. *Implementation of Sections of the 1992
    Cable Act: Rate Regulation,* Sixth Report and Order and Eleventh
    Order on Reconsideration, 10 FCC Rcd 7393, 7408 (1995).

[^164]: These data are derived from: R.R. Bowker, *Broadcasting & Cable
    Yearbook 2006*, "Top 25 Cable/Satellite Operators," pages A-8 & C-2
    (data current as of June 30, 2005); Warren Communications News,
    *Television & Cable Factbook 2006*, "Ownership of Cable Systems in
    the United States," pages D-1805 to D-1857.

[^165]: 47 C.F.R. § 76.901(c).

[^166]: Warren Communications News, *Television & Cable Factbook 2006*,
    "U.S. Cable Systems by Subscriber Size," page F-2 (data current as
    of Oct. 2005). The data do not include 718 systems for which
    classifying data were not available.

[^167]: 47 U.S.C. § 543(m)(2); *see* 47 C.F.R. § 76.901(f) & nn. 1-3.

[^168]: 47 C.F.R. § 76.901(f); *see* Public Notice*, FCC Announces New
    Subscriber Count for the Definition of Small Cable Operator*, DA
    01‑158 (Cable Services Bureau, Jan. 24, 2001).

[^169]: These data are derived from: R.R. Bowker, *Broadcasting & Cable
    Yearbook 2006*, "Top 25 Cable/Satellite Operators," pages A-8 & C-2
    (data current as of June 30, 2005); Warren Communications News,
    *Television & Cable Factbook 2006*, "Ownership of Cable Systems in
    the United States," pages D-1805 to D-1857.

[^170]: The Commission does receive such information on a case-by-case
    basis if a cable operator appeals a local franchise authority's
    finding that the operator does not qualify as a small cable operator
    pursuant to § 76.901(f) of the Commission's rules. *See* 47 C.F.R. §
    76.909(b).

[^171]: 13 C.F.R. § 121.201, NAICS code 517211.

[^172]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization," Table 5, NAICS code 517211 (issued Nov. 2005).

[^173]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is for firms with "1000
    employees or more."

[^174]: *Trends in Telephone Service*, Table 5.3.

[^175]: Revision of Part 22 and Part 90 of the Commission's Rules to
    Facilitate Future Development of Paging Systems, *Second Report and
    Order*, 12 FCC Rcd 2732, 2811-2812, paras. 178-181 (Paging Second
    Report and Order); *see also* Revision of Part 22 and Part 90 of the
    Commission's Rules to Facilitate Future Development of Paging
    Systems, *Memorandum Opinion and Order on Reconsideration*, 14 FCC
    Rcd 10030, 10085-10088, paras. 98-107 (1999).

[^176]: Paging Second Report and Order, 12 FCC Rcd at 2811, para. 179.

[^177]: *See* Letter to Amy Zoslov, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, from Aida
    Alvarez, Administrator, Small Business Administration, dated
    December 2, 1998.

[^178]: *See* "929 and 931 MHz Paging Auction Closes," Public Notice, 15
    FCC Rcd 4858 (WTB 2000).

[^179]: *Id..*

[^180]: *See* "Lower and Upper Paging Band Auction Closes," Public
    Notice, 16 FCC Rcd 21821 (WTB 2002).

[^181]: *See* "Lower and Upper Paging Bands Auction Closes," Public
    Notice, 18 FCC Rcd 11154 (WTB 2003).

[^182]: *See* USTelecom Petition at 2,8 (noting that the vast majority
    of all network remote terminals have onsite backup battery power
    typically designed to an eight hour engineering standard, although
    the actual life of the battery at any point in time depends on
    numerous factors and some remote terminals are too small to support
    a battery); Verizon Wireless *Ex Parte* filed September 4, 2007
    (stating that Verizon Wireless' internal design standard is for
    eight hours or more of backup power (generators, batteries or both)
    at every cell site where possible, that the majority of its cell
    sites have on-site generators or batteries capable of providing
    backup power for much longer than eight hours, that only a small
    percentage of sites have only batteries that will not last for eight
    hours, and that only a handful of sites have no on-site backup power
    at all). *See also* CTIA comments at 8 (observing that wireless
    carriers "must ensure network reliability and reliance" and that, to
    do so, they "provision their cell sites and switches with batteries
    to power them when electrical grids fail" and "maintain permanent
    generators at all of the switches and critical cell sites, as well
    as an inventory of backup power generators to recharge the batteries
    during extended commercial power failures).

[^183]: 5 U.S.C. § 603(c).

[^184]: Although this subscriber level is based on the Tier III CMRS
    definition, which is defined as non-nationwide CMRS providers with
    no more than 500,000 subscribers as of the end of 2001, we note that
    we are not exempting from this requirement those non-nationwide CMRS
    providers that have grown to exceed the 500,000 subscriber threshold
    since 2001 as we believe that such providers are at a size where
    they should be able to comply with the emergency backup power rule.

[^185]: *See* 5 U.S.C. § 801(a)(1)(A).

[^186]: *See* 5 U.S.C. § 604(b).