**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | Fee Control Nos.             |
|                                  | * |                              |
| Teletouch Licenses, Inc.         | ) | 000000BCB-97-054             |
|                                  | * |                              |
| Fee Payment for Notification of  | * | 9611088130542002             |
| Permissive                       |   |                              |
|                                  | * |                              |
| Modification to Relocate the     | * |                              |
| 152.57 MHz Base                  | ) |                              |
|                                  | * |                              |
| Station of Paging and            | * |                              |
| Radiotelephone Service           |   |                              |
|                                  | * |                              |
| Station KNKD849 at Denton, Texas | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
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|                                  | ) |                              |
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+----------------------------------+---+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted:** July 24, 2001 **Released:** July 27, 2001

By the Commission:

1.  This memorandum opinion and order denies an application for review
    filed by Teletouch Licenses, Inc. (TLI) of a letter ruling by the
    Acting Associate Managing Director for Operations (Managing
    Director).[^1] That decision denied TLI's petition for
    reconsideration of a determination by the Billings and Collections
    Branch (Branch) that the \$45.00 fee payment associated with TLI's
    FCC Form 489 notification to the Commission of the relocation of
    base station KNKD849 was deficient by \$235.00. We find that TLI's
    FCC Form 489 notification was subject to a \$280.00 filing fee and
    that the payment was deficient by \$235.00. We direct TLI to remit
    the balance of the fee payment owed in the amount of \$235.00 within
    30 days of this order.

[Background]{.underline}

2.  On November 7, 1996, TLI filed FCC Form 489 notifying the Commission
    that TLI had relocated the 152.57 MHz base station KNKD849 (a Paging
    and Radiotelephone Service station) to Denton, Texas (Form 489
    notification). On December 17, 1996, the Branch determined that the
    \$45.00 fee payment associated with TLI's Form 489 notification was
    deficient by \$235.00 and the Branch assessed TLI the balance owed.
    In its petition for reconsideration of the Branch's action, TLI
    asserted that the relocation of its base station constituted a minor
    modification subject to a \$45.00 filing fee under section 8 of the
    Communications Act of 1934, as amended (the Act), 47 U.S.C. §158. In
    denying TLI's petition, the Managing Director determined that TLI's
    relocation of base station KNKD849 constituted a major modification
    subject to a \$280.00 filing fee under section 8 of the Act and
    section 1.1102(50)(b) of the Commission's rules, 47 C.F.R.
    §1.1102(50)(b).[^2] TLI filed an application for review of that
    decision.

[Discussion]{.underline}

3.  We find that TLI's Form 489 notification is subject to a \$280.00
    fee as a "Fill-in Transmitter" filing under section 8(g) of the Act,
    47 U.S.C. §158(g), and section 1.1102(50)(c) of the rules, 47 C.F.R.
    §1.1102(50)(c).[^3] Section 8 specifies separate fees for
    applications and other filings in, *inter alia*, the Domestic Public
    Land Mobile Stations services, including separate fees for fill-in
    transmitters, major modifications, and minor modifications.[^4] The
    filing fees for fill-in transmitters, major modifications, and minor
    modifications for 1996 (the period at issue here) were \$280.00,
    \$280.00, and \$45.00, respectively, under Section 1.1102 of the
    Commission's rules.[^5]

4.  The applications and other filings subject to filing fees under
    section 8 are not defined in section 8 of the Act or in the
    Commission's rules implementing section 8 (*see* 47 C.F.R. Part 1,
    Subpart G). In 1990, however, the Common Carrier Bureau issued a
    Public Notice clarifying the term "fill-in transmitters" in the
    Domestic Public Land Mobile Service for purposes of section 8 of the
    Act and our implementing rules. In relevant part, the *Fill-in
    Transmitter Public Notice* stated that:

> applicants proposing . . . to relocate an existing transmitter . . .
> such that the new contour is totally within the presently authorized
> service contour \[as is the case here involving TLI's relocation of
> base station KNKD849\], must pay \[the fee established by the
> Commission for fill-in transmitters\] (effective May 21, 1990).[^6]

On April 24, 1996, the Wireless Telecommunications Bureau issued a
*Memorandum Opinion and Order* reiterating that applicants proposing to
relocate a base station (where the new contour is within the old
contour) are required to pay the filing fee established for fill-in
transmitters in the Commission's rules.[^7] TLI filed Form 489 on
November 7, 1996 to notify the Commission that TLI had relocated base
station KNKD849 and that the relocated transmission is wholly within the
authorized service contour. We therefore find that, consistent with the
*Fill-in Transmitter Public Notice* and the *New Hampshire MO&O,* TLI
was required to pay the \$280.00 filing fee established for fill-in
transmitters pursuant to section 8 of the Act and section 1.1102(50)(c)
of the rules.

5.  We disagree with TLI's assertion that the classification of fill-in
    transmitters as set forth in the *Fill-in Transmitter Public Notice*
    required public notice and comment under section 553 of the
    Administrative Procedure Act (APA), 5 U.S.C. §553, and that the
    definition is inconsistent with section 8 of the Act. Section
    553(b)(3)(A) of the APA permits agencies to dispense with the usual
    notice and comment procedures in rulemakings if the rules are
    "interpretative rules."[^8] Interpretative rules are agency
    statements of general effect in which the agency announces an
    interpretation of a statute or of another rule.[^9] Interpretative
    rules thus serve an advisory function by explaining the meaning
    given to a particular word or phrase in a statute or rule that an
    agency administers.[^10] The definition of the term fill-in
    transmitter in the *Fill-in Transmitter Public Notice* clarified the
    meaning of the term under section 8 of the Act, and did not create
    any new rights or duties or otherwise change existing rights and
    duties. We therefore find that the clarification of the term fill-in
    transmitter under the statute is an interpretative rule excepted
    from the notice and comment requirements under the APA. Moreover,
    this interpretation was reiterated in the Bureau's decision in the
    *New Hampshire MO&O*. We further find that, in the absence of a
    specific statutory definition in section 8, the *Fill-in Transmitter
    Public Notice* provided a reasonable clarification of the term
    fill-in transmitter and is consistent with the legislative history
    and congressional intent underlying the statutory fee schedule in
    section 8 of the Act.[^11] In this regard, we note that TLI does not
    assert that it lacked actual notice of the clarification of the term
    fill-in transmitter as set forth in the public notice at the time
    that TLI filed its Form 489 notification.

6.  Contrary to TLI's assertion,[^12] the fact that TLI's base station
    relocation constituted a minor modification under sections 22.123
    and 22.163 for purposes of the Part 22 rules[^13] does not mean that
    the relocation of base station KNKD849 is subject to the \$45.00
    filing fee for minor modifications under section 1.1102(50)(h) of
    the rules governing filing fees. The separate statutory filing fee
    for fill-in applications is not dependent on whether the application
    constitutes a major amendment or a minor amendment. As discussed
    above, we have specifically stated that "within contour" relocations
    of existing base stations are subject to the filing fee established
    by the Commission for fill-in transmitters pursuant to section 8 of
    the Act. We have also stated that, although licensees file minor
    modifications for such relocations of base stations, they must pay a
    filing fee equivalent to a major amendment (i.e., the \$480.00 fee
    for fill-in transmitters).[^14] The fact that the relocation of base
    station KNKD849 constitutes a minor modification for purposes of the
    Part 22 rules is therefore not relevant under the circumstances to
    determining the applicable filing fee under section 8 of the Act and
    section 1.1102 of the rules.

7.  Also contrary to TLI's assertion, the fact that the Commission has
    not amended its application fee rules to specify that minor
    modifications that do not require prior Commission approval (such as
    TLI's Form 489 notification) are subject to a \$280.00 filing fee is
    not indicative that it would be allowable to accept a \$45.00 minor
    modification filing fee for "within contour" base station
    relocations. We stated in the *Fill-in Transmitter Public Notice*
    and reiterated in *New Hampshire MO&O* that such relocations
    constituted fill-in transmitters for purposes of the determining
    filing fees under section 8 of the Act and our implementing rules.
    Amendment of our rules was and is therefore unnecessary to specify
    that such relocations are subject to a \$280.00 filing fee.

8.  ACCORDINGLY, IT IS ORDERED that the application for review filed on
    April 27, 1998 by Teletouch Licenses, Inc. IS DENIED.

9.  IT IS FURTHER ORDERED that Teletouch Licenses, Inc. IS DIRECTED to
    remit the balance of the fee payment owed in the amount of \$235.00,
    and to file a completed FCC Form 159 ("Remittance Advice") within 30
    days of the release of this memorandum opinion and order.

    FEDERAL COMMUNICATIONS COMMISSION

    Magalie Roman Salas

    Secretary

[^1]: *See* Letter from Thomas M. Holleran, Acting Associate Managing
    Director for Operations, to Harold Mordkofsky, Esq. and Richard D.
    Rubino, Esq. (dated Mar. 27, 1998) (*Mar. 27 Letter Decision*).

[^2]: *Mar. 27 Letter Decision*.

[^3]: We agree with TLI that the Managing Director's decision that the
    relocation of TLI's station constituted a major modification subject
    to a \$280.00 filing fee under section 1.1102(50)(b) was based on
    the erroneous premise that the relocated station was a fixed (as
    opposed to a base) station. Although the basis of the Managing
    Director's decision was in error, we find, as reflected above, that
    TLI is required to pay the \$280.00 fee established for fill-in
    transmitters.

[^4]: *See* 47 U.S.C. §158(g), Schedule of Application Fees (Common
    Carrier Services, 2. Domestic Public Land Mobile Stations, c. Fill
    In Transmitters (per transmitter), b. Major Modifications (per
    transmitter), and c. Minor Modification (per transmitter)).

[^5]: *See* 47 C.F.R. §§1.1102(50)(c) (Fill in Transmitters),
    1.1102(50)(b) (Major Modification), 1.1102(50)(h) (Minor
    Modifications); *see also* 47 U.S.C. §158(f) ("\[t\]he Commission
    shall assess and collect application fees at such rates as the
    Commission shall establish or at such modified rates as it shall
    establish pursuant to the provisions of subsection (b)"). This
    memorandum opinion and order refers to the rule sections in effect
    at the time TLI filed its Form 489 notification.

[^6]: *See Public Notice, Common Carrier Public Mobile Services
    Information, Clarification of Fees for Fill-in Transmitters*, Mimeo
    No. 3242 (dated May 18, 1990) (*Fill-in Transmitter Public Notice*)
    (noting that the term "fill-in transmitter" is defined in the
    legislative history underlying section 8 as a "transmitter operating
    within a presently authorized service contour such that the reliable
    service area does not exceed the already authorized service contour"
    (*quoting* Public Law No. 101-239, 103 Stat. 2106 (1989), H.R. Rept.
    No. 386, 101 Cong., 1^st^ Sess. 20-28, 433-435 (1989), 135 Cong.
    Rec. H9333, H9613 (daily ed. Nov. 21, 1989)) (*Conference Report*)).

[^7]: *See State of New Hampshire*, *Memorandum Opinion and Order*, 11
    FCC Rcd 5258, n.25 (WTB 1996) (*New Hampshire MO&O)* ("Commission
    policy requires an applicant that files a minor amendment to
    relocate a base station site, where the new contour is completely
    within the old contour, to pay a fee equivalent to a major
    amendment." (*citing* *Fill-in Transmitter Public Notice*)).

[^8]: *See* 5 U.S.C. §553(b)(3)(A); *see also* 47 C.F.R §1.412(b).

[^9]: *Yale Broadcasting Co. v. FCC*, 478 F.2d 594, 599 (D.C. Cir.
    1973).

[^10]: *See American Hospital Ass'n v. Bowen*, 834 F.2d 1037, 1046 (D.C.
    Cir. 1987) ("The function of §553\'s first exemption, that for
    \"interpretive rules,\" is to allow agencies to explain ambiguous
    terms in legislative enactments without having to undertake
    cumbersome proceedings."); *see also* *Gibson Wine Co. v. Snyder*,
    194 F.2d 329, 331 (D.C. Cir. 1952), (\"\'regulations,\'
    \'substantive rules,\' or \'legislative rules\' are those which
    create law, usually implementary to an existing law; whereas
    interpretive rules are statements as to what administrative officer
    thinks the statute or regulation means\") (interpretative rules \"do
    not have the full force and effect of a substantive rule but \[are\]
    in the form of an explanation of particular terms\"); *Orengo
    Caraballo v. Reich*, 11 F.3d 186, 195 (D.C. Cir. 1993 ("an
    interpretive statement simply indicates an agency's reading of a
    statute or a rule. It does not intend to create new rights or
    duties"); *American Mining Congress,* 995 F.2d 1106, 1112 (D.C. Cir.
    1993 (an interpretative statement may "suppl\[y\] crisper and more
    detailed lines than the authority being interpreted" without losing
    its exemption from notice and comment requirements under section
    553).

[^11]: *See* *Conference Report,* 135 Cong. Rec. H9333, H9613 (defining
    the term fill-in transmitter) (*see supra* fn. 5).

[^12]: TLI Application for Review at 5.

[^13]: The Part 22 rules govern the licensing of domestic common carrier
    radio stations and their use in the Public Mobile Services. TLI's
    relocation of base station KNKD849 constitutes a minor modification
    under 47 C.F.R. §§22.123 and 22.163 and, as such, does not require
    prior Commission approval, unlike modifications classified as
    "major" under 47 C.F.R. §22.123 which do require prior Commission
    approval. *See* 47 C.F.R. §22.123(e) (setting forth the criteria for
    classifying filings in the Paging and Radiotelephone Service as
    major or minor); *see also* 47 C.F.R. §22.163 ("\[m\]odifications to
    a station are minor if an application filed solely for the purpose
    of obtaining authorization for such modifications would not be
    classified as major in accordance with 47 C.F.R. §22.123").

[^14]: *See* *State of New Hampshire MO&O* at n.25 (as quoted *supra*);
    *see also* *Public Notice Clarifying Fill-in Transmitter Fees* (the
    filing fee for a fill-in transmitter (as the term includes the
    relocation of an existing, within contour transmitter) is equal to
    the filing fee for a major amendment).