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 STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS 
 Agreeing  in  Part  and  Dissenting  in  Part 
 RE:  VoiceStream  Wireless  Corporation    Petition  for  Waiver  of  Section  64.402  of  the  Commissions  Rules. 


 The  very  first  line  of  the  Communications  Act  explains  the  Commissions  public  safety  responsibility.  It  states  that  the  Commission  was  created: 
 [  f]  or  the  purpose  of  regulating  interstate  and  foreign  commerce  in  communication  by  wire  and  radio  so  as  to  make  available,  so  far  as  possible,  to  all 
 the  people  of  the  United  States,  without  discrimination  on  the  basis  of  race,  color,  religion,  national  origin,  or  sex,  a  rapid,  efficient,  Nation-  wide,  and  world-  wide 
 wire  and  radio  communication  service  with  adequate  facilities  at  reasonable  charges,  for  the  purpose  of  the  national  defense,  [and]  for  the  purpose  of 
 promoting  safety  of  life  and  property  through  the  use  of  wire  and  radio  communication  .  .  .  1 


 We  therefore  have  the  responsibility  to  make  our  communications  system  an  effective  tool  in  times  of  national  emergency.  The  attacks  that  occurred  on  September  11 
 highlighted  both  the  immediacy  of  the  need  for  such  preparation,  and  the  utility  of  effective  communications  networks.  I  believe  that  our  government  and  our 
 communications  industries  acted  admirably,  and  even  heroically,  during  and  after  the  attack.  They  allowed  us  to  fight  the  fear  of  terror  with  the  power  of  communications,  and 
 they  should  be  commended. 
 Establishing  a  well-  conceived  priority  access  service  (  PAS)  promotes  public  safety.  I  therefore  support  the  Commissions  granting  of  a  temporary  waiver  to 
 VoiceStream  of  portions  of  our  previously  established  PAS  rules.  This  waiver  will  allow  the  National  Communications  System  (  NCS)  and  VoiceStream  to  put  a  working  PAS 
 in  place  while  a  fully  compliant  system  is  constructed. 
 Protecting  the  public  safety,  however,  extends  beyond  establishing  priority  use  of  our  networks  for  high  government  officials  and  public  safety  personnel.  We  also  have 
 the  responsibility  to  protect  all  our  citizens  use  of  the  wireless  network.  In  emergencies  the  wireless  calls  of  regular  Americans  are  critical.  People  from  all  walks  of  life  provide 
 information  about  attacks  or  disasters  to  the  government  and  must  be  able  to  call  911  or  other  emergency  responders  to  protect  their  families  and  fellow  citizens  before 
 government  officials  arrive.  Furthermore,  we  should  never  discount  the  importance  of  keeping  the  channels  of  communication  open  to  all  of  our  citizens  insofar  as  it  is  possible 
 to  do  so.  All  of  us  should  understand  the  implications  of  a  PAS.  We  should  know  whether  our  carriers  PAS  will  reduce  our  ability  to  complete  calls  in  an  emergency.  The 
 Commission  therefore  should  have  required  VoiceStream  to  disclose  to  its  customers  the  effect  the  PAS  will  have  on  the  ability  of  those  Americans  not  on  a  PAS  list  to  make  calls 


 1  47  U.  S.  C.    151  (italics  added). 
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 during  an  emergency.  This  waiver  does  not  do  so.  Therefore,  I  dissent  to  this  portion  of  the  item. 
 A  Temporary  Waiver  Will  Protect  Public  Safety 
 Sometimes  meeting  our  responsibility  to  make  our  networks  effective  tools  for  promoting  the  national  defense  and  public  safety  requires  extraordinary  actions.  One 
 such  action  is  the  creation  of  wireless  PAS.  The  NCS  requested  in  1995  that  the  Commission  implement  wireless  PAS.  NCS  explained  that  persons  involved  in  national 
 defense  and  public  safety  must  be  sure  that  they  can  make  wireless  telephone  calls  without  fear  that  congestion  of  the  network  would  make  completing  such  calls  difficult. 
 The  Commission  initiated  a  rulemaking  and  released  a  Report  and  Order  in  2000  creating  rules  for  a  wireless  PAS  system.  2 


 I  believe  that  the  Commission  has  a  special  responsibility  to  protect  public  safety,  and  I  support  the  creation  of  wireless  PAS.  A  well-  functioning  PAS  can  make  the 
 wireless  system  a  powerful  tool  in  the  hands  of  senior  government  officials  and  emergency  responders.  The  ubiquity  and  ease-  of-  use  of  the  wireless  system  is  a  great 
 asset,  and  we  should  put  it  to  work  for  the  American  people  in  emergencies.  In  such  emergencies,  above-  average  use  of  the  system  overloads  the  network,  rendering  it  less 
 useful  for  everyone.  For  these  situations,  the  government  could  assign  a  portion  of  its  spectrum  for  an  emergency  network  that  does  not  piggyback  on  the  public  network.  If  it 
 does  not,  we  must  try  to  devise  a  system  where  critical  government  users  can  depend  on  the  public  network  for  near-  certain  call  completion.  If  we  cannot  do  this  we  will  not  be 
 able  to  rely  on  the  public  wireless  network  for  this  task. 
 As  described  in  todays  Order,  the  VoiceStream  PAS  promises  to  make  their  network  available  to  government  users  at  all  times.  For  this  reason,  I  commend 
 VoiceStream  for  being  the  first  carrier  to  implement  a  PAS.  I  believe  that  it  is  important  that  VoiceStream  meet  our  full  PAS  rules  as  soon  as  possible.  Because  of  the  special 
 circumstances  created  by  the  attacks  of  September  11  th  ,  however,  I  support  a  temporary  waiver  of  our  rules  to  ensure  that  a  system  can  be  put  in  place  as  soon  as  possible,  while  a 
 completely  compliant  solution  is  in  the  works.  I  also  support  a  more  universal  examination  of  PAS  by  the  Commission  to  begin  as  soon  as  possible,  in  light  of  the  new 
 public  safety  environment. 
 We  Should  Have  Provided  All  the  Facts  to  the  American  People 
 It  is  legitimate  to  create  a  PAS  that  recognizes  that  some  communications  between  high  government  officials  and  emergency  responders  must  get  through  even  if  it 
 means  reducing  the  ability  of  the  rest  of  us  to  complete  calls.  However,  as  we  move  ahead  with  such  a  system,  we  must  ensure  that  all  Americans  fully  understand  the 
 implications  of  the  new  system. 
 2  The  Development  of  Operational,  Technical  and  Spectrum  Requirements  for  Meeting  Federal,  State  and 
 Local  Public  Safety  Agency  Communication  Through  the  Year  2010,  Second  Report  and  Order,  15  FCC  Rcd  16720  (2000)  (  PAS  2d.  R&  O). 
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 I  would  therefore  require  any  carrier  that  implements  a  PAS  to  inform  its  customers  of  the  creation  of  the  system  and  the  impact  on  its  customers  ability  to 
 complete  calls  in  an  emergency.  With  this  information  our  citizens  can  decide  which  carrier  they  are  most  comfortable  with,  and  how  much  to  rely  on  their  wireless  phone  in 
 an  emergency.  Our  reliance  on  market  forces  to  regulate  carrier  behavior  in  the  largely  unregulated  wireless  marketplace  depends  on  consumers  ability  to  make  informed 
 decisions  about  their  carrier.  We  must  not  hide  the  ball  when  it  comes  to  PAS.  Consumer  anger  will  be  overwhelming  if  the  first  time  consumers  learn  that  a  PAS  has 
 reduced  their  chance  of  completing  a  call  is  in  the  aftermath  of  an  emergency.  Our  citizens  deserve  to  be  fully  informed  ahead  of  time. 


 In  other  areas  we  do  not  require  carriers  to  disclose  every  action  that  has  an  impact  on  their  service.  But  PAS  is  obviously  a  special  circumstance.  First,  we  are 
 dealing  with  critical  public  safety  situations  here,  and  with  potentially  life-  threatening  national  emergencies  where  people  will  depend  on  their  wireless  phone  as  a  lifeline. 
 When  dealing  with  PAS  we  address  far,  far  more  important  circumstances  than  we  do  when  we  decide  not  to  require  the  disclosure  of  other  everyday  carrier  decisions  that 
 affect  service.  Second,  I  believe  that  there  is  no  way  that  even  a  diligent  consumer  can  understand  the  implications  of  PAS  on  their  service  without  carrier  disclosure.  Without  a 
 requirement  to  disclose  the  impact  of  PAS,  carriers  have  the  perverse  incentive  to  avoid  determining  the  exact  implications  of  PAS,  to  downplay  the  impact  of  PAS,  or  to  hide  the 
 existence  of  PAS  from  consumers.  This  does  not  promote  public  safety. 
 Finally,  some  argue  that  PAS  will  have  little,  if  any,  impact  on  consumers  use  of  their  systems,  and  that  informing  consumers  will  only  scare  them  into  avoiding  carriers 
 with  a  PAS.  They  argue  that  consumers  already  have  little  chance  of  completing  a  call  in  an  emergency,  and  that  PAS  will  reduce  this  chance  by  only  a  small  amount.  If  that  is  the 
 case,  then  disclosing  the  impact  of  PAS  to  consumers  should  not  dissuade  consumers  from  signing  up  with  a  carrier.  If  PAS  is  not  a  threat,  then  why  not  inform  customers?  If, 
 on  the  other  hand,  PAS  turns  out  to  seriously  undermine  customer  use  of  the  network  in  an  emergency,  and  this  causes  customers  to  avoid  particular  carriers,  why  would  we  want 
 to  protect  carriers  from  this  appropriate  market  response?  Carriers  faced  with  customers  who  are  informed  about  PAS  will  have  an  incentive  to  design  a  PAS  that  achieves 
 maximum  utility  for  both  the  government  and  consumers    the  efficient  outcome. 
 Furthermore,  it  is  important  to  note  that  todays  Order  leaves  unresolved  the  question  of  how  much  service  degradation  can  be  caused  by  PAS  before  our  rules  are 
 violated.  While  a  carrier  may  claim  to  keep  consumer  impact  to  an  additional  1  or  2  percent  reduction  in  call  completion,  our  Order  does  not  indicate  whether  a  carrier  would 
 violate  our  rules  if  this  reduction  turns  out  to  be  10  or  20  percent.  Such  a  clarification  is  much  needed.  In  the  PAS  R&  O  we  noted  the  importance  of  a  PAS  resulting  in  only  a 
 minimal  effect  on  the  general  wireless  user.  3  Todays  Order  reiterates  that  our  rule  that  [  s]  ervice  providers  who  offer  any  form  of  priority  access  service  shall  .  .  .  [i]  nsure  that  at 


 3  PAS  2d.  R&  O  at    32. 
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 all  times  a  reasonable  amount  of  CMRS  spectrum  is  made  available  for  public  use.  4  I  believe  that  this  rule  means  that  if  a  carrier  effectively  denies  its  customers  access  to 
 wireless  service  that  it  has  violated  our  PAS  rules  and  is  no  longer  protected  from  liability  under  Section  202(  a).  An  upcoming  PAS  review  by  the  Commission  should 
 clarify  how  our  existing  rules  operate. 
 Conclusion 
 Protecting  the  public  safety  is  a  primary  responsibility  of  the  Commission.  I  believe  that  establishing  a  well-  conceived  PAS  promotes  the  public  safety,  so  I  agree 
 with  our  decision  to  grant  a  temporary  waiver  of  our  rules  so  that  a  PAS  can  be  put  in  place  while  a  fully  compliant  system  is  constructed. 


 I  also  believe,  however,  that  protecting  the  public  safety  extends  to  giving  all  Americans  the  information  we  need  to  protect  ourselves.  The  Commission  should  have 
 required  VoiceStream  to  disclose  to  its  customers  the  fact  that  it  is  instituting  a  PAS  and  to  disclose  the  effect  of  the  PAS  on  consumers  ability  to  make  calls  during  an 
 emergency.  It  is  this  lack  of  basic  disclosure  that  forces  my  dissent  to  this  portion  of  the  waiver. 


 4  47  C.  F.  R.    64.402,  Appendix  B. 
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