[Federal Register Volume 65, Number 85 (Tuesday, May 2, 2000)]
[Rules and Regulations]
[Pages 25450-25452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10843]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 22

[PR Docket No. 92-115; FCC 00-131]


Revision of the Commission's Rules Governing the Public Mobile 
Services

AGENCY: Federal Communications Commission.

ACTION: Final rule; dismissal.

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SUMMARY: In this document, the Commission dismisses in part, and grants 
in part thirty-seven petitions for reconsideration filed against an 
earlier Federal Communications Commission (Commission) order. The 
Commission also dismisses a petition for declaratory ruling filed by 
Graceba Total Communications, Inc. (Graceba) regarding Basic Exchange 
Telephone Radio Systems (BETRS). These actions are taken because most 
of the issues raised on reconsideration have either been resolved or 
rendered moot by the transition to geographic area licensing in the 
paging services. The other issues were rendered moot by the Universal 
Licensing System (ULS) proceeding which streamlined the application, 
assignment, and transfer processes according to the Commission's rules 
to facilitate the development and use of the ULS. The Commission also 
grants various petitions because any disadvantages to permitting shared 
use are outweighed by the cost efficiencies to licensees and creates a 
potential cost savings to the public. With regards to the Graceba 
petition, this action was taken because the issue was resolved in a 
previous Commission order.

DATES: Effective May 2, 2000.

FOR FURTHER INFORMATION CONTACT: Don Johnson, Policy and Rules Branch, 
Commercial Wireless Division, Wireless Telecommunications Bureau, at 
(202) 418-7444.

SUPPLEMENTARY INFORMATION: This Memorandum Opinion and Order on 
Reconsideration in CC Docket No. 92-115, adopted April 6, 2000 and 
released April 17, 2000 is available for inspection and copying during 
normal business hours in the FCC Reference Center, 445 Twelfth Street, 
S.W., Washington D.C. The complete text may be purchased from the 
Commission's copy contractor, International Transcription Service, 
Inc., 1231 20th Street, N.W., Washington D.C. 20036 (202) 857-3800. The 
document is also available via the internet at http://www.fcc.gov/Bureaus/Wireless/Orders/2000/index2.html.
    Synopsis of Memorandum Opinion and Order on Reconsideration: In 
(MO&O on Reconsideration), the Commission disposes of 37 petitions for 
reconsideration (petitions) regarding various issues addressed in the 
Part 22 Rewrite Order. We grant various petitions to the extent they 
seek reconsideration of our policy prohibiting the use of shared 
transmitters by Part 22 licensees. With respect to all other issues 
addressed, we dismiss or deny the petitions. Additionally, we dismiss a 
petition for

[[Page 25451]]

declaratory ruling filed by Graceba Total Communications, Inc. 
(Graceba) regarding Basic Exchange Telephone Radio Systems (BETRS).
    1. In this MO&O on Reconsideration, the Commission disposes of 37 
petitions for reconsideration (petitions) regarding various issues 
addressed in the Part 22 Rewrite Order, 60 FR 3555 (1995). We grant 
various petitions to the extent they seek reconsideration of our policy 
prohibiting the use of shared transmitters by Part 22 licensees. With 
respect to all other issues addressed, we dismiss or deny the 
petitions. Additionally, we dismiss a petition for declaratory ruling 
filed by Graceba Total Communications, Inc. (Graceba) regarding Basic 
Exchange Telephone Radio Systems (BETRS).

Discussion

    2. Most of the issues raised on reconsideration of the Part 22 
Rewrite Order have either been resolved in or rendered moot by 
subsequent proceedings. For example, several parties raised issues 
relating to site-by-site licensing of paging systems. These issues have 
been rendered moot by the transition to geographic area licensing in 
the paging services. Other licensing issues were addressed in or 
rendered moot by the Universal Licensing System Proceeding in which we 
streamlined our application and assignment and transfer processes for 
Part 22 licenses. To the extent the issues have not been effectively 
addressed elsewhere, except as discussed, in this section, the 
petitions raise a variety of minor issues involving procedural 
requirements and operational rules affecting Part 22 licensees. We find 
these arguments unpersuasive, and in many respects they only repeat 
arguments that we considered and rejected previously in this 
proceeding. Nothing in the record as it now stands warrants alteration 
of any decisions addressed in the petitions, except for the reversal of 
our policy regarding the use of shared transmitters by Part 22 
licensees.
    3. We note in particular that several petitioners seek 
reconsideration of the rule requiring cellular mobile transmitters to 
have a unique and unalterable Electronic Serial Number (ESN). 
Petitioners argue generally that this rule unnecessarily restricts 
legitimate activities and that it is not the most effective method of 
combating fraud. Since the record in this proceeding was compiled in 
1994, anti-fraud practices, technologies and the market for cellular 
services have changed considerably, and in addition, Congress has 
passed potentially relevant legislation. We therefore find that the 
current record is not useful for evaluating the continued need for or 
appropriate form of the cellular ESN rule. We further conclude that 
nothing in the Part 22 Rewrite Order improperly adjudicated the rights 
of parties under the preexisting cellular system compatibility rule in 
violation of the Administrative Procedure Act, and that nothing in our 
discussion of cellular ESNs was improperly based on undisclosed ex 
parte contacts. We therefore deny the petitions relating to the 
cellular ESN rule. We will, however, review the cellular ESN rule as 
part of our upcoming biennial review of regulations affecting providers 
of telecommunications services.
    4. Several petitioners also seek reconsideration of the uncodified 
policy stated in paragraph 71 of the Part 22 Rewrite Order, which 
prohibits the use of shared transmitters by Part 22 licensees. On 
January 10, 1995, before the Part 22 Rewrite Order became effective, 
the Commission stayed the policy prohibiting the use of shared 
transmitters. In the Part 22 Rewrite Order, the Commission prohibited 
the use of shared transmitters because it was concerned about issues 
regarding the control and responsibility for these transmitters, and 
because it was concerned that outages of shared transmitters would 
cause broad service disruptions. In the Stay Order, 60 FR 3555 (January 
18, 1995), the Commission recognized that it had previously allowed 
dual licensing of Part 22 transmitters and was continuing to allow dual 
licensing in the part 90 private paging services, and that its new 
policy could result in inconsistent treatment of similar services. In 
addition, the Commission noted that outages are more likely to be 
detected and corrected if a transmitter is used by multiple licensees. 
The Stay Order has remained in effect for approximately five years. In 
light of the apparent lack of problems with the use of shared 
transmitters in the Part 22 and Part 90 services to date, we conclude 
that any disadvantages to permitting shared use are outweighed by the 
cost efficiencies to Part 22 licensees and potential cost savings to 
the public. Therefore, we grant the various petitions to the extent 
they seek reconsideration of this policy, lift the stay, and reverse 
the uncodified policy prohibiting the shared use of transmitters.
    5. On December 19, 1994, Graceba filed a request for declaratory 
ruling (request) regarding Basic Exchange Telephone Radio Systems 
(BETRS). Graceba requests that the Commission specify the required 
grade of service in evaluating BETRS applications. We have dealt 
extensively with BETRS issues in the Paging Systems Reconsideration 
Order. Therefore, pursuant to our discretion under Sec. 1.2 of the 
Commission's rules, we decline to issue a declaratory ruling and we 
dismiss Graceba's request.

Procedural Matters

    6. Paperwork Reduction Act of 1995 Analysis. The policy changes 
adopted in this MO&O on Reconsideration have been analyzed with respect 
to the Paperwork Reduction Act of 1995 (the ``1995 Act'') and impose no 
new or modified information collection requirements on the public.
    7. Supplemental Final Regulatory Flexibility Certification. The 
Regulatory Flexibility Act of 1980, as amended (RFA) requires that a 
final regulatory flexibility analysis be prepared for notice-and-
comment rulemaking proceedings, unless the agency certifies that ``the 
rule will not, if promulgated, have a significant economic impact on a 
substantial number of small entities.'' The RFA generally defines 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. 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). We certify that the policy change adopted in this 
MO&O on Reconsideration will not have a significant economic impact on 
a substantial number of small business entities because the previous 
policy was never enforced or codified in the Commission's rules.

Ordering Clauses

    8. Pursuant to sections 1, 4(i), 4(j) and 405 of the Communications 
Act of 1934, as amended, 47 U.S.C. 151, 154(i),154(j), and 405, and 
section 1.106, of the Commission's rules, 47 CFR 1.106, the petitions 
for reconsideration of the Part 22 Rewrite Order are granted to the 
extent they seek reconsideration of the Commission's policy prohibiting 
the use of shared transmitters by Part 22 licensees, the Stay Order IS 
LIFTED, and the policy is reversed.
    9. The petitions for reconsideration of the Part 22 Rewrite Order 
are in all other respects dismissed or denied.
    10. Pursuant to sections 1, 4(i), and 4(j) of the Communications 
Act of 1934, as amended, 47 U.S.C. 151, 154(i),154(j), and section 1.2 
of the Commission's

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rules, 47 CFR 1.2, the Petition for Declaratory Ruling filed by Graceba 
Total Communications, Inc. IS DISMISSED.
    11. The Commission's Consumer Information Bureau, Reference 
Information Center, SHALL SEND a copy of this Memorandum Opinion and 
Order on Reconsideration, including the Supplemental Final Regulatory 
Flexibility Certification, to the Chief Counsel for Advocacy of the 
Small Business Administration.
    12. For additional information concerning this matter, contact Don 
Johnson (202-418-7240), Wireless Telecommunications Bureau, Commercial 
Wireless Division, Policy and Rules Branch.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 00-10843 Filed 5-1-00; 8:45 am]
BILLING CODE 6712-01-U