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###### Federal Communications Commission

          - 47 CFR Part 22 
          - [PR Docket No. 92-115; FCC 00-131] 

# AGENCY:

Federal Communications Commission. 

# ACTION:

Final rule; dismissal. 

# 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                           ( print 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 § 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                           ( print page 25452)                        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