Federal Register / Vol. 83, No. 35 / Wednesday, February 21, 2018 / Rules and Regulations 7395 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2018–0097] 

Drawbridge Operation Regulation; 

Mianus River, Greenwich, CT 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of deviation from 

drawbridge regulation. 

SUMMARY: The Coast Guard has issued a 

temporary deviation from the operating 

schedule that governs the Metro-North 

Bridge across the Mianus River, mile 1.0 

at Greenwich, Connecticut. The 

deviation is necessary to repair the 

superstructure and replace timber ties. 

This deviation allows the bridge to be 

closed to navigation. 

DATES: This deviation is effective from 

8 a.m. on April 10, 2018 to 8 a.m. on 

May 14, 2018. 

ADDRESSES: The docket for this 

deviation, USCG–2018–0097 is available 

at http://www.regulations.gov. Type the 

docket number in the ‘‘SEARCH’’ box 

and click ‘‘SEARCH’’. Click on Open 

Docket Folder on the line associated 

with this deviation. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this temporary 

deviation, call or email Mr. Jeffrey Stieb, 

First Coast Guard District Bridge 

Branch, Coast Guard; telephone 617– 

223–8364, email Jeffrey.D.Stieb@

uscg.mil. 

SUPPLEMENTARY INFORMATION: The owner 

of the bridge, the Connecticut 

Department of Transportation (CT DOT), 

requested a temporary deviation to 

conduct superstructure repair and 

timber ties replacement. The MetroNorth Bridge across the Mianus River, 

mile 1.0, at Greenwich Connecticut has 

a vertical clearance in the closed 

position of 20 feet at mean high water 

and 27 feet at mean low water. The 

existing bridge operating regulations are 

found at 33 CFR 117.209. 

This temporary deviation allows the 

bridge to operate from 8 a.m. April 10, 

2018 to 8 a.m. on Monday, May 14, 2018 

as follows: From 8 a.m. Monday through 

4 p.m. Friday, the draw is authorized to 

remain closed to navigation; from 4:01 

p.m. Friday to 7:59 a.m. Monday, the 

draw shall open with 24 hours advance 

notice. 

The deviation will have negligible 

effect on vessel navigation. The 

waterway is transited primarily by 

seasonal recreational vessels and small 

commercial fishing vessels. In 2016 

there were six openings and in 2017 

there were 19 openings between the 

effective dates. CT DOT has notified 

waterway users, the harbormaster, and 

town officials of the requested 

deviation. No objections to the proposed 

closure were received. Vessels that can 

pass through the bridge in the closed 

position may continue to do so. The 

bridge will not be able to open for 

emergencies and there is no immediate 

alternate route for vessels to pass. CT 

DOT will issue a press release 

announcing the closure. The Coast 

Guard will inform waterway users of the 

closure through Local and Broadcast 

Notices to Mariners. 

In accordance with 33 CFR 117.35(e), 

the drawbridge must return to its regular 

operating schedule immediately at the 

end of the effective period of this 

temporary deviation. This deviation 

from the operating regulations is 

authorized under 33 CFR 117.35. 

Dated: February 14, 2018. 

Christopher J. Bisignano, 

Supervisory Bridge Management Specialist, 

First Coast Guard District. 

[FR Doc. 2018–03470 Filed 2–20–18; 8:45 am] 

BILLING CODE 9110–04–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 1, 4, 9, and 20 

[WT Docket No. 16–240; FCC 17–167] 

Requirements for Licensees To 

Overcome a CMRS Presumption 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the Federal 

Communications Commission adopts 

rules to harmonize and streamline the 

Commission’s regulations regarding the 

classification of commercial and private 

mobile radio services, primarily by 

removing provisions in the 

Commission’s rules that were outdated 

or unnecessary. The rules in question 

list various services or subservices that 

the Commission had classified as 

‘‘mobile services’’ and determined to be 

‘‘commercial mobile radio services’’ (or 

‘‘CMRS’’) (in accordance with the 

definitions set forth in the 

Communications Act). These rules also 

establish in certain instances a 

presumption that some services are 

private mobile radio services (or 

‘‘PMRS’’), and set out a process by 

which that presumption can be 

rebutted. This action also removes any 

presumptions about whether mobile 

services are regulated as commercial or 

private, and instead allows licensees to 

rely on the statutory definitions of those 

terms to identify the nature and 

regulatory treatment of their mobile 

services, consistent with applicable 

service rules. 

DATES: Effective March 23, 2018. 

FOR FURTHER INFORMATION CONTACT: 

Thomas Reed at thomas.reed@fcc.gov, of 

the Wireless Telecommunications 

Bureau, Mobility Division, (202) 418– 

0531. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Report 

and Order (Order) in WT Docket No. 

16–240, FCC 17–167, released on 

December 18, 2017. The complete text 

of the Order, including all Appendices, 

is available for inspection and copying 

during normal business hours in the 

FCC Reference Center, 445 12th Street 

SW, Room CY–A157, Washington, DC 

20554, or by downloading the text from 

the Commission’s website at http://

transition.fcc.gov/Daily_Releases/Daily_

Business/2017/db1218/FCC-17- 

167A1.pdf. 

Alternative formats are available for 

people with disabilities (Braille, large 

print, electronic files, audio format), by 

sending an email to FCC504@fcc.gov or 

calling the Consumer and Government 

Affairs Bureau at (202) 418–0530 

(voice), (202) 418–0432 (TTY). 

The Commission will send a copy of 

the Order 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). 

I. Report and Order 

1. The Commission adopted §§ 20.7 

and 20.9 in 1994 as part of its 

implementation of Sections 3(n) and 

332 of the Communications Act, which 

Congress amended in the Omnibus 

Budget Reconciliation Act of 1993 

(OBRA). Congress, seeking to bring 

mobile services that were similar in 

nature under a consistent regulatory 

framework, created the statutory 

classifications of ‘‘commercial mobile 

services’’ and ‘‘private mobile services’’ 

(referred to in Commission rules as 

commercial mobile radio service and 

private mobile radio service, 

respectively). The Communications Act 

defines commercial mobile service as 

‘‘any mobile service . . . that is 

provided for profit and makes 

interconnected service available (A) to 

the public or (B) to such classes of 

eligible users as to be effectively 

available to a substantial portion of the 

public[.]’’ ‘‘Private mobile service’’ is 

defined in the negative as ‘‘any mobile 


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7396 Federal Register / Vol. 83, No. 35 / Wednesday, February 21, 2018 / Rules and Regulations 

service . . . that is not a commercial 

mobile service or the functional 

equivalent of a commercial mobile 

service[.]’’ In the 1994 CMRS Second 

Report and Order (GN Docket No. 93– 

252) (59 FR 18493), the Commission 

mirrored these definitions in § 20.3 of 

its rules. Thus, § 20.3 defines 

‘‘commercial mobile radio service’’ as a 

for-profit, interconnected mobile service 

that is available to the public; or to such 

classes of eligible users as to be 

effectively available to a substantial 

portion of the public; or the functional 

equivalent of such a for-profit, 

interconnected mobile service. ‘‘Private 

mobile radio service’’ is defined as a 

mobile service that is neither a 

commercial mobile radio service nor the 

functional equivalent of a commercial 

mobile radio service. Similarly, the 

Commission largely mirrored the 

statutory definition of ‘‘mobile services’’ 

in its definition in the rules. 

2. The Commission, in adopting 

§§ 20.7 and 20.9, conducted an 

extensive review of the 1993 OBRA, its 

legislative history, and developments in 

the regulation of wireless services. The 

Commission noted that Congress 

‘‘replaced the common carrier and 

private radio definitions that evolved 

under the prior version of section 332 of 

the Act with two newly defined 

categories of mobile services: 

Commercial mobile radio service 

(CMRS) and private mobile radio service 

(PMRS),’’ and ‘‘replaced traditional 

regulation of mobile services with an 

approach that brings all mobile service 

providers under a comprehensive, 

consistent regulatory framework and 

gives the Commission flexibility to 

establish appropriate levels of 

regulation for mobile radio service 

providers.’’ Two Congressional 

objectives appeared to drive these 

statutory changes: (1) Ensuring that 

‘‘similar [mobile] services would be 

subject to consistent regulatory 

classification[,]’’ and (2) establishing 

and administering for CMRS providers 

‘‘an appropriate level of regulation.’’ 

3. Applying the purpose of the 

legislation to include all existing mobile 

services within the ambit of section 332 

and in view of the goal of achieving 

regulatory symmetry, the Commission 

stated that all existing mobile services 

will be included within the ambit of 

section 332 as well as all auxiliary 

services and ancillary fixed 

communications offered by such service 

providers. In addition, the Commission 

stated that ‘‘unlicensed PCS and part 15 

devices will not be included under the 

definition of mobile services,’’ but other 

unlicensed services meeting the 

definition of CMRS, such as the resale 

of CMRS, are mobile services within the 

meaning of sections 3(n) and 332 of the 

Communications Act. Section 20.7 

memorialized these and listed the 

existing mobile services. 

4. In addition, applying the statutory 

criteria to the existing common carrier 

mobile services at the time, the 

Commission identified in § 20.9(a) 

thirteen specific mobile service bands 

(or subsets thereof) that met the 

definition of CMRS and would be 

treated as common carrier services. At 

the time, in the wake of the 1993 OBRA, 

the list served as a clear, easily applied 

tool for implementing the new CMRS 

classification and creating certainty 

about which regulatory regime would 

apply to a given license band. The 

primary reason this approach worked 

well was because many of the servicespecific wireless rule parts drew clear 

lines between commercial and private 

operation in terms of service rules, 

obligations, and usage, and the licensed 

operations within a given service were 

often limited by rule either to common 

or private carriage. If a licensee of a 

service band identified in § 20.9(a) 

wished to provide service on a private 

basis, it would have needed to seek a 

waiver of § 20.9(a). Section 20.9(b) 

identifies three services that are 

specifically presumed to be CMRS 

(rather than deemed to be regulated as 

CMRS in § 20.9(a)) and prescribes a 

certification process for overcoming that 

presumption in cases where the 

provider intends to operate on a PMRS 

basis. 

5. In crafting the § 20.9(a) approach, 

the Commission also noted that 

Congress was concerned with the 

‘‘disparate regulatory treatment’’ that 

had evolved across services, and it 

observed that Congress’s intent for the 

Commission to establish consistent 

regulations was reflected in the 

statutory requirement that any service 

that amounted to the ‘‘functional 

equivalent’’ of CMRS be treated as such, 

even if it did not meet the strict 

definition. At the same time, the 

Commission ‘‘anticipat[ed] that very few 

mobile services that do not meet the 

definition of CMRS will be a close 

substitute for a [CMRS].’’ Because the 

Commission expected that the 

functional equivalency test would be 

applied only rarely, it decided to create 

another presumption—i.e., to ‘‘presume 

that a mobile service that does not meet 

the definition of CMRS is a [PMRS].’’ To 

rebut that presumption, a challenger to 

a PMRS claim could file a petition for 

declaratory ruling attempting to show 

that the service at issue met the 

definition of CMRS or was the 

functional equivalent of CMRS. Section 

20.9(a)(14) memorializes this 

presumption and the process for 

overcoming the presumption. 

6. For the services listed in § 20.9(b), 

the rules state that service may be 

provided on a PMRS basis only if the 

licensee or applicant overcomes the 

presumption that those services are 

CMRS through a specific certification 

process. Specifically, § 20.9(b) requires 

licensees of, or applicants for, Personal 

Communications Service (PCS), VHF 

Public Coast Stations, and Automated 

Maritime Telecommunications Systems 

(AMTS) that want to operate on a PMRS 

basis to include a certification as part of 

an authorization, modification, 

transaction, or spectrum leasing 

application demonstrating that the 

proposed service does not fall within 

the definition of CMRS. The application 

is placed on public notice for 30 days, 

during which interested parties may file 

petitions to deny. 

7. While § 20.9’s regulatory treatment 

of certain service bands may well have 

been a reasonable tool when it was 

adopted, it was based on assumptions 

that no longer apply—namely that a 

licensee would offer a service restricted 

either to CMRS or PMRS use rather than 

seek to have the flexibility to operate as 

both. In recent years, the Commission’s 

spectrum regulation has turned toward 

a flexible use model that no longer 

supports this particular treatment 

embedded in the Commission’s rules. 

Section 20.9 was adopted at a time 

when there were far fewer wireless 

licensees and services than exist today. 

Dramatic changes have occurred in the 

wireless industry since then. Notably, 

licensees of spectrum bands not 

identified in § 20.9 are governed by 

service-specific rules that afford entities 

greater flexibility in how operations can 

be provided and that do not presume 

them to be CMRS or PMRS. Applicants 

and licensees in these newer services 

can select whether they will be 

providing common carrier service, noncommon carrier service, and/or private, 

internal communications on FCC Form 

601 or in other applications. Moreover, 

the continuing demand for PMRS use of 

spectrum—including spectrum that 

providers, in the past, had primarily 

sought for CMRS use—has altered 

another of the underlying assumptions 

of § 20.9(a), i.e., that the demand to 

operate services referenced in § 20.9 is 

primarily a demand to offer such 

services on a CMRS basis. 

8. In light of the broadened interest in 

and need for spectrum covered by § 20.9 

by an increased diversity of licensees, 

the Commission has sought to provide 

greater flexibility to applicants, 


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1The Commission’s references to spectrum 

lessees also include spectrum sublessees. 

licensees, and spectrum lessees 1 subject 

to § 20.9, but these efforts have 

nonetheless left some entities with 

burdens that their counterparts in other 

spectrum bands do not face. In 2005, for 

example, the Commission eliminated 

the restriction that entities must operate 

as common carriers in order to hold a 

part 22 license. Despite this change, part 

22 applicants, licensees, and spectrum 

lessees are still required to seek a waiver 

of § 20.9(a) if they plan to operate on a 

non-CMRS basis. In recent years, 

applicants, licensees, and spectrum 

lessees in many services presumed to be 

CMRS have requested waiver of 

§ 20.9(a) as part of an initial 

authorization, modification, transaction, 

or spectrum leasing application, and the 

inclusion of the waiver request often 

increases the time it takes the 

Commission to process the application. 

For example, a paging assignment 

application in which the assignee 

includes a waiver request must go on 

public notice for a minimum of 14 days. 

Absent the waiver request, the 

application otherwise might be subject 

to overnight grant under the 

Commission’s processing rules. 

Similarly, the § 20.9(b) process for PCS, 

VHS Public Coast station services, and 

AMTS licensees to certify that their 

proposed operations are not commercial 

is cumbersome and time-consuming. 

Applications that include a § 20.9(b) 

certification often could be granted on 

an overnight basis absent § 20.9(b)’s 

public notice requirement. 

9. To address these inefficiencies, the 

Commission in July 2016 released a 

Notice of Proposed Rulemaking (WT 

Docket No. 16–240) (NPRM) (81 FR 

55161) recognizing that § 20.9’s 

approach to the regulatory status of 

certain bands was not the only way to 

administer the CMRS/PMRS statutory 

framework, and seeking comment on 

whether to eliminate this approach by 

removing § 20.9 from its rules. The 

Commission tentatively concluded that 

doing so would streamline application 

processing and promote comparable 

treatment of wireless applicants and 

licensees operating in different 

spectrum bands. The Commission 

anticipated that this revision of its rules 

would shorten the processing time for a 

number of applications and eliminate 

the obligation of licensees and 

applicants in the specified § 20.9 bands 

to make a showing—even if brief— 

regarding their intent to operate on a 

PMRS-basis. It tentatively concluded 

that this, in turn, would lead to more 

efficient and timely use of spectrum, 

without imposing more regulatory 

burdens than necessary for the 

Commission to oversee spectrum usage. 

The Commission sought comment on its 

tentative conclusions and on the costs 

and benefits of its proposed rule 

elimination. Five parties filed comments 

and two parties filed reply comments in 

response to the NPRM, all of which 

generally support elimination of § 20.9. 

10. The Commission also sought 

comment in the NPRM on eliminating 

§ 20.7’s list of certain services that meet 

the statutory definition of ‘‘mobile 

service’’ as used in sections 3(n) and 

332 of the Act. This list is underinclusive—it does not include all the 

services that are, in fact, ‘‘mobile 

services’’ under the statutory language 

and the § 20.3 definition. The 

Commission tentatively concluded that 

§ 20.7 no longer serves a useful purpose 

and stressed that eliminating § 20.7 

would not change the definition of 

‘‘mobile service’’ contained in § 20.3 of 

the rules. 

II. Streamlining Part 20 of the 

Commission’s Rules 

11. Elimination of § 20.9. The 

Commission removes § 20.9 from its 

rules, eliminating that section’s 

approach for determining whether 

services provided in the specified 

frequency bands are CMRS. There is 

unanimous support for this rule change, 

with every commenter addressing this 

issue supportive of the Commission 

removing § 20.9 in its entirety. This 

action is also consistent with the 

Commission’s recent steps in the WRS 

Second Report and Order and Further 

Notice of Proposed Rulemaking, 

released on August 3, 2017 (WT Docket 

No. 10–112) (82 FR 41580), to 

harmonize renewal and other regulatory 

requirements across services and to 

simplify regulatory processes. Going 

forward, licensees and applicants whose 

services were subject to § 20.9 can rely 

on the relevant definitions in the 

Communications Act and the 

Commission’s rules—which articulate 

with sufficient clarity what constitutes 

CMRS and PMRS—to identify the 

nature of their services in relevant 

Commission applications. Akin to their 

counterparts operating in other 

frequency bands that already 

accommodate flexible use, these entities 

may provide any service that is 

consistent with the technical rules of 

the band in which they operate. 

Licensees will no longer need to seek 

waivers or submit certifications to the 

Commission before they can provide 

non-commercial services; they need 

only look to the definitions of CMRS 

and PMRS to determine their regulatory 

status and proceed accordingly. 

12. Eliminating § 20.9 is consistent 

with the Commission’s ongoing efforts 

to facilitate flexible use of spectrum, 

and will allow licensees to respond 

more quickly to consumer demand and 

competitive forces. Moreover, removing 

§ 20.9 will help eliminate uneven and 

disparate regulation of wireless 

applicants and licensees in different 

spectrum bands. The Commission finds 

that the public interest is best served by 

treating similarly situated entities on a 

more equal, comparable basis. As 

previously discussed, Congress’s intent 

in creating the CMRS and PMRS 

umbrella service definitions was to 

ensure that similarly situated service 

providers were operating on the same 

regulatory footing, and the Commission 

aimed to effectuate this intent by 

adopting § 20.9. But as a result of the 

changes that have occurred in the 

preceding two decades, entities 

operating in frequency bands subject to 

§ 20.9 are not treated the same as their 

competitors in other bands. Rather, if 

they wish to use the spectrum for noncommercial services, this subset of 

licensees and applicants must file 

requests for waivers of § 20.9(a) or 

certifications that operations are not 

CMRS under § 20.9(b), and they must 

endure delays associated with the 

required public notice periods, even 

though the requests and certifications 

are usually granted on a routine basis. 

Several commenters highlight how 

elimination of § 20.9 will reduce 

burdens for such entities, enabling them 

to put their spectrum to efficient use 

more quickly. 

13. The Commission also expects that 

removing § 20.9 will enable service 

providers to more easily meet the 

continuing demand for PMRS and other 

non-traditional CMRS operations that 

serve the public interest. The 

Commission concludes that elimination 

of § 20.9 will help bring beneficial 

services to businesses, state and local 

governments, and the public safety 

community, while reducing the 

administrative burdens and processing 

delays that certain providers of these 

services currently face. 

14. A few commenters caution the 

Commission that any rule changes 

should not substantively alter CMRS 

and PMRS licensees’ respective 

regulatory obligations or expectations 

regarding their licenses. Nothing here is 

intended to substantively change the 

definitions of CMRS and PMRS in § 20.3 

of the Commission’s rules, which 

generally track the statutory definitions 

and which provide sufficiently clear 

guidance to enable providers to 


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7398 Federal Register / Vol. 83, No. 35 / Wednesday, February 21, 2018 / Rules and Regulations 

2As the Commission explained in the NPRM, 

such CMRS obligations include, but are not limited 

to, roaming obligations, provision of E911 services, 

obligations pursuant to the Communications 

Assistance for Law Enforcement Act, and 

compliance with hearing aid compatibility 

requirements. 

3This subsection’s reference to the definition of 

CMRS is stated without limitation and therefore 

includes a service that is defined as CMRS under 

either the ‘‘(a)’’ or ‘‘(b)’’ paragraphs of the § 20.3 

definition of CMRS. 

4Note that this definition includes services 

meeting the three elements of the definition’s (a) 

paragraph and services meeting the definition’s (b) 

paragraph covering services that are the functional 

equivalent of those satisfying the three elements of 

paragraph (a). 

5 47 CFR 20.3 (defining Private Mobile Radio 

Service as a ‘‘mobile service that is neither a 

commercial mobile radio service nor the functional 

equivalent of a service that meets the definition of 

commercial mobile radio service’’); 47 U.S.C. 

332(d)(3) (defining ‘‘private mobile service’’ as ‘‘any 

mobile service . . . that is not a commercial mobile 

service or the functional equivalent of a commercial 

mobile service, as specified by regulation by the 

Commission’’). 

continue to determine the nature of 

their services accurately. Nor does the 

Commission take any action in this 

Order to change the regulatory 

obligations that attach to CMRS 

operations 2 or to PMRS operations. 

Entities may continue to provide both 

CMRS and PMRS under the same 

license, to the extent allowed by, and 

subject to, the statutes, rules, and 

requirements that otherwise apply to the 

particular service at issue. 

15. As the Commission proposed in 

the NPRM, applicants and licensees that 

were subject to § 20.9 and that utilize 

ULS can inform Commission staff in 

initial, modification, transaction, or 

spectrum leasing applications whether 

they seek authorization to provide or 

use their service for any of the 

applicable service offerings—‘‘common 

carrier,’’ ‘‘non-common carrier,’’ and/or 

‘‘private, internal communications’’— 

without any additional showing, as 

applicants and licensees already do in 

spectrum bands that already 

accommodate flexible use. In other 

words, they can select ‘‘non-common 

carrier’’ and/or ‘‘private, internal 

communications,’’ as applicable, 

without needing to include a waiver 

request or certification to prove that 

their service is not CMRS. There is no 

opposition to this approach from 

commenters. Importantly, this will not 

place any additional burdens on 

applicants and licensees. The 

Commission’s rules already permit 

entities to self-identify their regulatory 

status but, because of § 20.9, entities 

using spectrum in identified frequency 

bands had to go through the additional 

administrative processes discussed 

above. Based on the forgoing, the 

Commission eliminates the need for 

them to do so. 

16. PMRS Presumption and Rebuttal 

Process. As discussed above, 

§ 20.9(a)(14) sets forth a rebuttable 

presumption that ‘‘[a] mobile service 

that does not meet the definition of 

commercial mobile radio service is 

presumed to be a private mobile radio 

service,’’ 3 and it sets out the process for 

rebutting such a presumption. This only 

acts as a presumption, however, with 

respect to an ‘‘interested party’s’’ 

challenge to a provider’s claim that its 

service is PMRS, in light of the implicit 

factual assertion that the service does 

not meet the definition of CMRS. If the 

challenger cannot overcome the 

presumption of the validity of the 

provider’s claim that its service does 

not, as a factual matter, meet the § 20.3 

definition of CMRS,4 then the PMRS 

status of the operation at issue has been 

established as a definitional matter 

under the rule and statute, and this 

challenge will fail.5

17. In the NPRM, the Commission 

observed that the rules do not need to 

identify service bands that will be 

treated as CMRS in order to establish a 

framework within which a provider can 

claim PMRS status (presumptively or 

otherwise). There are other approaches 

for identifying whether a licensee’s 

proposed or existing operations should 

be classified one way or another, such 

as allowing the licensee, in the first 

instance, to make that determination 

with respect to its individualized 

operations, based on the existing 

definitions of PMRS and CMRS. The 

Commission suggested that changes to 

its approach of using a rebuttable PMRS 

presumption ‘‘may now be warranted 

based on the development of CMRS and 

PMRS services and [the Commission’s] 

experience with the application of the 

presumption, such as how parties have 

used it, how often and how successfully 

it has been challenged, and whether it 

tends to streamline the licensing 

processes or encumber them.’’ The 

Commission observed that § 20.3 of the 

rules defines CMRS to include mobile 

services that are the ‘‘functional 

equivalent’’ of CMRS, and therefore—in 

combination with other Commission 

rules and processes—ensures that any 

service that amounts to the ‘‘functional 

equivalent’’ of CMRS is treated as such. 

18. The Commission recognized, 

however, that elimination of § 20.9 in its 

entirety would also include deletion of 

§ 20.9(a)(14)(ii), which enumerates 

several factors that the Commission may 

consider in determining whether a 

mobile service is the ‘‘functional 

equivalent’’ of CMRS in cases where an 

interested party challenges a claim that 

operations are presumptively classified 

as PMRS. The Commission sought 

comment on whether retaining 

§ 20.9(a)(14) or any of its subsections 

would be useful ‘‘as a practical and 

procedural set of guidelines’’ for both 

mobile service providers and the 

Commission when applying the 

definitions of CMRS and PMRS, and 

whether it should move this language to 

§ 20.3 or another section in part 20. 

Only two commenters addressed the 

issue. One argued for the removal of the 

PMRS presumption while the other 

requested that the Commission maintain 

sufficient clarity in the definition of, 

and requirements for, PMRS and CMRS 

classifications. 

19. The Commission retains the key 

aspects of the PMRS presumption by 

revising its definition of Private Mobile 

Radio Service in § 20.3 to provide a 

party with a presumption that it meets 

that definition (as against a challenge 

that the service is CMRS), if the service 

in question does not meet the three 

specific elements for qualifying as a 

CMRS under paragraph (a) of the § 20.3 

CMRS definition. In such case, a 

challenger would bear the burden of 

proving that the service meets paragraph 

(b) of the CMRS definition (i.e., that it 

is the functional equivalent of a service 

that satisfies the paragraph (a) elements) 

and therefore does not qualify as PMRS. 

While the rules thus continue to 

recognize that a service not meeting the 

specific paragraph (a) elements of the 

CMRS definition is presumptively 

PMRS, the Commission declines 

otherwise to carve out the rebuttal 

process from its elimination of section 

20.9. The Commission anticipates that 

the CMRS and PMRS definitions in 

§ 20.3 as revised in this Order will 

provide sufficient clarity to enable the 

Commission, licensees and spectrum 

lessees, and members of the public to 

differentiate between CMRS and PMRS 

and, relatedly, to assess whether a 

licensee is offering a service that is the 

‘‘functional equivalent’’ of CMRS. At the 

same time, The Commission has 

identified various benefits of 

eliminating the use of the scheme 

embodied in § 20.9, which has 

discouraged the flexible use of spectrum 

in the identified frequency bands and 

created unnecessary hurdles for a subset 

of mobile service providers. 

20. In sum, the Commission sees no 

need to retain any of the § 20.9 

provisions about whether service being 

provided in a particular frequency band 

is commercial or private, or to retain 

rebuttal procedures crafted as part of the 

§ 20.9 approach. Even without 

§ 20.9(a)(14), interested parties will 

continue to have avenues available to 


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Federal Register / Vol. 83, No. 35 / Wednesday, February 21, 2018 / Rules and Regulations 7399 

challenge whether an entity’s operation 

is ‘‘non-common carrier’’ or ‘‘private, 

internal communications.’’ Elimination 

of the § 20.9(a)(14) process thus neither 

materially affects the opportunity for 

interested parties to challenge an 

entity’s claim of private status, nor 

alters the distribution of the burden of 

proof in adjudicating such a challenge 

(i.e., a party challenging a licensee’s 

claim of private status bears the burden 

of presenting sufficient allegations of 

fact to overcome the presumptive 

validity of that claim). Similarly, the 

exemplary factors for determining 

whether a service is the ‘‘functional 

equivalent’’ of CMRS, discussed in the 

CMRS Second Report and Order, remain 

probative in potential challenges, even 

if they are no longer memorialized in 

the Commission’s rules. Nonetheless, 

given concerns raised by commenters, 

and for ease of future reference for 

parties seeking to rely on them as 

illustrative examples, the Commission 

moves the ‘‘functional equivalent’’ 

exemplary factors to the definition of 

CMRS in § 20.3 and slightly revise the 

rule to indicate that reliance on these 

examples is permissible but not 

required. Finally, nothing in this action 

alters the Commission’s authority, 

independent of § 20.9, to take 

enforcement action against a licensee 

that tries to avoid CMRS regulation by 

misrepresenting that its service is or 

will be operated on a ‘‘non-common 

carrier’’ or ‘‘private, internal 

communications’’ basis. 

21. Elimination of § 20.7. Most 

commenters do not address the 

Commission’s proposal to remove 

§ 20.7, which lists certain services in 

various Commission rules parts that 

meet the statutory definition of ‘‘mobile 

services.’’ T-Mobile is the only party 

that raises a concern with removal of a 

specific subpart of the rule, § 20.7(h). 

Section 20.7(h) includes within the list 

of mobile services ‘‘[u]nlicensed 

services meeting the definition of 

[CMRS] in § 20.3, such as the resale of 

[CMRS], but excluding unlicensed radio 

frequency devices under part 15 of this 

chapter (including unlicensed personal 

communications service devices).’’ TMobile argues that this language 

represents an intentional decision by 

the Commission to exclude part 15 

unlicensed services from the definition 

of ‘‘mobile service’’ in § 20.7. T-Mobile 

asks the Commission to either preserve 

§ 20.7(h) or incorporate its wording into 

§ 20.3. 

22. The Commission eliminates 

§ 20.7, which provides an outdated and 

incomplete list of some, but not all, 

services that meet the definition of 

‘‘mobile service’’ as used in the Act. 

This approach is consistent with the 

Commission’s elimination of § 20.9, in 

favor of relying instead on the definition 

of CMRS in § 20.3. As is the case with 

respect to the definition of CMRS, § 20.3 

clearly articulates the definition of 

‘‘mobile service,’’ consistent with the 

statutory definition. Elimination of 

§ 20.7 will thus not affect the 

Commission’s understanding or 

application of the term ‘‘mobile service’’ 

in the Act or under the Commission’s 

rules. 

23. Regarding the concern raised by TMobile about the regulatory 

categorization of part 15 unlicensed 

devices, the Commission found, in the 

CMRS Second Report and Order, that 

the definition of ‘‘mobile service’’ in the 

1993 OBRA includes ‘‘service for which 

a license is required in a personal 

communications service,’’ and therefore 

concluded that ‘‘mobile service’’ does 

not include unlicensed PCS and part 15 

devices. This action should in no way 

be construed as affecting the 

Commission’s findings in the CMRS 

Second Report and Order. Nonetheless, 

to ensure that there is no confusion on 

this issue, the Commission revises 

§ 20.3 to make clear that the term 

‘‘mobile service’’ explicitly excludes 

unlicensed radio frequency devices 

under part 15 of the Commission’s rules. 

24. Edits to parts 1, 4, and 9 of the 

Rules. Consistent with the 

Commission’s proposal in the NPRM 

and its efforts to streamline its rules, the 

Commission makes corrective edits to 

rule parts that errantly cross-reference 

§ 20.9 for the definition of CMRS, rather 

than cross-referencing the definition in 

§ 20.3, the definitions section for part 

20. Specifically, § 4.3(f) of the rules, 

which defines ‘‘wireless service 

providers’’ that are subject to outage 

reporting requirements, cross-references 

section 20.9 for a definition of CMRS. 

Section 9.3, related to the provision of 

interconnected VoIP services, similarly 

defines CMRS as ‘‘Commercial Mobile 

Radio Service, as defined in § 20.9 of 

this chapter.’’ The Commission amends 

both sections to remove the reference to 

§ 20.9 and refer instead to the definition 

of CMRS in § 20.3. 

25. CTIA requested changes to 

§ 1.907’s definitions of Private Wireless 

Services and Wireless 

Telecommunications Services to remove 

cross-references to other CFR rule parts 

that appear in those definitions. The 

CMRS proceeding has focused on the 

treatment of services defined and 

regulated as PMRS and CMRS under 

part 20 of the Commission’s rules and 

cross-referenced in several other related 

rules. While the definitions for which 

CTIA seeks modification are not 

coextensive with the definitions of 

PMRS and CMRS, the Commission 

sought broad comment in the CMRS 

proceeding on whether to eliminate the 

itemized, service-by-service approach to 

classifying wireless services that the 

Commission had superimposed over the 

statutory definitions, in favor of an 

approach that enabled applicants and 

licensees themselves to classify—under 

straightforward statutory definitions— 

what type of permitted flexible 

operations they had chosen to provide 

(rather than forcing them to proceed 

under a categorical framework that 

requires parties to seek an exception 

from the Commission when their choice 

of flexible operations will not line up 

with the correct statutorily-defined 

wireless classification that the rules are 

forcing them into). CTIA’s proposal for 

eliminating the categorical list of 

services classified as Wireless 

Telecommunications Services under the 

§ 1.907 definitions is virtually 

indistinguishable in these regards from 

the proposal the Commission made for 

CMRS, as the elimination of these 

categories from the Wireless 

Telecommunications Service definition 

will remove the needless inefficiency 

and reduce the rigidity of such a 

categorical approach, while leaving 

intact in the rule the critical 

classification benchmark—i.e., the 

definition of ‘‘telecommunications 

service’’ in section 3 of the Act—on 

which applicants and licensees can rely 

in choosing to provide Wireless 

Telecommunications Service. In 

contrast, the Commission does not, in 

the CMRS proceeding, modify the 

§ 1.907 definition of Private Wireless 

Service because this aspect of CTIA’s 

proposals addresses a definition in the 

rules that does not expressly invoke a 

statutory definition to provide a ready 

benchmark that can replace the 

categories of service that are listed 

categorically as comprising (and 

defining) the Private Wireless Services. 

Accordingly, CTIA’s proposal for this 

definition, whatever the merits, is not 

part of the regulatory changes that the 

Commission envisioned in this 

proceeding, and the Commission 

therefore denies this aspect of CTIA’s 

request without prejudice. 

26. Regulatory Status on FCC Forms. 

In the NPRM, the Commission requested 

comment on whether it would need to 

make changes to any of its forms if it 

were to eliminate § 20.9. For example, it 

noted that Form 603 (used for 

assignments and transfers of control) 

does not include an option for an 

assignee/transferee to indicate a 

different regulatory status for a license 


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7400 Federal Register / Vol. 83, No. 35 / Wednesday, February 21, 2018 / Rules and Regulations 

at issue in the proposed transaction, and 

suggested that, if the Commission 

eliminated § 20.9, it would need to 

revise Form 603 to permit such a 

designation. The Commission also 

sought comment on whether the 

regulatory status options provided on 

Form 601 and other forms—‘‘common 

carrier,’’ ‘‘non-common-carrier,’’ and 

‘‘private, internal communications’’— 

were confusing, and asked whether they 

should be replaced with or altered to 

include the CMRS/PMRS terminology. 

27. Only one party addresses the 

NPRM questions about forms, 

recommending that the Commission 

retain the three regulatory status 

categories currently used on Form 601 

and other forms—‘‘common carrier,’’ 

‘‘non-common carrier,’’ and ‘‘private/ 

internal communications.’’ The 

Commission decides not to replace the 

current form designations of ‘‘common 

carrier,’’ ‘‘non-common carrier,’’ and 

‘‘private, internal communications’’ 

with the alternatives of CMRS or PMRS. 

The Commission concludes that the 

change would create a less detailed 

description of regulatory status for 

certain licensees. Further, the current 

designations, in combination with a 

filer’s responses to form questions 

regarding the type of radio service being 

provided, are used by the Commission 

to determine, among other things, 

regulatory fees and which filings may 

need to go on an accepted for filing 

public notice. The Commission also 

declines to revise Form 601 or other 

forms to add an additional question 

asking an entity to distinguish whether 

it is providing, or plans to provide, 

‘‘CMRS’’ and/or ‘‘PMRS.’’ Adding this 

to the Commission’s forms and to ULS 

would be costly, without providing the 

Commission with additional useful 

information beyond what it already 

obtains from the combination of 

questions about regulatory status and 

type of radio service being provided. 

28. The current ULS Form 601 

permits an applicant to select the status 

of its radio service operation as 

‘‘common carrier,’’ ‘‘non-common 

carrier,’’ or ‘‘private, internal 

communications,’’ or some 

combination, to the extent applicable. 

This status must be selected when an 

applicant first files for an authorization. 

Under this action, applicants in services 

previously covered by § 20.9 will have 

the same flexibility as other licensees 

that utilize ULS to select the appropriate 

status or statuses, without additional 

regulatory requirements. A licensee also 

can use Form 601 to modify its 

regulatory status to add an additional 

status or change the status under which 

it was originally licensed. Applications 

on Form 601 to modify regulatory status 

are processed as a minor modification to 

the subject authorization. 

29. The current Form 603 does not 

permit a proposed assignee or transferee 

to make any selection regarding 

regulatory status. Rather, the proposed 

assignee or transferee receives the 

license with the regulatory status as 

designated by the assignor or the pretransfer licensee. Because a change to 

Form 603 would require corresponding 

changes to ULS, including costly 

reprogramming and additional time to 

implement, the Commission directs staff 

to explore an interim process for 

permitting a proposed assignee or 

transferee to modify the regulatory 

status for a license as part of the 

assignment or transfer of control 

application, perhaps by permitting the 

applicants to provide in an exhibit a 

request for change. In the interim and as 

can be done under the Commission’s 

current processes, assignees or 

transferees will be able to file a 

modification on Form 601 to change the 

regulatory status of a license obtained 

pursuant to a transaction after the 

transaction is consummated. 

30. The current Form 608, Item 9, 

permits a proposed spectrum lessee to 

indicate at the time of filing an initial 

spectrum leasing application what 

regulatory status or statuses are 

applicable to its planned operations on 

the leased spectrum. Once a spectrum 

leasing arrangement is granted or 

accepted, as applicable, the spectrum 

lessee may file a lease modification on 

Form 608 to indicate a change in the 

regulatory status as application to its 

operations under the spectrum leasing 

arrangement. 

31. Other Issues. Several commenters 

raise issues that were not discussed in 

the NPRM. For example, MSI and NPPD 

highlight several part 22 rules that they 

argue are ripe for reform, and ask the 

Commission to initiate a separate 

rulemaking to review these and other 

part 22 rules. Those issues are beyond 

the scope of the CMRS proceeding and 

the Commission does not address them 

here. 

I. Procedural Matters 

A. Paperwork Reduction Act Analysis 

32. This document does not contain 

new or modified information collection 

requirements subject to the Paperwork 

Reduction Act of 1995 (PRA), Public 

Law 104–13. In addition, therefore, it 

does not contain any new or modified 

information collection burden for small 

business concerns with fewer than 25 

employees, pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

B. Congressional Review Act 

33. The Commission will send a copy 

of the Order to Congress and the 

Government Accountability Office 

pursuant to the Congressional Review 

Act. 

C. Final Regulatory Flexibility 

Certification 

34. The Regulatory Flexibility Act of 

1980, as amended (RFA), requires that 

an agency prepare a regulatory 

flexibility analysis for notice and 

comment rulemakings, unless the 

agency certifies that ‘‘the rule will not, 

if promulgated, have a significant 

economic impact on a substantial 

number of small entities.’’ The Final 

Regulatory Flexibility Certification of 

the possible economic impact of the rule 

changes contained in the Report and 

Order was attached as Appendix B of 

the Order. 

D. Contact Information 

35. For further information regarding 

the Order, contact Kathy Harris at (202) 

418–0609, Kathy.Harris@fcc.gov, or 

Thomas Reed at (202) 418–0531, 

Thomas.Reed@fcc.gov. 

II. Ordering Clauses 

36. Accordingly, it is ordered, 

pursuant to sections 1, 2, 4(i), 4(j), 7, 

301, 303, 307, 308, 309, and 332 of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 151, 152, 154(i), 

154(j), 157, 301, 303, 307, 308, 309, and 

332, that this report and order in WT 

Docket No. 16–240 is adopted. 

37. It is further ordered that the report 

and order shall be effective 30 days after 

publication of a summary of the report 

and order in the Federal Register. 

38. It is further ordered that part 1 of 

the Commission’s rules, 47 CFR part 1, 

part 4 of the Commission’s rules, 47 

CFR part 4, part 9 of the Commission’s 

rules, 47 CFR part 9, and part 20 of the 

Commission’s rules, 47 CFR part 20, are 

amended as specified in Appendix A of 

the Order, effective 30 days after 

publication in the Federal Register. 

39. It is further ordered that, pursuant 

to Section 801(a)(1)(A) of the 

Congressional Review Act, 5 U.S.C. 

801(a)(1)(A), the Commission shall send 

a copy of the report and order to 

Congress and to the Government 

Accountability Office. 

40. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

the report and order, including the Final 

Regulatory Flexibility Certification, to 


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Federal Register / Vol. 83, No. 35 / Wednesday, February 21, 2018 / Rules and Regulations 7401 

the Chief Counsel for Advocacy of the 

Small Business Administration. 

41. It is further ordered that, if no 

petitions for reconsideration or 

applications for review are timely filed, 

this proceeding shall be terminated and 

the docket closed. 

List of Subjects in 47 CFR Parts 1, 4, 9, 

and 20 

Commercial mobile services, 

Disruptions to communications, 

Interconnected voice over internet 

protocol services, Practice and 

procedure. 

Federal Communications Commission. 

Katura Jackson, 

Federal Register Liaison Officer, Office of the 

Secretary. 

Final rules 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR parts 1, 4, 

9, and 20 as follows: 

PART 1—PRACTICE AND 

PROCEDURE 

■ 1. The authority citation of part 1 is 

revised to read as follows: 

Authority: 47 U.S.C. 151, 154(i), 155, 157, 

160, 201, 225, 227, 303, 309, 332, 1403, 1404, 

1451, 1452, and 1455, unless otherwise 

noted. 

■ 2. In § 1.907, revise the definition for 

‘‘Wireless Telecommunications 

Services’’ to read as follows: 

§ 1.907 Definitions. 

* * * * * 

Wireless Telecommunications 

Services. Wireless Radio Services, 

whether fixed or mobile, that meet the 

definition of ‘‘telecommunications 

service’’ as defined by 47 U.S.C. 153, as 

amended, and are therefore subject to 

regulation on a common carrier basis. 

PART 4—DISRUPTIONS TO 

COMMUNICATIONS 

■ 3. The authority citation of part 4 

continues to read as follows: 

Authority: Sections 1, 4(i), 4(j), 4(o), 

251(e)(3), 254, 301, 303(b), 303(g), 303(r), 

307, 309(a), 309(j), 316, 332, 403, 615a–1, and 

615c of Pub. L. 73–416, 48 Stat. 1064, as 

amended, and section 706 of Pub. L. 104– 

104, 110 Stat. 56; 47 U.S.C. 151, 154(i)–(j) & 

(o), 251(e)(3), 254, 301, 303(b), 303(g), 303(r), 

307, 309(a), 309(j), 316, 332, 403, 615a–1, 

615c, and 1302, unless otherwise noted. 

■ 4. In § 4.3, revise paragraph (f) to read 

as follows: 

§ 4.3 Communications providers covered 

by the requirements of this part. 

* * * * * 

(f) Wireless service providers include 

Commercial Mobile Radio Service 

communications providers that use 

cellular architecture and CMRS paging 

providers. See § 20.3 of this chapter for 

the definition of Commercial Mobile 

Radio Service. Also included are 

affiliated and non-affiliated entities that 

maintain or provide communications 

networks or services used by the 

provider in offering such 

communications. 

* * * * * 

PART 9—INTERCONNECTED VOICE 

OVER INTERNET PROTOCOL 

SERVICES 

■ 5. The authority citation of part 9 

continues to read as follows: 

Authority: 47 U.S.C. 151, 154(i)–(j), 251(e), 

303(r), and 615a–1 unless otherwise noted. 

■ 6. In § 9.3, revise the definition for 

‘‘CMRS’’ to read as follows: 

§ 9.3 Definitions. 

* * * * * 

CMRS. Commercial Mobile Radio 

Service, as defined in § 20.3 of this 

chapter. 

* * * * * 

PART 20—COMMERCIAL MOBILE 

SERVICES 

■ 7. The authority citation for of part 20 

continues to read as follows: 

Authority: 47 U.S.C. Sections 151, 152(a), 

154(i), 157, 160, 201, 214, 222, 251(e), 301, 

302, 303(b), 303(r), 307, 307(a), 309, 309(j)(3), 

316, 316(a), 332, 610, 615, 615a, 615b, 615c 

unless otherwise noted. 

■ 8. In § 20.3: 

■ a. In the definition for ‘‘Commercial 

mobile radio service’’: 

■ i. In paragraph (b), remove ‘‘of this 

section’’ and add ‘‘of this definition’’ in 

its place; and 

■ ii. Add paragraphs (c) and (d); and 

■ b. Revise the introductory text of the 

definition for ‘‘Private Mobile Radio 

Service’’. 

The additions and revision read as 

follows: 

§ 20.3 Definitions. 

* * * * * 

Commercial mobile radio service. 

* * * 

(c) A variety of factors may be 

evaluated to make a determination 

whether the mobile service in question 

is the functional equivalent of a 

commercial mobile radio service, 

including: Consumer demand for the 

service to determine whether the service 

is closely substitutable for a commercial 

mobile radio service; whether changes 

in price for the service under 

examination, or for the comparable 

commercial mobile radio service, would 

prompt customers to change from one 

service to the other; and market research 

information identifying the targeted 

market for the service under review. 

(d) Unlicensed radio frequency 

devices under part 15 of this chapter are 

excluded from this definition of 

Commercial mobile radio service. 

* * * * * 

Private mobile radio service. A mobile 

service that meets neither the paragraph 

(a) nor paragraph (b) definitions of 

commercial mobile radio service set 

forth in this section. A mobile service 

that does not meet the paragraph (a) 

definition of commercial mobile radio 

service in this section is presumed to be 

a private mobile radio service. Private 

mobile radio service includes the 

following: 

* * * * * 

§ 20.7 [Removed and Reserved] 

■ 9. Section 20.7 is removed and 

reserved. 

§ 20.9 [Removed and Reserved] 

■ 10. Section 20.9 is removed and 

reserved. 

[FR Doc. 2018–00919 Filed 2–20–18; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

48 CFR Parts 816, 828, and 852 

RIN 2900–AP82 

Revise and Streamline VA Acquisition 

Regulation To Adhere to Federal 

Acquisition Regulation Principles 

(VAAR Case 2014–V002) 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) adopts as final the 

proposed amendments to VA 

regulations. This rulemaking prescribes 

five new Economic Price Adjustment 

clauses for firm-fixed-price contracts, 

identifies VA’s task-order and deliveryorder ombudsman, clarifies the nature 

and use of consignment agreements, 

adds policy coverage on bond premium 

adjustments and insurance under fixedprice contracts, and provides for 

indemnification of contractors for 

medical research or development 

contracts. This document adopts the 

proposed rule published on March 13, 

2017, as a final rule with five technical 

non-substantive changes. 


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