[Federal Register Volume 60, Number 11 (Wednesday, January 18, 1995)]
[Rules and Regulations]
[Pages 3555-3557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1218]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 22

[CC Docket No. 92-115]


Public Mobile Services

agency: Federal Communications Commission.

action: Final rule; suspension of effectiveness.

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summary: On September 9, 1994, the Commission release a Report and 
Order revising its Part 22 Rules governing the Public Mobile Services. 
The instant Order responds to requests for stay of certain of these 
rules, which went into effect on January 1, 1995. Specifically, the 
Order suspends the effective date of certain Part 22 Rules affecting 
the processing of 931 MHz paging applications, stays a new policy 
prohibiting two different licensees from sharing the same transmitter, 
and denies a request for stay of a new rule designed [[Page 3556]] to 
prevent fraudulent use of cellular electronic serial numbers. The 
intent of the foregoing suspension and stay is to achieve the 
objectives of updating, streamlining, and expediting the procedures in 
its licensing process without the subsequent consequences of delay and 
operational, administrative burden on service providers and the 
Commission.

effective date: December 30, 1994.

for further information contact: B.C. ``Jay'' Jackson, Jr., R. Barthen 
Gorman, Commercial Radio Division; and David H. Siehl, Policy Division, 
Wireless Telecommunications Bureau, (202) 418-1310.

supplementary information: This is a synopsis of the Commission's Order 
in CC Docket No. 92-115, FCC 94-357, adopted December 30, 1994, and 
released January 10, 1995.
    The complete text of this Order is available for inspection and 
copying during normal business hours in the FCC Dockets Branch (Room 
230), 1919 M Street, NW., Washington, DC, and also may be purchased 
from the Commission's copy contractor, International Transcription 
Service, at (202) 857-3800, 2100 M Street, NW., Suite 140, Washington, 
DC 20037.

Synopsis of Order

    1. The Commission recently adopted a Report and Order in this 
docket, completely revising Part 22 of its Rules and providing for the 
new Rules to go into effect on January 1, 1995. Report and Order, CC 
Docket No. 92-115, 9 FCC Rcd 6513 (1994), 59 FR 59502, Nov. 17, 1994 
(Part 22 Order). The Commission has received stay requests from the 
Personal Communications Industry Association (PCIA) and the Mobile and 
Personal Communications 800 Section of the Telecommunications Industry 
Association (TIA) with respect to the effective date of certain aspects 
of the Part 22 Order. PCIA requests that the Commission stay 
implementation of the Part 22 Order with respect to (1) new application 
processing rules for 931 MHz paging, and (2) its policy prohibiting two 
Part 22 licensees from sharing a single transmitter. TIA requests that 
the Commission stay implementation of Section 22.919 of its Rules, 
which conditions type-acceptance of new cellular telephone equipment on 
use of electronic serial numbers (ESNs) that cannot be altered once 
they are set by the manufacturer.

931 MHz Paging Rules

    2. In the Part 22 Order, the Commission adopted new procedures for 
processing of 931 MHz paging applications, based on frequency-specific 
applications and use of competitive bidding to select licensees in the 
event of mutually exclusive applications. The Commission further stated 
that all 931 MHz applicants with applications pending at the time the 
new rules went into effect would be given 60 days to amend their 
applications in accordance with these procedures.
    3. The Commission has decided not to address the merits of PCIA's 
petition at this time, but instead will temporarily suspend 
implementation of the new 931 MHz application procedures on its own 
motion. This temporary suspension of the new procedures arises directly 
from the discussion of 931 MHz paging in the Part 22 Order. In the Part 
22 Order, the Commission observed that certain paging applications that 
had previously been granted, denied, or dismissed under the old rules 
remained before it in the form of petitions for reconsideration and 
applications for review. The Commission concluded that these cases 
should be decided, to the extent possible, under its existing paging 
rules before the effective date of the new rules. The Commission 
further stated that if all pending petitions relating to 931 MHz 
applications were not acted upon by January 1,1995, it would stay the 
effect of new Section 22.541 of our Rules concerning 931 MHz 
applications and also stay the 60-day amendment procedure for all 
pending 931 MHz applications until the cases were resolved by order.
    4. The Commission has determined that additional time is required 
to resolve certain of these cases, and it is, therefore, suspending 
Section 22.541 of the Rules and the 60-day amendment procedure for 
pending 931 MHz applications until further notice. This order also 
suspends implementation of Section 22.131, which superseded Section 
22.541 as of January 2, 1995, insofar as it affects 931 MHz paging 
applications. See Third Report and Order. Implementation of Sections 
3(n) and 332 of the Communications Act, Regulatory Treatment of Mobile 
Services, GN Docket No. 93-252, FCC 94-212, adopted August 9, 1994, 
released September 23, 1994; 59 FR 59945, Nov. 21, 1994. Consequently, 
the Commission concludes that action on PCIA's request to stay the 
effective date of the 931 MHz application processing rules is 
unnecessary for the time being, and therefore, is deferring 
consideration of PCIA's petition until further notice.

Sharing of Transmitters

    5. In the Part 22 Order, the Commission stated that as a matter of 
policy, it intended to prohibit two or more Part 22 licensees from 
sharing a single transmitter. The concern in establishing this policy 
was that shared use of the same transmitter by two different licensees 
could raise questions regarding the control of and responsibility for 
the transmitter. PCIA requests a stay of this policy on the grounds 
that it is inconsistent with the past Commission practice and that 
implementation of the policy would cause irreparable harm to existing 
licensees and the public.
    6. The Commission concludes that a stay is justified in this case, 
because it has allowed dual licensing of Part 22 transmitters in the 
past, and continues to allow dual licensing in the private services. 
The Commission is concerned that reversing this policy with respect to 
Part 22 services could result in inconsistent treatment of similar 
services, in violation of the principle of regulatory parity. Among 
other reasons, the Commission also concludes that a stay of the new 
policy will not cause harm to other parties to the proceeding or the 
public. Therefore, the Commission concludes that implementation of its 
policy against dual licensing of transmitters should be stayed pending 
reconsideration.

Cellular Electronic Serial Numbers

    7. To combat the problem of cellular fraud, the Commission adopted 
a new rule in the Part 22 Order requiring cellular telephone 
manufacturers to install unalterable electronic serial numbers (ESNs) 
in all new cellular telephone equipment for which type-acceptance is 
sought after January 1, 1995. The new Sec. 22.919(c) of the Rules 
provides that the ESN must be factory set and must not be ``alterable, 
transferable, removable or otherwise able to be manipulated.'' The 
purpose of this requirement is to prevent the reprogramming of cellular 
telephones with unauthorized or ``cloned'' ESNs.
    8. TIA requests a stay of Sec. 22.919(c), and argues that requiring 
the use of unalterable or ``hardened'' ESNs will impose significant new 
costs on manufacturers and will cause customer dissatisfaction by 
preventing manufacturer's authorized agents from making routine repairs 
and upgrades of cellular equipment in the field that involve changing 
the ESN. TIA also contends that the requirement is effective in 
combating fraud. The Cellular Telecommunications Industry Association 
(CTIA) opposed TIA's motion for stay.
    9. On review of the pleadings, the Commission concludes that TIA 
has not met the legal standard for granting a [[Page 3557]] stay. 
First, without prejudging a separate petition for reconsideration filed 
by TIA, the Commission concludes that TIA has not shown that the 
petition is likely to prevail on the merits. In particular, TIA's 
argument that the Commission should adopt anti-fraud rules based on 
authentication procedures does not require abandonment of ESN 
protection rules; instead, if TIA's alternative methodology proves 
effective, it offers a potentially complementary level of protection 
against fraud rather than a substitute for ESN regulation.
    10. Second, the Commission is not persuaded that either 
manufacturers or cellular customers will be irreparably harmed if the 
stay motion is not granted. The new ESN rule applies only to new 
equipment receiving type acceptance after January 1, 1995. Thus, 
manufacturers may continue to produce equipment under previous type-
acceptances without being required to install hardened ESNs. Finally, 
the cost of allowing ESN ``cloning'' to go virtually unchecked is far 
greater than the cost of implementing the new rule. The Commission 
therefore concludes that TIA's motion for stay should be denied.

Ordering Clauses

    11. Accordingly, it is ordered that the effective date of new 
Section 22.541 of our Rules, the application of new Section 22.131 of 
our Rules insofar as it applies to 931 MHz paging applications, and the 
60-day amendment procedure for all pending 931 MHz paging applications 
described in paragraph 98 of the Part 22 Order are stayed, effective as 
of the adoption date of this Order, until further notice.
    12. It is further ordered That action on the Petition for Partial 
Stay filed by the Personal Communications Industry Association on 
December 19, 1994, with respect to implementation of new 931 MHz 
processing rules is deferred until future notice.
    13. It is further ordered That the effective date of the policy 
prohibiting two licensees from sharing a single transmitter, as 
described in paragraph 71 of the Part 22 Order, is stayed, effective as 
of the adoption date of this order, until further notice.
    14. It is further ordered That the Motion for Stay filed by the 
Mobile and Personal Communications 800 Section of the 
Telecommunications Industry Association on December 19, 1994, is 
denied.

List of Subjects in 47 CFR Part 22

    Communications common carriers, Radio, Reporting and recordkeeping 
requirements.

Federal Communications Commission.
William F. Caton,
Acting Secretary.

    For the reasons set forth in the preamble, 47 CFR part 22 is 
amended as follows:

PART 22--PUBLIC MOBILE SERVICES

    1. The authority citation for part 22 continues to read as follows:

    Authority: 47 U.S.C. 154, 303, unless otherwise noted.

    2. Section 22.541 is stayed until further notice.

[FR Doc. 95-1218 Filed 1-13-95; 8:45 am]
BILLING CODE 6712-01-M