[Federal Register Volume 87, Number 127 (Tuesday, July 5, 2022)]
[Rules and Regulations]
[Pages 39770-39790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14155]



[[Page 39770]]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[PS Docket No. 20-187; FCC 22-36; FR ID 92978]


Review of Rules and Requirements for Priority Services

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) adopts changes to its priority services rules to reflect 
today's marketplace and governance framework and to explicitly 
authorize the prioritization of IP-based technologies. Specifically, it 
removes outdated language that may cause confusion or otherwise impede 
the use of IP-based technologies to support the provision of priority 
services for voice, data, and video communications. The Commission also 
amends the rules to reflect the current framework for administration of 
priority services by the Department of Homeland Security while 
eliminating burdensome and unnecessary requirements on service 
providers.

DATES: The final rule is effective August 4, 2022.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Chris Smeenk, Attorney Advisor, Operations and 
Emergency Management Division, Public Safety and Homeland Security 
Bureau, at (202) 418-1630 or <a href="/cdn-cgi/l/email-protection#4f0c273d263c611c222a2a21240f292c2c61282039"><span class="__cf_email__" data-cfemail="eead869c879dc0bd838b8b8085ae888d8dc0898198">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is summary of the Commission's Report 
and Order, PS Docket No. 20-187; FCC 22-36, adopted on May 19, 2022, 
and released on May 20, 2022. The full text of this document is 
available at https://www.fcc.gov/document/fcc-modernizes-and-improves-its-priority-services-rules-0. To request this document in accessible 
formats for people with disabilities (e.g., Braille, large print, 
electronic files, audio format, etc.) or to request reasonable 
accommodations (e.g., accessible format documents, sign language 
interpreters, CART, etc.), send an email to <a href="/cdn-cgi/l/email-protection#791f1a1a4c494d391f1a1a571e160f"><span class="__cf_email__" data-cfemail="a8cecbcb9d989ce8cecbcb86cfc7de">[email protected]</span></a> or call the 
FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 
(voice), (202) 418-0432 (TTY).
    Paperwork Reduction Act: This document does not contain new 
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).
    Congressional Review Act: The Commission believes, and the 
Administrator of the Office of Information and Regulatory Affairs, OMB, 
concurs that these rules are non-major. As such, the rules are non-
major under the Congressional Review Act, U.S.C. 804(2). The Commission 
will send a copy of this Report and Order to Congress and the 
Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

Synopsis

I. Introduction

    1. In this Report and Order, we update and streamline the 
Commission's priority services rules. These rules enable National 
Security and Emergency Preparedness (NSEP) personnel to obtain 
prioritized connectivity during emergency situations by authorizing 
prioritized provisioning and restoration of communications facilities 
and prioritized network access for wireless communications. The 
priority services programs are used to ``maintain a state of readiness 
[and] to respond to and manage any event or crisis . . . [that] 
degrades or threatens the NSEP posture of the United States.''
    2. The priority services rules have long been in need of an update 
to account for changes in technology. The Commission's current rules 
date back to the establishment of the Telecommunications Service 
Priority (TSP) System in 1988 and the creation of the Priority Access 
Service (PAS), more commonly referred to as Wireless Priority Service 
(WPS), in 2000. These rules were originally developed when 
communications networks were primarily based on circuit-switched 
technologies. As such, the rules do not address the advanced 
capabilities of next-generation communications technologies that 
support data and voice services, or the ability of users at different 
priority levels to share network capacity and resources.
    3. In this Report and Order, we update our priority services rules 
to reflect today's marketplace and governance framework and to 
authorize explicitly the prioritization of next-generation technology. 
Specifically, we remove outdated language that may cause confusion or 
otherwise impede the use of next-generation technologies to support the 
provision of priority services for voice, data, and video 
communications. We also amend the rules to reflect the current 
framework for administration of priority services by the Department of 
Homeland Security (DHS) while eliminating burdensome and unnecessary 
requirements on service providers. These changes will reduce regulatory 
burdens and make our rules flexible enough to accommodate changing 
administrative requirements and technological advances related to the 
priority services programs.

II. Background

    4. For years, NSEP personnel have had access to priority services 
programs that support national command, control, and communications by 
providing prioritized connectivity over commercial communications 
infrastructure during national emergencies. Three specific programs 
support prioritized connectivity for NSEP users of telecommunications 
services: (1) TSP, (2) WPS, and (3) Government Emergency 
Telecommunications Service (GETS), which provides prioritization 
through the Public Switched Telephone Network. All three programs are 
administered by DHS's Cybersecurity and Infrastructure Security Agency 
(CISA). However, the Commission's rules only apply to TSP and WPS, 
while GETS operates solely via contractual arrangements between DHS and 
service providers.
    5. TSP. The Commission's TSP rules require certain service 
providers to prioritize the provisioning and restoration of 
communications facilities to ``ensure effective NSEP telecommunication 
services.'' The TSP rules apply, on a mandatory basis, to common 
carrier services and ``services which are provided by government and/or 
non-common carriers and are interconnected to common carrier 
services.'' Service providers that are covered by the mandatory TSP 
rules must ``maintain and provision and, if disrupted, restore 
facilities and services'' in accordance with the prioritization levels 
outlined in the TSP rules. The Commission designed the TSP System to 
provide ``a means by which carriers may provide priority provisioning 
or restoration service to a user without violating the unreasonable 
preference prohibition of Title II of the Communications Act.'' The TSP 
System ``allows the assignment of priority levels to any NSEP service'' 
across three time periods, or stress conditions: (1) Peacetime/Crisis/
Mobilizations; (2) Attack/War; and (3) Post-Attack/Recovery. There are 
more than 2,000 organizations enrolled in TSP (e.g.,

[[Page 39771]]

military bases, federal agencies, hospitals) covering approximately 
365,000 active circuits. Costs associated with TSP are governed by 
tariff or contract and TSP users may be responsible for one-time setup 
fees and monthly charges, in addition to the actual charges related to 
provisioning and restoration of the service. The Commission's TSP rules 
have not been substantively updated since they were initially adopted 
in 1988.
    6. WPS. The Commission's WPS rules permit, but do not require, 
commercial mobile radio service (CMRS) providers to offer mobile 
wireless priority services. If a service provider elects to offer WPS, 
it must comply with the Commission's WPS rules, which establish the 
following five priority levels (ordered from highest to lowest): (1) 
Executive Leadership and Policy Makers; (2) Disaster Response/Military 
Command and Control; (3) Public Health, Safety and Law Enforcement 
Command; (4) Public Services/Utilities and Public Welfare; and (5) 
Disaster Recovery. WPS is provided on an individual-device basis, with 
users initiating wireless priority calls by entering a specified 
feature code for each call in order to activate priority treatment for 
that call. WPS users are responsible for commercial wireless 
subscription and equipment costs. One of the driving forces behind the 
FCC's decision to codify WPS rules was a concern that, in the absence 
of such rules, a service provider's decision to give NSEP users 
priority treatment might be considered a violation of the Act's non-
discrimination provisions. There are more than 606,000 authorized WPS 
users across the U.S. and U.S. territories. The Commission's WPS rules 
have not been updated since they were initially adopted in 2000.
    7. Developments Since the Commission's Initial Adoption of the 
Priority Services Rules. Both the telecommunications marketplace and 
the administrative framework of the priority services programs have 
evolved since the Commission adopted its priority services rules. 
Consumers are increasingly moving away from legacy telephone services 
that rely on traditional time-division multiplexing technology, and 
toward internet Protocol (IP)-based and next-generation services. 
Incumbent local exchange carriers are increasingly retiring copper 
facilities and replacing them with fiber and wireless spectrum-based 
technology that provides greater capacity and flexibility to support 
advanced communications services. The Commission has actively supported 
the transition from legacy networks to next-generation networks, and it 
has taken measures to reduce regulatory barriers to this transition.
    8. While the transition from legacy network technology to IP-based 
technologies promises greater innovation, including for priority 
services programs, it may pose transitional challenges for NSEP 
communications that historically have relied on functionality found in 
legacy technologies. As carriers replace their legacy systems with new 
technologies and platforms, some of the features in priority services 
programs that were designed to be used on legacy systems will be more 
difficult and costly to maintain and ultimately could be rendered 
inoperable. The Government Accountability Office has observed that it 
is a ``challenge . . . that IP networks may not support existing 
telecommunications `priority' services, which allow key government and 
public-safety officials to communicate during times of crisis.'' 
Availability of priority services only on those traditional voice 
networks may hamper the ability of NSEP personnel to make effective use 
of cutting edge emergency response tools that rely on IP-supported data 
network availability.
    9. Federal Agency Administration/Oversight of Priority Services 
Programs. Three agencies are primarily responsible for the oversight 
and administration of priority services programs--DHS, the Executive 
Office of the President (EOP), and the FCC. DHS is responsible for 
``oversee[ing] the development, testing, implementation, and 
sustainment of NS/EP communications,'' including the priority services 
programs. DHS also maintains a Joint Program Office that is responsible 
for ``coordination of programs that support NS/EP missions, priorities, 
goals, and policy.'' DHS assists organizations with the enrollment 
process and issues TSP authorization codes. DHS also manages WPS 
through contract and reimbursement mechanisms. EOP is responsible for 
``[p]olicy coordination, guidance, dispute resolution, and periodic in-
progress reviews'' of NSEP telecommunications functions. Within EOP, 
the Office of Science and Technology Policy ``advise[s] the President 
on prioritization of radio spectrum and wired communications that 
support NS/EP functions'' and ``issue[s] an annual memorandum . . . 
highlighting national priorities for . . . analyses, studies, research, 
and development regarding NS/EP communications.'' The FCC, through the 
Public Safety and Homeland Security Bureau, works with DHS to ensure 
the priority services programs operate effectively and efficiently. The 
Commission supports DHS in the ``operation and restoration of critical 
communications systems and services'' by providing information on 
communications infrastructure, service outages, and restoration.
    10. Notice of Proposed Rulemaking to Update the TSP and WPS Rules. 
In July 2020, the Commission adopted a Notice of Proposed Rulemaking 
(NPRM) proposing to modernize its priority services rules to cover 
priority treatment of voice, data, and video services for emergency 
personnel. The NPRM followed two petitions that the National 
Telecommunications and Information Administration (NTIA) filed on 
behalf of DHS--one in July 2018 and another in July 2019--which asked 
the Commission to update its TSP and WPS rules to reflect the current 
operations of the programs, incorporate the current Executive Branch 
governance structure, and address changes in technology and evolving 
user needs. The Bureau sought comment on both petitions via public 
notice.
    11. In the NPRM, the Commission proposed to update its priority 
services rules in several key respects. First, it proposed to extend 
the rules to cover data, video, and IP-based voice services for NSEP 
personnel. Second, it proposed to streamline the rules by removing 
outdated requirements that may impede the use of IP-based technologies. 
Third, it proposed to amend the rules to reflect current administrative 
responsibilities for the priority services programs, while eliminating 
burdensome and unnecessary administrative requirements. We received 
nine comments and two reply comments in response to the NPRM. In 
addition, CISA and the First Responder Network Authority (FirstNet) 
submitted ex parte comments in December 2020. The comments generally 
express support for updating our priority services rules as proposed in 
the NPRM to reflect today's marketplace and governance framework and to 
account for next-generation communications technology.

III. Discussion

    12. Today, we update and streamline our priority services rules, as 
proposed in the NPRM, with certain modifications. First, we adopt 
changes that apply to both TSP and WPS, such as updating the 
Commission's responsibilities for the priority services programs and 
clarifying that service providers are authorized to offer 
prioritization of next-generation services and technologies, including 
IP-based voice, data, and video communications.

[[Page 39772]]

Second, we adopt specific changes that apply only to TSP or WPS. In the 
TSP rules, we expand the list of services that are eligible for 
priority treatment and clarify the timing and level of effort required 
for provisioning and restoring service. In the WPS rules, we clarify 
the operation of the priority levels and expand both the types of 
services and the groups of users that are eligible for WPS. As 
explained below, we find that these changes will substantially increase 
the benefits to NSEP users and public safety while reducing the 
regulatory costs imposed on providers of priority services.

A. Changes to Priority Services Rules

    13. As noted above, the Commission's priority services rules have 
not been substantively updated since they were initially adopted, which 
has resulted in many provisions becoming outdated. In this section, we 
adopt proposals from the NPRM to modernize both our TSP and WPS rules 
to ensure they reflect current terminology, legal authorities, and 
administrative practices.
    14. Program Administration. We adopt the NPRM proposal to amend our 
rules to reflect current responsibilities for administering the 
priority services programs. The roles and responsibilities of some 
federal agencies have shifted since these rules were originally 
adopted. Likewise, we find that service providers and NSEP users, as 
well as other federal agencies, will benefit from a description of the 
Commission's own responsibilities for the programs. Accordingly, we 
adopt the NPRM proposal, with minor revisions, to add the following 
language to part 64, Appendix A and Appendix B:

    The FCC: Performs such functions as are required by law, 
including: (a) with respect to all entities licensed or regulated by 
the FCC: the extension of or change in network facilities; the 
discontinuance, reduction, or impairment of interstate services; the 
control of common carrier rates, charges, practices, and 
classifications; the construction, authorization, activation, 
deactivation, or closing of radio stations, services, and 
facilities; the assignment of radio frequencies to licensees; the 
investigation of violations of FCC rules; and the assessment of 
communications service provider emergency needs and resources; and 
(b) supports the continuous operation and restoration of critical 
communications systems and services by assisting the Secretary of 
Homeland Security with infrastructure damage assessment and 
restoration, and by providing the Secretary of Homeland Security 
with information collected by the FCC on communications 
infrastructure, service outages, and restoration, as appropriate.

    15. We also adopt the NPRM proposal to eliminate the provisions of 
part 64, Appendix A and Appendix B that describe the responsibilities 
of the Executive Office of the President (EOP) for the priority 
services programs. As noted in the NPRM, many of these responsibilities 
have since been transferred to other federal agencies, particularly 
DHS. In addition, while DHS and EOP have important responsibilities 
related to the priority services programs, we find it unnecessary to 
describe their functions in our rules.
    16. Commenters generally support removing portions of the rules 
that describe EOP's responsibilities because Executive Order 13618 
transferred most of EOP's functions to other federal agencies. CISA is 
the only commenter that opposes this change, contending that because 
EOP ``retains immense WPS-related responsibilities'' and has 
significant influence over TSP and WPS, the Commission's rules should 
continue to describe EOP's responsibilities. We agree with the majority 
of commenters that such description is unnecessary because EOP, DHS, 
and other Executive Branch agencies derive their legal authority from 
statutes and executive orders--not the Commission's rules. Thus, 
removing these references from our rules will have no legal or 
practical impact on the ability of these agencies to perform their 
functions. In addition, specific Executive Branch agency 
responsibilities for priority services could change in the future, in 
which case any codification of these responsibilities in our rules 
would become outdated and require further action by the Commission to 
update the rules.
    17. We also amend Appendix A and Appendix B to reflect the actual, 
current administrative responsibilities and functions for the TSP and 
WPS programs, consistent with our proposal in the NPRM. Commenters 
generally oppose including rules that would require service providers 
to comply with ``supplemental regulations and procedures'' established 
by DHS. For example, CTIA asserts that such language could allow DHS to 
retroactively alter contracts, which, in turn, could ``disrupt the 
contractual bargaining dynamic'' between DHS and service providers. 
Verizon and T-Mobile argue that ``without more explicit limitations on 
DHS's discretion,'' such requirements ``could risk undermining the 
Commission's intended light regulatory touch . . . as well as service 
providers' and DHS's flexibility to address novel technical issues.'' 
Commenters also argue that the proposed language could violate the 
Administrative Procedure Act by ``subjecting participating providers to 
changing obligations without an opportunity for notice and comment.''
    18. We adopt a dual approach in our modifications of the TSP and 
WPS rules that reflects differences in the underlying programs. We 
amend our TSP rules (Appendix A, section 5, as amended) by replacing 
the references to EOP with DHS and modifying the terminology to 
indicate that DHS issues ``policies'' rather than ``regulations'' for 
TSP. However, we delete the corresponding provision in the WPS rules 
(Appendix B, section 3). We believe this dual approach is appropriate 
given the differing administrative frameworks governing TSP and WPS. 
For TSP, DHS uses supplemental documents, including an Operations Guide 
and Service Vendor Handbook, to outline the specific processes and 
procedures that TSP providers must follow. However, DHS does not use 
these supplemental documents for WPS, but rather, outlines specific 
policies and procedures in its contractual arrangements with service 
providers.
    19. We do not agree with commenters who contend that the updated 
TSP rule would undermine the flexibility of service providers and DHS 
to address novel issues. The underlying rule has existed since the TSP 
rules were initially adopted and there is no indication in the record 
that it has led to imposition of unreasonable requirements on service 
providers or otherwise negatively impacted the program. Moreover, the 
rule only obligates TSP users and service providers to comply with DHS 
policies and procedures that are ``consistent with'' Appendix A. In the 
unlikely event that DHS were to issue policies and procedures that are 
inconsistent with Appendix A, the rule does not obligate TSP users to 
comply with them. Similarly, we do not believe the amended rule 
violates the APA because (1) the DHS policies and procedures are 
largely administrative in nature; and (2) if DHS were to issue 
substantive rules without notice and comment, our rule does not 
constrain TSP participants from challenging such rules on APA grounds.
    20. Terminology. Consistent with our expansion of the priority 
services rules to encompass IP-based services, discussed below, we 
adopt our proposal to amend Appendix A and Appendix B, where 
appropriate, to include these new services and technologies. First, we 
replace certain references to ``telecommunications services'' with 
``National Security Emergency Preparedness (NSEP) services,'' a

[[Page 39773]]

broader term that we define to include both telecommunications services 
and all IP-based services. We adopt the NPRM proposal to amend the 
definition of ``NSEP services'' in Appendix A as follows:

    Telecommunications services or internet Protocol-based services 
which are used to maintain a state of readiness or to respond to and 
manage any event or crisis (local, national, or international), 
which causes or could cause injury or harm to the population, damage 
to or loss of property, or degrades or threatens the NSEP posture of 
the United States. These services fall into two specific categories, 
Emergency NSEP and Essential NSEP, and are assigned priority levels 
pursuant to section 8 of this appendix.

    We also adopt the same definition for ``NSEP services'' in Appendix 
B, except for the last sentence, which is specific to TSP. Further, we 
define the phrase ``internet Protocol (IP)-based services,'' as used in 
the definition of ``NSEP services'' as: ``services and applications 
that feature digital communications capabilities and which generally 
use the internet Protocol.'' These changes will ensure that the 
Commission's rules account for current service offerings and other 
technologies that may someday qualify for priority treatment. As 
discussed more fully below, commenters support updating our priority 
services rules to expand the scope of the services that are eligible 
for priority treatment.

B. Changes to Telecommunications Service Priority Rules

    21. In this section, we adopt many of the proposed and requested 
amendments to the Commission's TSP rules in part 64, Appendix A. 
Specifically, we (1) eliminate certain outdated references; (2) expand 
the list of services that are eligible for priority treatment; (3) 
update the rules to reflect current oversight practices; (4) expand the 
scope of federal employees authorized to invoke priority treatment; (5) 
adopt rules to enhance the protection of TSP data; and (6) clarify the 
timing and level of effort for provisioning and restoring service. 
Finally, we decline to amend our rules to require service providers to 
report provisioning and restoration times to DHS.
    22. Outdated Provisions. As a result of the changes that have 
occurred since the TSP rules were initially adopted, some provisions of 
the rules have become outdated and unnecessary. To address this issue, 
we eliminate section 2 of part 64, Appendix A, which outlines 
requirements governing the migration of circuits from the legacy 
Restoration Priority program and mandating the continuation of certain 
Commission orders pending the implementation of the TSP program. We 
also eliminate section 10 of Appendix A, which specifies procedures for 
the resubmission of circuits that were assigned restoration priorities 
before the Commission adopted the TSP rules. Commenters support these 
changes.
    23. Eligible Services. We adopt our proposal to maintain the 
current requirement that common carriers must offer prioritized 
restoration and provisioning of circuit-switched voice communication 
services. We also adopt the NPRM proposal to amend our rules to make 
clear that service providers may offer, on a voluntary basis, 
prioritized provisioning and restoration of data, video, and IP-based 
voice services. As originally drafted, the TSP rules were intended as a 
regulatory carveout to allow common carriers to provide 
telecommunications services, which would ordinarily be subject to the 
non-discrimination requirements of Section 202, on a prioritized basis. 
As such, the rules make no mention of the wide array of innovative 
service offerings that are currently available to NSEP personnel. This 
rule change makes clear that neither the Commission's rules nor the 
Communications Act preclude TSP providers from offering priority 
treatment of voice, data, and video services for which provisioning or 
restoration priority levels are requested, assigned, and approved in 
accordance with Appendix A. This amendment does not alter the 
regulatory status or treatment of the authorized services; to the 
extent that these services are not subject to Title II of the 
Communications Act, they are not subject to the non-discrimination 
provisions under Section 202 that the TSP rules were drafted to protect 
against. We note that the orderly administration of the TSP program 
requires that all participants--regardless of classification status--
follow the same set of rules. We therefore make clear that service 
providers who offer TSP must comply with the Commission's TSP rules.
    24. Commenters support clarifying that IP-based services are 
eligible for TSP. We agree with commenters who assert that specific 
authorization is not necessary, but including this provision in our 
rules will prevent confusion among providers and NSEP users regarding 
the services that are eligible for priority treatment. No commenter 
objects to requiring service providers that elect to participate in the 
TSP program with respect to IP-based services to comply with the TSP 
rules.
    25. However, we decline to adopt CISA's request that we require TSP 
service providers to offer prioritized provisioning and restoration of 
data, video, and IP-based voice services. While there may be potential 
benefits to making such services mandatory, the record weighs in favor 
of those services remaining voluntary at this time. First, we recognize 
that not all TSP providers may be able to offer prioritization for all 
IP-based services. In addition, because the NPRM discussed extending 
the TSP rules to non-common carrier services only on a voluntary basis, 
the record lacks sufficient information to evaluate the costs and 
benefits of making TSP mandatory for non-common carrier services.
    26. Oversight, Industry Engagement, and Executive Branch Reporting. 
We adopt the NPRM proposal to eliminate references to the TSP System 
Oversight Committee (Oversight Committee) from the TSP rules. The 
Oversight Committee, composed of representatives from government and 
industry stakeholders, was established to identify and review any 
issues that arose in the administration of the TSP program and to 
recommend actions to correct them or prevent recurrence. In its 
petition, however, NTIA explained that the administration of the TSP 
program has evolved to obviate the need for the Oversight Committee. 
Specifically, NTIA notes that the Oversight Committee's role has been 
gradually filled by the Communications Information Sharing and Analysis 
Center (Comm ISAC), and that DHS has in recent years relied on the Comm 
ISAC to ``exchange information and gain advice'' on issues involving 
the TSP program. Among other advantages, DHS explains, the Comm ISAC is 
able ``to address operational concerns in real time,'' instead of 
waiting for a scheduled Oversight Committee meeting.
    27. We eliminate the references to the Oversight Committee in our 
rules as outdated because the Comm ISAC is now fulfilling the Oversight 
Committee's role. We consider it unnecessary to ``adopt rules that 
allow DHS to consult with the [Comm] ISAC,'' as NTIA requests, because 
DHS does not require Commission authorization to consult with the Comm 
ISAC or other entities as part of its oversight of the TSP program.
    28. NTIA requests that we replace the requirement that EOP submit 
quarterly reports to the Commission and Oversight Committee with an 
annual report to the Commission, which NTIA asserts ``better aligns 
reporting timeframes to meet relevant programmatic needs.'' We agree 
with commenters that some oversight is

[[Page 39774]]

needed to ensure accountability and compliance with the Commission's 
rules. We also agree that DHS, as the agency primarily responsible for 
daily management and administration of TSP, should author reports on 
``the operational status of and trends in'' TSP. We therefore eliminate 
the provisions of our rules that direct EOP to submit quarterly and 
semi-annual reports to the Commission and, instead, request that DHS 
provide information regarding TSP in annual reports to the Commission. 
Specifically, we request that the annual reports identify (1) numbers 
of requests proceeded for the various priority actions, and the 
priority levels assigned; (2) relative percentages of services assigned 
to each priority level under each NSEP category and subcategory; (3) 
any apparent serious misassignment or abuse of priority level 
assignments; and (4) any existing or developing problem, and DHS's 
recommendations on how it intends to address each problem.
    29. Invocation Officials. We adopt our proposal to expand the scope 
of individuals who may invoke priority treatment for an eligible NSEP 
service. We define an ``invocation official'' as an individual who (1) 
understands how the requested service ties to the organization's NSEP 
mission; (2) is authorized to approve the expenditure of funds 
necessary for the requested service; and (3) has operational 
responsibilities for telecommunications procurement and/or management 
within the organization. Likewise, we eliminate the requirement that 
the invocation official must be designated in writing. Prior to this 
change, the Commission's rules required the individual to be part of a 
narrowly defined class of ``senior officials,'' including agency heads, 
and that such individual be appointed in writing in accordance with 
supplemental procedures issued by EOP.
    30. We find that these changes will make the operation of the TSP 
program more efficient while providing greater flexibility for user 
organizations. These actions reflect changes that DHS has already made, 
such as lessening the seniority requirement to allow an individual who 
is able to attest to the need for priority treatment and to obligate 
funds on behalf of the organization to serve as the ``invocation 
official.'' We find that it is not necessary for the ``invocation 
official'' to be a senior government official, such as the head or 
director of a federal agency, because, as NTIA points out, requiring 
senior officials to request TSP participation has produced 
``unnecessary delays in the approval process given the demands placed 
on senior officials and their often limited availability.'' We are also 
persuaded by NTIA's claim that the current requirements are untenable 
because senior officials typically do not ``interact[ ] with service 
providers and often lack[ ] direct knowledge of the purpose and need 
for the NS/EP service.'' Commenters support these changes.
    31. Protection of TSP Data. We amend the TSP rules to enhance the 
protection of TSP data. We agree with NTIA that the unauthorized 
disclosure of sensitive information related to TSP circuits, in the 
aggregate, could pose a national security risk. We further agree that 
service providers moving certain operational, administrative, and 
management functions overseas could create additional risk by exposing 
TSP data to companies and individuals outside the United States. We 
likewise find merit in the arguments of some commenters that factors 
such as the use of firewalls, access controls, and other security 
protocols are more consequential than the physical location of the 
servers that house the TSP data. Even with respect to the physical 
location of the servers, we note that differing laws in foreign 
jurisdictions means that the threat of disclosure--through both lawful 
and unlawful means--varies from country to country. We conclude that a 
reasonableness test that accounts for the sensitivity of this data is 
preferable to prescriptive rules. While a reasonableness test provides 
less of a bright line for compliance, it will allow providers greater 
flexibility to manage their networks while respecting the 
confidentiality of this data. We therefore amend our rules to 
strengthen the current provision addressing the confidentiality of this 
data. The current version of this provision directs service providers 
to ``[n]ot disclose information concerning NSEP services they provide 
to those not having a need-to-know or [who] might use the information 
for competitive advantage.'' To this section, we add the following 
language:

    Service providers will take all reasonable efforts to secure the 
confidentiality of TSP information from unauthorized disclosure, 
including by storing such information in a location and with 
security safeguards that are reasonably designed to protect against 
lawful or unlawful disclosure to company employees or service 
providers without a legitimate need for this information, or other 
entities to which the disclosure of this information would pose a 
threat to the national security of the United States. Service 
providers will immediately notify the FCC and DHS of any attempt to 
compel the disclosure of this information and will coordinate with 
the FCC and DHS prior to such disclosure. In emergency situations 
where prior notice is impracticable, service providers will notify 
the FCC and DHS as soon as possible, but no later than 48 hours 
after such disclosure, and should accompany such notice with an 
explanation why prior notice was not practicable.

    We find that this test strikes the appropriate balance between 
DHS's concerns about the potential national security risks posed by the 
disclosure of this data, and the concerns of commenters about the 
shortcomings of a more prescriptive approach. We therefore conclude 
that the benefits to national security will far exceed the minimal 
costs that service providers may incur as a result of these 
requirements.
    32. Provisioning and Restoration Timeframes. The Commission's 
current TSP rules include three subsections that address the timeframes 
that service providers must meet to (1) provision service; (2) restore 
service; and (3) meet requested service dates for TSP-subject 
facilities. However, each subsection specifies a different standard 
(``best efforts,'' ``as soon as possible,'' and ``as quickly as 
practicable'') for the time and level of effort required for service 
providers to provision or restore TSP facilities. NTIA claims the 
``varying and ambiguous language'' in the current rules ``has created 
confusion, disagreements, dissatisfaction, and unrealistic 
expectations'' between users, providers, and DHS's program staff.
    33. We agree with NTIA that replacing varying timeframe standards 
with a single standard will eliminate confusion and provide more 
certainty for service providers regarding their provisioning and 
restoration responsibilities. We also disagree with commenters who 
argue that we should maintain the existing standards or ``eliminate the 
restoration timeframes from [the] rules entirely.'' We therefore amend 
section 6.f of Appendix A by replacing the current language with the 
single term ``promptly'' to describe TSP service providers' 
provisioning and restoration obligations. Further, we define 
``promptly'' as meaning ``without delay.''
    34. In adopting this standard, we address two competing sets of 
concerns raised by commenters. On the one hand, as NTIA points out, 
greater clarity and certainty regarding provisioning and restoration 
timeframes will reduce confusion and provide more concrete expectations 
for NSEP users, service providers, and DHS's program office staff. On 
the other hand, we seek to avoid an overly burdensome or prescriptive 
requirement that could, as other commenters point out, fail to

[[Page 39775]]

account for the ``variable nature of communications outages,'' and the 
costs and benefits of specific circumstances. In general, we agree with 
commenters that the standard for provisioning and restoration must 
provide clarity and account for incident specific factors, while not 
placing unreasonable demands on service providers.
    35. We find that the ``promptly'' standard best addresses the 
competing interests that are outlined in the record. Requiring 
``prompt'' action--and defining ``promptly'' to mean ``without 
delay''--necessitates that service providers move as rapidly as is 
reasonable under the circumstances, which establishes a clear and 
enforceable floor for action. However, this standard does not mandate 
specific timelines or levels of effort and it allows for consideration 
of variable incident-specific circumstances in determining what speed 
of response and allocation of resources is reasonable. We find the 
``promptly'' standard preferable to the alternative standards proposed 
by commenters, such as ``best efforts,'' or ``as soon as possible,'' 
which do not convey the same sense of urgency and are more subjective 
and susceptible to conflicting interpretations.
    36. Reporting Requirements. In the NPRM, we sought comment on 
NTIA's request that we amend our rules to require service providers to 
report provisioning and restoration times to DHS for TSP circuits in 
areas covered by the activation of the Disaster Information Reporting 
System (DIRS). DHS asserts that it is necessary for the Commission to 
impose such reporting requirements to enable DHS to obtain access to 
TSP provisioning and restoration times and aggregate data so that it 
can compare the data for TSP services to similar data for non-TSP 
services. However, most commenters oppose NTIA's request and raise a 
number of arguments for declining to adopt additional reporting 
requirements. Some commenters point out that requiring service 
providers to report data in the midst of a disaster could force them to 
divert resources away from the disaster response efforts. Other 
commenters contend that mandatory TSP reporting requirements could 
undercut the effectiveness of DIRS because service providers could 
attempt to avoid TSP reporting obligations by declining to participate 
in DIRS reporting. Others argue that comparing the provisioning and 
restoration times of TSP services and non-TSP services is unlikely to 
produce useful or actionable results. Finally, a number of commenters 
raise practical concerns with implementing the reporting requirements 
by, for example, pointing out that the configuration of networks and IT 
systems may not allow for reporting with the granularity required to 
produce such reports.
    37. We decline to adopt reporting requirements in our rules. While 
we recognize the potential benefits of collecting provisioning and 
restoration data, commenters raise questions about the cost, efficacy, 
and utility of reporting requirements, and the record does not include 
sufficient information to rebut these objections. Indeed, no commenter 
responded to the concerns raised in the record. Only one commenter 
(BRETSA) indicated support for the requested rule change, but merely 
noted that requiring data on network performance might improve the 
management and operation of the TSP program. Moreover, NTIA does not 
propose specific obligations concerning the timing and frequency for 
reporting this information, but instead, proposes that DHS coordinate 
with the Commission to develop specific data requirements and reporting 
timeframes. We believe these details should be clarified before the 
Commission establishes new reporting requirements.
    38. Finally, it is unclear whether DHS lacks other means to obtain 
the requested information. Some commenters contend that DHS may be able 
to obtain this information through contractual negotiations with 
service providers. CISA asserts that contractual arrangements for TSP 
do not currently exist between DHS and service providers and claims 
that DHS currently has no basis on which to establish contractual 
arrangements for TSP. However, CISA has not identified any legal 
prohibition that would preclude consideration of a contractual 
approach. Nevertheless, recognizing the potential value of collecting 
greater data about provisioning and restoration times, while we decline 
to adopt reporting requirements today, we encourage further dialogue 
regarding whether an appropriate avenue exists for obtaining this data 
that might be responsive to concerns raised in the record, whether 
through further changes to our rules or through other means.

C. Changes to Wireless Priority Service Rules

    39. With a few exceptions and modifications, discussed below, we 
adopt most of the changes to our WPS rules proposed in the NPRM. 
Specifically, we (1) update the rules to reflect the commonly used name 
for this program; (2) expand the list of services eligible for WPS to 
reflect newer technologies, as we did with TSP; (3) expand WPS 
eligibility to include additional users; (4) clarify the operation of 
the priority levels to make clear that higher priority services take 
precedence over those with lower priority; (5) discuss the 
applicability of the WPS rules to the FirstNet network; (6) clarify the 
extent to which preemption and degradation may be used to facilitate 
prioritized communications; (7) expressly authorize priority signaling; 
and (8) eliminate the requirement that priority access must be invoked 
on a per-call basis. Finally, as with TSP, we decline to adopt 
additional reporting requirements proposed by NTIA.
    40. Program Name. As described above, government, industry, and 
users commonly refer to Priority Access Service as Wireless Priority 
Service. To reflect the prevailing naming convention, we adopt the NPRM 
proposal to replace all references to ``Priority Access Service'' with 
``Wireless Priority Service'' in section 64.402 and part 64, Appendix 
B. We agree with NTIA that the name Wireless Priority Service ``better 
reflects the service's current requirements and capabilities.'' No 
commenters directly addressed this issue, but T-Mobile previously 
indicated support for ``updating the language. . . as necessary to 
mitigate any potential confusion and enhance clarity.''
    41. Eligible Services. We adopt the NPRM proposal to amend the WPS 
rules to expressly permit wireless service providers, on a voluntary 
basis, to give NSEP personnel priority access to, and priority use of, 
all secure and non-secure voice, data, and video services available 
over their networks, including IP-based services. We also adopt the 
NPRM proposal to eliminate references to ``CMRS'' and, where necessary, 
substitute the term ``wireless'' to describe services, networks, and 
providers. Finally, we retain the current requirement that if a service 
provider elects to offer WPS, it must comply with the Commission's WPS 
rules.
    42. Commenters support amending the rules to authorize wireless 
service providers to voluntarily offer priority treatment of all voice, 
data, and video services to eligible users. Since the WPS rules were 
initially adopted in 2000, the ``capacity and capabilities of 
[wireless] networks have expanded immensely'' and wireless service 
providers are now able to offer a wide array of voice, data, and video 
services. The development of new technologies has direct implications 
for NSEP users, who increasingly rely on these innovative services and 
applications to ``make and complete mission-essential

[[Page 39776]]

communications in an efficient and effective manner.'' We find that 
amending our rules to include all voice, data, and video services, 
including IP-based services, will promote consistency and prevent 
confusion among service providers.
    43. DHS has interpreted the lack of explicit authorization in our 
rules to mean that WPS providers are not permitted to offer priority 
data, video, and IP-based voice services. We disagree with DHS's view, 
and instead agree with commenters who assert that while specific 
authorization is not necessary, it will prevent confusion among 
providers and NSEP users regarding the services that are eligible for 
priority treatment. We believe that by removing any uncertainty about 
the legal authority to offer these services, our action will facilitate 
the development of new services and capabilities which, in turn, will 
significantly benefit NSEP users.
    44. Eligible Users. We adopt the NPRM proposal to modify the 
descriptions of priority levels and qualifying criteria in Appendix B 
to expand WPS eligibility to additional users, particularly those with 
response and restoration roles during emergency situations. 
Specifically, we amend Appendix B to include entities from the critical 
infrastructure sectors identified in Presidential Policy Directive 
(PPD)-21, and we modify the descriptions of priority levels and 
qualifying criteria to allow financial services and hospital personnel 
to qualify for WPS. We also remove outdated language that currently 
limits WPS eligibility to ``key personnel'' and individuals in 
``leadership positions'' and clarify that WPS should be made available 
to all NSEP personnel that meet the qualifying criteria.
    45. In addition to providing WPS to these critical groups, this 
amendment also brings our rules in line with developments in the 
administration of the WPS program. While the current rules do not 
include multiple categories of NSEP users, such as critical 
infrastructure protection, financial services, and hospital personnel, 
DHS is currently assigning priority levels to those users.
    46. Commenters generally support allowing more groups of NSEP users 
to qualify for WPS, but disagree about the process for determining 
their eligibility and priority level assignments. For example, AT&T 
states that the Commission should ``specify how entities . . . would be 
incorporated'' into the priority levels, while T-Mobile argues that 
decision should ``continue to lie[ ] with DHS.'' We need not address 
this specific issue in our rules because, as described above, we 
eliminate the provisions that describe the responsibilities of EOP for 
the priority services programs. However, we expect that DHS will 
continue to make WPS eligibility determinations and priority level 
assignments pursuant to Executive Order 13618.
    47. Priority Levels. The Commission's WPS rules list five levels of 
priority, with Priority Level 1 being the highest. NTIA asks the 
Commission to amend the rules to make explicit that Priority Level 1 
communications--those made by the President of the United States, as 
well as certain executive leaders and policymakers--should receive 
priority treatment that exceeds that given to users at any other 
priority level. We agree with NTIA's requested rule change, which would 
make it both ``explicit and conspicuous'' that ``the nation's executive 
leadership receive top priority.'' Commenters generally agree that the 
Commission should update its rules to clarify the status of Priority 
Level 1 users. We therefore adopt the NPRM proposal and clarify that 
Priority Level 1 exceeds all other priority services offered by WPS 
providers.
    48. WPS and FirstNet. In ex parte comments, FirstNet notes that 
``[although this proceeding appears specifically aimed'' at WPS and 
TSP, ``[FirstNet] wishes to clarify that any updates to the FCC's 
priority services rules should not apply to the distinct, unique 
FirstNet services.'' FirstNet requests that the Commission exclude 
FirstNet services ``from any updates or revisions to the Commission's 
priority services rules and, in particular, that FirstNet services not 
be subject to overriding priority or degradation vis-[agrave]-vis any 
other priority services offerings.'' AT&T similarly argues that 
``[a]ccomplishment of the [FirstNet Authority's] mission requires . . . 
broad authority to assign priority levels,'' and states that ``the WPS 
rules should not interfere with the interplay of priority levels vis-
[agrave]-vis FirstNet and WPS and other programs.'' Verizon asserts 
that the same principle applies to public safety services offered by 
other providers, stating that the WPS rules ``have never been 
interpreted so expansively as to preclude wireless providers from 
offering innovative priority and preemption capabilities in their 
separate public safety communications offerings.'' Responding to AT&T, 
T-Mobile asserts that providers should not be allowed to ``pick and 
choose how users receive priority based on their status with a 
particular provider,'' and urges the Commission to ``ensure that all 
WPS subscribers receive priority treatment based solely on their WPS 
status regardless of what network they are on, including FirstNet.''
    49. As FirstNet notes, this proceeding is focused on TSP and WPS, 
and the NPRM did not mention or seek comment on FirstNet. Nevertheless, 
in light of the comments filed on this issue, we believe it is 
appropriate to clarify the relationship between WPS and FirstNet. As 
stated above, the WPS rules only apply to service providers that 
voluntarily elect to participate in WPS. FirstNet is a separate program 
with distinct statutory authority to operate the Nationwide Public 
Safety Broadband Network and to offer prioritization to first 
responders. As such, the WPS rules do not apply to prioritization 
within the FirstNet network, and FirstNet is therefore not required to 
comply with the WPS rules in providing such prioritization to its 
public safety users. However, FirstNet may voluntarily elect to 
participate in WPS and, if it chooses to do so, like any other WPS 
participant, its participation must be in accordance with the WPS 
rules. Indeed, FirstNet states that it offers WPS capability to users 
that request it, and acknowledges that ``[t]o the extent a FirstNet 
subscriber has the WPS feature enabled on their FirstNet service, the 
use of that WPS capability would be subject to the prevailing WPS 
rules.''
    50. Preemption and Degradation. The NPRM proposed to authorize 
preemption and degradation for Priority Level 1 and 2 voice calls, 
except for public safety emergency (911) calls. NTIA requested this 
clarification based on its view that ``[c]urrent WPS rules do not 
permit NS/EP calls to preempt other in-progress calls.'' NTIA asked 
that the Commission amend its rules because preemption and degradation 
are ``critical priority feature[s] that will enable the highest 
priority NS/EP users to communicate and coordinate'' during emergency 
situations--when commercial networks are often the most congested.'' We 
sought comment on NTIA's requested rule change.
    51. The WPS rules currently permit re-ordering of queued (not-yet-
established) call requests based on user priority but do not provide 
for re-ordering of active (in-progress) calls. However, as several 
commenters point out, and as we recognized in the NPRM, the lack of 
explicit authorization does not preclude WPS providers from re-ordering 
active calls. We similarly find that preemption and degradation of 
active calls in support of WPS prioritization is not precluded by our

[[Page 39777]]

rules. To the extent that these mechanisms are employed in WPS by 
common carriers subject to Title II, we clarify that they are not 
``unjust or unreasonable'' practices that violate the non-
discrimination provision of section 202. To the extent that these 
mechanisms are used in support of NSEP communications outside the scope 
of Title II, they are legally permissible. Thus, while expressly 
authorizing priority and preemption in the rules may be legally 
unnecessary, we determine that explicit authorization will help ensure 
``consistent interpretation of the rules by WPS providers to the 
ultimate benefit of NSEP users.''
    52. AT&T expresses concern that authorizing preemption and 
degradation only in support of Priority Level 1 and 2 voice calls might 
suggest that it is prohibited for other priority levels. We agree that 
preemption and degradation of lower-priority communications are 
permissible at all WPS priority levels. Therefore, we modify the NPRM 
proposed rule to expressly permit, voice, data, text, and video 
communications from NSEP users assigned to any priority level to 
preempt or degrade other in-progress communications, except for public 
safety emergency (911) communications. Likewise, we make clear that 
preemption and degradation are permitted but not required by our rules. 
We agree with commenters that issues related to preemption and 
degradation should be determined via contractual arrangements because 
such an approach will give WPS providers increased flexibility to 
update their service offerings and determine when and how to apply 
these capabilities.
    53. Priority Signaling. We adopt the NPRM proposal to update our 
WPS rules to expressly authorize priority signaling to ensure networks 
can detect WPS handset network registration and service invocation. 
Priority signaling is an important feature that allows service 
providers to mitigate the risks of signaling congestion by ensuring 
``successful WPS handset network registration and service invocation.'' 
While commenters correctly note that the Commission's rules do not 
prohibit priority signaling and that some WPS providers already offer 
it via contractual arrangements with DHS, commenters do not raise any 
objections to explicitly authorizing priority signaling in our rules. 
We find that this rule change will promote clarity and consistency for 
providers and, therefore, adopt the rule change as proposed in the 
NPRM.
    54. Methods of Invocation. We adopt the NPRM proposal to eliminate 
the requirement that WPS priority access must be invoked on a per-call 
basis. Currently, authorized users invoke priority access on a per-call 
basis by dialing a specified feature code before each call. We agree 
with NTIA that requiring users to invoke WPS for each communication 
``hinder[s] efficient response'' during emergency situations. Although 
AT&T argues for maintaining the current requirement in order to ensure 
that ``WPS functions smoothly for calls that must be transmitted over 
multiple carrier networks,'' we believe that DHS is in the best 
position to ensure interoperability between the various networks that 
carry prioritized communications.
    55. We also decline to prescribe other specific methods of WPS 
invocation in our rules. We agree with T-Mobile that methods of 
invocation should be determined by contractual arrangements because 
such an approach will ensure that all WPS providers are ``afforded the 
same flexibility and treatment.'' Commenters support this change 
because it provides greater flexibility for service providers to decide 
how to offer WPS services in the manner most suitable for their 
subscribers and networks.
    56. Reporting Requirements. We decline to amend our rules to 
require service providers to file implementation, usage, and 
performance data with DHS. According to NTIA, DHS currently collects 
and analyzes data from WPS providers detailing ``usage, performance, 
implementation, and supporting infrastructure,'' so that it can assess 
``WPS readiness, usage, and performance at all times and all places 
offered, as well as for specific geographic areas and times. NTIA 
asserts that the requested rule change is necessary to ensure 
consistency across all WPS providers and to formalize the process by 
which providers submit WPS data to DHS.
    57. Commenters oppose NTIA's requested rule change, arguing that 
new reporting requirements could inhibit providers' flexibility and 
ability to innovate and duplicate existing reporting processes. 
Notably, the record includes minimal responses to those objections. 
Instead, commenters assert that DHS should obtain this information via 
contractual arrangement with WPS providers. Based on this record and 
consistent with our discussion above with respect to TSP reporting, we 
decline to adopt new WSP reporting requirements at this time and 
encourage further dialogue on this matter.

D. Alternative Contract-Based Approach for TSP and WPS

    58. The NPRM sought comment on an alternative ``light touch'' 
approach, whereby the current rules for TSP and WPS would be eliminated 
and the programs would operate strictly via contractual arrangements 
between DHS and service providers. This approach would make TSP and WPS 
prioritization resemble GETS, which provides prioritization through the 
Public Switched Telephone Network for over 330,600 GETS card holders. 
Currently, there are no Commission rules for GETS, which operates 
solely via contractual arrangements with DHS.
    59. Most industry commenters prefer the ``light touch'' contractual 
approach to the current rules-based approach. T-Mobile disagrees, 
arguing that the Commission should ``maintain a limited set of rules'' 
for TSP and WPS. Likewise, CISA argues that eliminating the rules would 
remove the existing liability protections for prioritized non-broadband 
services and, without such protection from liability, carriers would be 
unlikely to offer priority services. CISA also asserts that it 
currently has no basis on which to establish contractual arrangements 
with TSP providers.
    60. We decline to adopt a wholly contractual scheme for priority 
services. Although a contractual approach could provide some benefits, 
commenters have not identified fundamental problems or deficiencies in 
the existing rules-based approach. Overall, the record indicates that 
both TSP and WPS have functioned without major disruption and have 
expanded under the current approach. Given the critical role of the 
priority services programs in supporting the NSEP posture of the United 
States, we believe that continuing to have baseline rules for TSP and 
WPS will promote continuity and consistency in these programs. We agree 
with CISA that the rules provide important liability protections for 
service providers and that removing these protections could create 
uncertainty regarding liability that might discourage providers from 
participating in the programs. Further, a strictly contract-based 
approach could impose administrative and cost burdens on DHS by 
requiring it to make extensive programmatic changes. In sum, we 
conclude that the potential adverse impacts of implementing the 
alternative approach would outweigh the potential benefits.

[[Page 39778]]

IV. Procedural Matters

A. Report to Congress

    61. The Commission will send a copy of the Report and Order, 
including this FRFA, in a report to Congress pursuant to the 
Congressional Review Act. In addition, the Commission will send a copy 
of the Report and Order, including this FRFA, to the Chief Counsel for 
Advocacy of the SBA. A copy of the Report and Order and FRFA (or 
summaries thereof) will also be published in the Federal Register.

B. Regulatory Flexibility Act

    62. 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.'' Accordingly, the Commission has 
prepared a Final Regulatory Flexibility Analysis (FRFA) concerning the 
possible impact of the rule changes contained in this Report and Order 
on small entities. The FRFA is set forth in Appendix C of the Report 
and Order.

V. Final Regulatory Flexibility Analysis

    63. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the Notice of Proposed Rulemaking (NPRM) adopted in 
July 2020. The Commission sought written public comment on the 
proposals in the NPRM, including comment on the IRFA. No comments were 
filed addressing the IRFA. This present Final Regulatory Flexibility 
Analysis (FRFA) conforms to the RFA.

A. Need for, and Objectives of, the Final Rules

    64. In the Report and Order, the Commission updates and streamlines 
its priority services rules. These rules facilitate prioritized 
connectivity to National Security and Emergency Preparedness (NSEP) 
personnel during emergency situations by authorizing prioritized 
provisioning and restoration of communications facilities and 
prioritized network access for wireless communications. The priority 
services programs are used to ``maintain a state of readiness [and] to 
respond to and manage any event or crisis . . . [that] degrades or 
threatens the NSEP posture of the United States.''
    65. The Commission takes this action because the priority services 
rules (the most recent of which were updated over two decades ago) need 
to be updated to account for changes in technology. The Commission's 
current rules date back to the establishment of the Telecommunications 
Service Priority (TSP) System in 1988 and the creation of the Priority 
Access Service (PAS), more commonly referred to as Wireless Priority 
Service (WPS), in 2000. The Commission's rules were originally 
developed when communications networks were primarily based on circuit-
switched technologies. They do not address the advanced capabilities of 
internet Protocol (IP)-based communications that support data and voice 
services, or the ability of users at different priority levels to share 
network capacity and resources.
    66. The Commission also takes this action to address the requests 
from the Department of Homeland Security (DHS) through the National 
Telecommunications and Information Administration (NTIA) to update the 
existing rules and requirements for the priority services programs. 
NTIA filed two Petitions for Rulemaking on behalf of DHS, requesting 
that the FCC update its TSP and Priority Access Service (PAS) rules to 
address changes in technology and evolving user needs for these 
programs. The NPRM sought comment on both NTIA petitions as well as on 
the Commission's proposed rule changes.
    67. In the Report and Order, the Commission updates its priority 
services rules to reflect today's marketplace and governance framework 
and to explicitly authorize the prioritization of next-generation 
technology. For example, the Commission removes outdated language that 
could cause confusion and otherwise impede the use of IP-based 
technologies to support the provision of priority services for voice, 
data, and video communications. The Commission also amends its priority 
service rules to reflect current administrative responsibilities for 
the priority services programs while eliminating burdensome and 
unnecessary requirements on service providers. The scope of the changes 
adopted in the Report and Order in some instances apply to both TSP and 
WPS, and in other instances apply only to TSP or only to WPS. These 
changes are intended to reduce regulatory burdens and make our rules 
flexible enough to respond to changing administrative requirements or 
technological advances related to the priority services programs. We 
also believe that these changes will substantially increase the 
benefits to NSEP users and public safety while reducing the regulatory 
costs imposed on providers of priority services.

B. Summary of Significant Issues Raised by Comments in Response to the 
IRFA

    68. There were no comments filed that specifically addressed the 
proposed rules and policies presented in the IRFA.

C. Response to Comments by the Chief Counsel for Advocacy of the Small 
Business Administration

    69. Pursuant to the Small Business Jobs Act of 2010, which amended 
the RFA, the Commission is required to respond to any comments filed by 
the Chief Counsel for Advocacy of the Small Business Administration 
(SBA) and to provide a detailed statement of any change made to the 
proposed rules as a result of those comments.
    70. The Chief Counsel did not file any comments in response to the 
proposed rules in this proceeding.

D. Description and Estimate of the Number of Small Entities to Which 
the Rules Will Apply

    71. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the rules adopted herein. The RFA generally defines the 
term ``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 SBA.
    72. 700 MHz Guard Band Licensees. The 700 MHz Guard Band 
encompasses spectrum in 746-747/776-777 MHz and 762-764/792-794 MHz 
frequency bands. Wireless Telecommunications Carriers (except 
Satellite) is the closest industry with a SBA small business size 
standard applicable to licenses providing services in these bands. The 
SBA small business size standard for this industry classifies a 
business as small if it has 1,500 or fewer employees. U.S. Census 
Bureau data for 2017 show that there were 2,893 firms that operated in 
this industry for the entire year. Of this number, 2,837 firms employed 
fewer than 250 employees. Thus, under the SBA size standard, the 
Commission estimates that a majority of licensees in this industry can 
be considered small.
    73. According to Commission data as of December 2021, there were

[[Page 39779]]

approximately 224 active 700 MHz Guard Band licenses. The Commission's 
small business size standards with respect to 700 MHz Guard Band 
licensees involve eligibility for bidding credits and installment 
payments in the auction of licenses. For the auction of these licenses, 
the Commission defined a ``small business'' as an entity that, together 
with its affiliates and controlling principals, has average gross 
revenues not exceeding $40 million for the preceding three years, and a 
``very small business'' an entity that, together with its affiliates 
and controlling principals, has average gross revenues that are not 
more than $15 million for the preceding three years. Pursuant to these 
definitions, five winning bidders claiming one of the small business 
status classifications won 26 licenses, and one winning bidder claiming 
small business won two licenses. None of the winning bidders claiming a 
small business status classification in these 700 MHz Guard Band 
license auctions had an active license as of December 2021.
    74. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    75. Advanced Wireless Services (AWS)--(1710-1755 MHz and 2110-2155 
MHz bands (AWS-1); 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 
2175-2180 MHz bands (AWS-2); 2155-2175 MHz band (AWS-3); 2000-2020 MHz 
and 2180-2200 MHz (AWS-4)). Spectrum is made available and licensed in 
these bands for the provision of various wireless communications 
services. Wireless Telecommunications Carriers (except Satellite) is 
the closest industry with a SBA small business size standard applicable 
to these services. The SBA small business size standard for this 
industry classifies a business as small if it has 1,500 or fewer 
employees. U.S. Census Bureau data for 2017 show that there were 2,893 
firms that operated in this industry for the entire year. Of this 
number, 2,837 firms employed fewer than 250 employees. Thus, under the 
SBA size standard, the Commission estimates that a majority of 
licensees in this industry can be considered small.
    76. According to Commission data as December 2021, there were 
approximately 4,472 active AWS licenses. The Commission's small 
business size standards with respect to AWS involve eligibility for 
bidding credits and installment payments in the auction of licenses for 
these services. For the auction of AWS licenses, the Commission defined 
a ``small business'' as an entity with average annual gross revenues 
for the preceding three years not exceeding $40 million, and a ``very 
small business'' as an entity with average annual gross revenues for 
the preceding three years not exceeding $15 million. Pursuant to these 
definitions, 57 winning bidders claiming status as small or very small 
businesses won 215 of 1,087 licenses. In the most recent auction of AWS 
licenses 15 of 37 bidders qualifying for status as small or very small 
businesses won licenses.
    77. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    78. Competitive Local Exchange Carriers (LECs). Neither the 
Commission nor the SBA has developed a size standard for small 
businesses specifically applicable to local exchange services. 
Providers of these services include several types of competitive local 
exchange service providers. Wired Telecommunications Carriers is the 
closest industry with a SBA small business size standard. The SBA small 
business size standard for Wired Telecommunications Carriers classifies 
firms having 1,500 or fewer employees as small. U.S. Census Bureau data 
for 2017 show that there were 3,054 firms that operated in this 
industry for the entire year. Of this number, 2,964 firms operated with 
fewer than 250 employees. Additionally, based on Commission data in the 
2021 Universal Service Monitoring Report, as of December 31, 2020, 
there were 3,956 providers that reported they were competitive local 
exchange service providers. Of these providers, the Commission 
estimates that 3,808 providers have 1,500 or fewer employees. 
Consequently, using the SBA's small business size standard, most of 
these providers can be considered small entities.
    79. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the 
Commission nor the SBA have developed a small business size standard 
specifically for incumbent local exchange carriers. Wired 
Telecommunications Carriers is the closest industry with a SBA small 
business size standard. The SBA small business size standard for Wired 
Telecommunications Carriers classifies firms having 1,500 or fewer 
employees as small. U.S. Census Bureau data for 2017 show that there 
were 3,054 firms in this industry that operated for the entire year. Of 
this number, 2,964 firms operated with fewer than 250 employees. 
Additionally, based on Commission data in the 2021 Universal Service 
Monitoring Report, as of December 31, 2020, there were 1,227 providers 
that reported they were incumbent local exchange service providers. Of 
these providers, the Commission estimates that 929 providers have 1,500 
or fewer employees. Consequently, using the SBA's small business size 
standard, the Commission estimates that the majority of incumbent local 
exchange carriers can be considered small entities.
    80. Lower 700 MHz Band Licenses. The lower 700 MHz band encompasses 
spectrum in the 698-746 MHz frequency bands. Permissible operations in 
these bands include flexible fixed, mobile, and broadcast uses, 
including mobile and other digital new broadcast operation; fixed and 
mobile wireless commercial services (including FDD- and TDD-based 
services); as well as fixed and mobile wireless uses for private, 
internal radio needs, two-way interactive, cellular, and mobile 
television broadcasting services. Wireless Telecommunications Carriers 
(except Satellite) is the closest industry with a SBA small business 
size standard applicable to licenses providing services in these bands. 
The SBA small business size standard for this industry classifies a 
business as small if it has 1,500 or fewer employees. U.S. Census 
Bureau data for 2017 show that there were 2,893 firms that operated in 
this industry for the entire year. Of this number, 2,837 firms employed 
fewer than 250 employees. Thus, under the SBA size standard, the 
Commission estimates that

[[Page 39780]]

a majority of licensees in this industry can be considered small.
    81. According to Commission data as of December 2021, there were 
approximately 2,824 active Lower 700 MHz Band licenses. The 
Commission's small business size standards with respect to Lower 700 
MHz Band licensees involve eligibility for bidding credits and 
installment payments in the auction of licenses. For auctions of Lower 
700 MHz Band licenses the Commission adopted criteria for three groups 
of small businesses. A very small business was defined as an entity 
that, together with its affiliates and controlling interests, has 
average annual gross revenues not exceeding $15 million for the 
preceding three years, a small business was defined as an entity that, 
together with its affiliates and controlling interests, has average 
gross revenues not exceeding $40 million for the preceding three years, 
and an entrepreneur was defined as an entity that, together with its 
affiliates and controlling interests, has average gross revenues not 
exceeding $3 million for the preceding three years. In auctions for 
Lower 700 MHz Band licenses seventy-two winning bidders claiming a 
small business classification won 329 licenses, 26 winning bidders 
claiming a small business classification won 214 licenses, and three 
winning bidders claiming a small business classification won all five 
auctioned licenses.
    82. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    83. Narrowband Personal Communications Services. Narrowband 
Personal Communications Services (Narrowband PCS) are PCS services 
operating in the 901-902 MHz, 930-931 MHz, and 940-941 MHz bands. PCS 
services are radio communications that encompass mobile and ancillary 
fixed communication that provide services to individuals and businesses 
and can be integrated with a variety of competing networks. Wireless 
Telecommunications Carriers (except Satellite) is the closest industry 
with a SBA small business size standard applicable to these services. 
The SBA small business size standard for this industry classifies a 
business as small if it has 1,500 or fewer employees. U.S. Census 
Bureau data for 2017 show that there were 2,893 firms that operated in 
this industry for the entire year. Of this number, 2,837 firms employed 
fewer than 250 employees. Thus, under the SBA size standard, the 
Commission estimates that a majority of licensees in this industry can 
be considered small.
    84. According to Commission data as of December 2021, there were 
approximately 4,211 active Narrowband PCS licenses. The Commission's 
small business size standards with respect to Narrowband PCS involve 
eligibility for bidding credits and installment payments in the auction 
of licenses for these services. For the auction of these licenses, the 
Commission defined a ``small business'' as an entity that, together 
with affiliates and controlling interests, has average gross revenues 
for the three preceding years of not more than $40 million. A ``very 
small business'' is defined as an entity that, together with affiliates 
and controlling interests, has average gross revenues for the three 
preceding years of not more than $15 million. Pursuant to these 
definitions, seven winning bidders claiming small and very small 
bidding credits won approximately 359 licenses. One of the winning 
bidders claiming a small business status classification in these 
Narrowband PCS license auctions had an active license as of December 
2021.
    85. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    86. Offshore Radiotelephone Service. This service operates on 
several UHF television broadcast channels that are not used for 
television broadcasting in the coastal areas of states bordering the 
Gulf of Mexico. Wireless Telecommunications Carriers (except Satellite) 
is the closest industry with a SBA small business size standard 
applicable to this service. The SBA small business size standard for 
this industry classifies a business as small if it has 1,500 or fewer 
employees. U.S. Census Bureau data for 2017 show that there were 2,893 
firms that operated in this industry for the entire year. Of this 
number, 2,837 firms employed fewer than 250 employees. Thus, under the 
SBA size standard, the Commission estimates that a majority of 
licensees in this industry can be considered small. Additionally, based 
on Commission data, as of December 2021, there was one licensee with an 
active license in this service. However, since the Commission does not 
collect data on the number of employees for this service, at this time 
we are not able to estimate the number of licensees that would qualify 
as small under the SBA's small business size standard.
    87. Rural Radiotelephone Service. Neither the Commission nor the 
SBA have developed a small business size standard specifically for 
small businesses providing Rural Radiotelephone Service. Rural 
Radiotelephone Service is radio service in which licensees are 
authorized to offer and provide radio telecommunication services for 
hire to subscribers in areas where it is not feasible to provide 
communication services by wire or other means. A significant subset of 
the Rural Radiotelephone Service is the Basic Exchange Telephone Radio 
System (BETRS). Wireless Telecommunications Carriers (except 
Satellite), is the closest applicable industry with a SBA small 
business size standard. The SBA small business size standard for 
Wireless Telecommunications Carriers (except Satellite) classifies 
firms having 1,500 or fewer employees as small. For this industry, U.S. 
Census Bureau data for 2017 show that there were 2,893 firms that 
operated for the entire year. Of this total, 2,837 firms employed fewer 
than 250 employees. Thus, under the SBA size standard, the Commission 
estimates that the majority of Rural Radiotelephone Services firm are 
small entities. Based on Commission data as of December 27, 2021, there 
were approximately 119 active licenses in the Rural Radiotelephone 
Service. The Commission does not collect employment data from these 
entities holding these licenses and therefore we cannot estimate how 
many of these entities meet the SBA small business size standard.
    88. Small Businesses, Small Organizations, Small Governmental 
Jurisdictions. Our actions, over time,

[[Page 39781]]

may affect small entities that are not easily categorized at present. 
We therefore describe here, at the outset, three broad groups of small 
entities that could be directly affected herein. First, while there are 
industry specific size standards for small businesses that are used in 
the regulatory flexibility analysis, according to data from the Small 
Business Administration's (SBA) Office of Advocacy, in general a small 
business is an independent business having fewer than 500 employees. 
These types of small businesses represent 99.9% of all businesses in 
the United States, which translates to 32.5 million businesses.
    89. Next, the type of small entity described as a ``small 
organization'' is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 
or less to delineate its annual electronic filing requirements for 
small exempt organizations. Nationwide, for tax year 2020, there were 
approximately 447,689 small exempt organizations in the U.S. reporting 
revenues of $50,000 or less according to the registration and tax data 
for exempt organizations available from the IRS.
    90. Finally, the small entity described as a ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than fifty thousand.'' U.S. Census 
Bureau data from the 2017 Census of Governments indicate that there 
were 90,075 local governmental jurisdictions consisting of general 
purpose governments and special purpose governments in the United 
States. Of this number, there were 36,931 general purpose governments 
(county, municipal and town or township) with populations of less than 
50,000 and 12,040 special purpose governments--independent school 
districts with enrollment populations of less than 50,000. Accordingly, 
based on the 2017 U.S. Census of Governments data, we estimate that at 
least 48,971 entities fall into the category of ``small governmental 
jurisdictions.''
    91. Upper 700 MHz Band Licenses. The upper 700 MHz band encompasses 
spectrum in the 746-806 MHz bands. Upper 700 MHz D Block licenses are 
nationwide licenses associated with the 758-763 MHz and 788-793 MHz 
bands. Permissible operations in these bands include flexible fixed, 
mobile, and broadcast uses, including mobile and other digital new 
broadcast operation; fixed and mobile wireless commercial services 
(including FDD- and TDD-based services); as well as fixed and mobile 
wireless uses for private, internal radio needs, two-way interactive, 
cellular, and mobile television broadcasting services. Wireless 
Telecommunications Carriers (except Satellite) is the closest industry 
with a SBA small business size standard applicable to licenses 
providing services in these bands. The SBA small business size standard 
for this industry classifies a business as small if it has 1,500 or 
fewer employees. U.S. Census Bureau data for 2017 show that there were 
2,893 firms that operated in this industry for the entire year. Of that 
number, 2,837 firms employed fewer than 250 employees. Thus, under the 
SBA size standard, the Commission estimates that a majority of 
licensees in this industry can be considered small.
    92. According to Commission data as of December 2021, there were 
approximately 152 active Upper 700 MHz Band licenses. The Commission's 
small business size standards with respect to Upper 700 MHz Band 
licensees involve eligibility for bidding credits and installment 
payments in the auction of licenses. For the auction of these licenses, 
the Commission defined a ``small business'' as an entity that, together 
with its affiliates and controlling principals, has average gross 
revenues not exceeding $40 million for the preceding three years, and a 
``very small business'' an entity that, together with its affiliates 
and controlling principals, has average gross revenues that are not 
more than $15 million for the preceding three years. Pursuant to these 
definitions, three winning bidders claiming very small business status 
won five of the twelve available licenses.
    93. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    94. Wireless Communications Services. Wireless Communications 
Services (WCS) can be used for a variety of fixed, mobile, 
radiolocation, and digital audio broadcasting satellite services. 
Wireless spectrum is made available and licensed for the provision of 
wireless communications services in several frequency bands subject to 
Part 27 of the Commission's rules. Wireless Telecommunications Carriers 
(except Satellite) is the closest industry with a SBA small business 
size standard applicable to these services. The SBA small business size 
standard for this industry classifies a business as small if it has 
1,500 or fewer employees. U.S. Census Bureau data for 2017 show that 
there were 2,893 firms that operated in this industry for the entire 
year. Of this number, 2,837 firms employed fewer than 250 employees. 
Thus, under the SBA size standard, the Commission estimates that a 
majority of licensees in this industry can be considered small.
    95. The Commission's small business size standards with respect to 
WCS involve eligibility for bidding credits and installment payments in 
the auction of licenses for the various frequency bands included in 
WCS. When bidding credits are adopted for the auction of licenses in 
WCS frequency bands, such credits may be available to several types of 
small businesses based average gross revenues (small, very small and 
entrepreneur) pursuant to the competitive bidding rules adopted in 
conjunction with the requirements for the auction and/or as identified 
in the designated entities section in Part 27 of the Commission's rules 
for the specific WCS frequency bands.
    96. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    97. Wireless Telephony. Wireless telephony includes cellular, 
personal communications services, and specialized mobile radio 
telephony carriers. The closest applicable industry with a SBA small 
business size standard is Wireless Telecommunications Carriers (except 
Satellite). The size standard for this industry under SBA rules is that 
a business is small if it has

[[Page 39782]]

1,500 or fewer employees. For this industry, U.S. Census Bureau data 
for 2017 show that there were 2,893 firms that operated for the entire 
year. Of this number, 2,837 firms employed fewer than 250 employees. 
Additionally, based on Commission data in the 2021 Universal Service 
Monitoring Report, as of December 31, 2020, there were 407 providers 
that reported they were engaged in the provision of cellular, personal 
communications services, and specialized mobile radio services. Of 
these providers, the Commission estimates that 333 providers have 1,500 
or fewer employees. Consequently, using the SBA's small business size 
standard, most of these providers can be considered small entities.
    98. Wireless Resellers. Neither the Commission nor the SBA have 
developed a small business size standard specifically for Wireless 
Resellers. The closest industry with a SBA small business size standard 
is Telecommunications Resellers. The Telecommunications Resellers 
industry comprises establishments engaged in purchasing access and 
network capacity from owners and operators of telecommunications 
networks and reselling wired and wireless telecommunications services 
(except satellite) to businesses and households. Establishments in this 
industry resell telecommunications and they do not operate transmission 
facilities and infrastructure. Mobile virtual network operators (MVNOs) 
are included in this industry. Under the SBA size standard for this 
industry, a business is small if it has 1,500 or fewer employees. U.S. 
Census Bureau data for 2017 show that 1,386 firms in this industry 
provided resale services during that year. Of that number, 1,375 firms 
operated with fewer than 250 employees. Thus, for this industry under 
the SBA small business size standard, the majority of providers can be 
considered small entities.
    99. Wireless Telecommunications Carriers (except Satellite). This 
industry comprises establishments engaged in operating and maintaining 
switching and transmission facilities to provide communications via the 
airwaves. Establishments in this industry have spectrum licenses and 
provide services using that spectrum, such as cellular services, paging 
services, wireless internet access, and wireless video services. The 
SBA size standard for this industry classifies a business as small if 
it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show 
that there were 2,893 firms in this industry that operated for the 
entire year. Of that number, 2,837 firms employed fewer than 250 
employees. Additionally, based on Commission data in the 2021 Universal 
Service Monitoring Report, as of December 31, 2020, there were 797 
providers that reported they were engaged in the provision of wireless 
services. Of these providers, the Commission estimates that 715 
providers have 1,500 or fewer employees. Consequently, using the SBA's 
small business size standard, most of these providers can be considered 
small entities.
    100. All Other Telecommunications. This industry is comprised of 
establishments primarily engaged in providing specialized 
telecommunications services, such as satellite tracking, communications 
telemetry, and radar station operation. This industry also includes 
establishments primarily engaged in providing satellite terminal 
stations and associated facilities connected with one or more 
terrestrial systems and capable of transmitting telecommunications to, 
and receiving telecommunications from, satellite systems. Providers of 
internet services (e.g. dial-up ISPs) or voice over internet protocol 
(VoIP) services, via client-supplied telecommunications connections are 
also included in this industry. The SBA small business size standard 
for this industry classifies firms with annual receipts of $35 million 
or less as small. U.S. Census Bureau data for 2017 show that there were 
1,079 firms in this industry that operated for the entire year. Of 
those firms, 1,039 had revenue of less than $25 million. Based on this 
data, the Commission estimates that the majority of ``All Other 
Telecommunications'' firms can be considered small.

E. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    101. The rule changes adopted in the Report and Order will impose 
new and/or modified reporting, recordkeeping, and other compliance 
obligations on some small entities and other providers. At this time, 
the Commission cannot quantify the cost of compliance or determine 
whether small entities will have to hire professional assistance to 
comply with the updated Priority Services Rules. However, because our 
approach to the rule changes adopted in this proceeding has been to 
take a flexible approach rather than adopting prescriptive rules and 
reporting requirements, we do not believe the compliance obligations 
for small entities will impose any significant costs or burdens.
    102. Telecommunications Service Priority. The Commission's TSP 
rules require certain service providers to prioritize the provisioning 
and restoration of communications facilities to ``ensure effective NSEP 
telecommunication services.'' The TSP rules apply, on a mandatory 
basis, to common carrier services and ``services which are provided by 
government and/or non-common carriers and are interconnected to common 
carrier services.'' Offering TSP is mandatory for wireline 
telecommunications providers, regardless of size. All service providers 
that are requested to provide NSEP prioritization which is paid for by 
the user not the provider, must offer it. Service providers that offer 
these services must also ``maintain and provision and, if disrupted, 
restore facilities and services'' in accordance with the prioritization 
levels outlined in the TSP rules.
    103. Under the amended rules adopted in the Report and Order, small 
entities and other service providers that offer NSEP priority service 
must: (1) promptly, which we define as ``without delay'', provide NSEP 
service when requested, at the priority level contracted for; (2) 
restore NSEP services which suffer outage or are reported as unusable 
or otherwise in need of restoration, before non-NSEP services, based on 
restoration priority level assignments; (3) respond to NSEP 
provisioning requests of authorized users and/or other service 
providers, and (4) cooperate with other service providers involved in 
provisioning or restoring a portion of an NSEP service by honoring 
provisioning or restoration priority level assignments.
    104. Small entities and other services providers are also subject 
to enhanced data protection requirements to prevent the unauthorized 
disclosure of sensitive information relating to TSP circuits. The rules 
we adopt in the Report and Order require small entities and other 
service providers to take all reasonable efforts to secure the 
confidentiality of TSP information that they maintain from unauthorized 
disclosure. Such efforts include storing this information in a location 
and with security safeguards that are reasonably designed to protect 
against lawful or unlawful disclosure to company employees or service 
providers without a legitimate need for this information, or other 
entities to which the disclosure of this information would pose a 
threat to the national security of the United States. Service providers 
are required to immediately report any attempts that are made to compel 
the disclosure of this information to the Commission and DHS and to 
coordinate with the FCC and DHS prior to such disclosure. In

[[Page 39783]]

emergency situations where providing prior notice is impracticable, 
service providers are required notify the FCC and DHS as soon as 
possible, but no later than 48 hours after such disclosure, and should 
an explanation why prior notice was not practicable when such notice is 
provided.
    105. Requiring providers to take reasonable efforts will allow 
providers greater flexibility to manage their networks while respecting 
the confidentiality of this data. We believe a reasonableness test that 
accounts for the sensitivity of the data is preferable to prescriptive 
rules. We also believe that while small entities and other providers 
will incur costs for our enhanced TSP data protection rules, these 
costs will be minimal and the benefits to national security will far 
exceed the costs that service providers may incur as a result of these 
requirements.
    106. Wireless Priority Service. Small and other wireless service 
providers are not required to offer WPS. The Commission's WPS rules 
permit, but do not require providers to offer mobile wireless priority 
services. Providers that offer WPS, offer the service pursuant to 
contractual arrangements with service users who like TSP users pay for 
the service and equipment costs. Providers that offer WPS, must also 
abide by the WPS rules promulgated by the Commission. Wireless service 
providers offering WPS must offer Priority Levels 1, 2, 3, 4, or 5. 
Priority Level 1 communications which are those made by the President 
of the United States, as well as certain other executive leaders and 
policymakers must be given the highest priority by WPS providers in 
relation to all other carrier-provided services.

F. Steps Taken To Minimize the Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    107. The RFA requires an agency to describe any significant 
specifically small business alternatives that it has considered in 
reaching its approach, which may include the following four 
alternatives (among others): (1) the establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance or 
reporting requirements under the rule for such small entities; (3) the 
use of performance, rather than design, standards, and (4) an exemption 
from coverage of the rule, or any part thereof, for such small 
entities.
    108. In the Report and Order, the Commission removed existing 
regulatory burdens, and declined to adopt several of the actions 
requested by NTIA, and in comments in response to the NPRM, that would 
have significantly increased the economic burden on small entities. As 
a preliminary matter, in updating and streamlining its priority 
services rules with adoption of rules applying to both TSP and WPS 
(e.g., updating the Commission's responsibilities for the priority 
services programs and clarifying that service providers are authorized 
to offer prioritization of next-generation services and technologies, 
including IP-based voice, data, and video communications), the 
Commission created greater efficiencies by combining rules applicable 
to both TSP and WPS service providers to the extent that it was 
possible. The Commission believes creating this greater efficiency 
could lower compliance costs for small entities.
    109. The Commission's approach in this proceeding was to provide 
small entities and other service providers flexibility, evidenced for 
example by its adoption of the reasonableness test requiring service 
providers to take all reasonable efforts to protect the confidentiality 
of TSP data, rather than imposing prescriptive requirements on small 
entities and other service providers which could have increased their 
compliance costs. The Commission also considered but ultimately did not 
adopt recordkeeping and reporting rules that would have place a 
significant financial burden on small entities. Specifically, if 
adopted the proposed rules would have created additional reporting 
burdens on by requiring NSEP service providers (both TSP and WPS) to 
report to DHS provisioning and restoration times for TSP circuits in 
areas covered by the activation of the Disaster Information Reporting 
System (DIRS), and to aggregate data that would allow DHS to compare 
the data for TSP and WPS services to similar data for non-TSP and non-
WPS services. Instead of ultimately adopting this proposal, the 
Commission suggested that DHS enter into voluntary contractual 
arrangements with NSEP service providers, including small entities, to 
acquire the necessary data and information. The Commission believes the 
potential benefit of such reporting requirements was outweighed by 
questions of cost, efficacy, and the utility of these requirements, and 
therefore declined to adopt these provisions in the final rules.
    110. The Commission also declined to adopt an alternative approach 
to the TSP and WPS requirements which would have had the Commission 
essentially completely remove itself from the priority services field--
the ``GETS model'' approach. This approach would make TSP and WPS 
prioritization resemble the wholly-contractual Government Emergency 
Telecommunications Service (GETS). The GETS program, for which the 
Commission does not have rules, provides prioritization through the 
Public Switched Telephone Network for over 330,600 GETS card holders 
and operates solely via contractual arrangements with DHS. Because of 
the critical role of the priority services programs in supporting the 
NSEP posture of the United States, the Commission believes that NSEP 
rules remain necessary to establish baseline standards for these 
programs. The Commission notes that eliminating the rules would remove 
the liability protections for service providers which could discourage 
small entities and other service providers from participating in the 
programs. The Commission also notes that the elimination of the TSP 
rules would end the mandatory nature of the program for common 
carriers, thereby making participation in TSP completely voluntary for 
all service providers, which we find is not in the public interest. 
Accordingly, the Commission did not adopt this proposed approach.

VI. Ordering Clauses

    111. Accordingly, it is ordered that, pursuant to the authority 
contained in sections 1, 4(i), 4(j), 4(n), 201-205, 251(e)(3), 254, 
301, 303(b), 303(g), 303(r), 307, 308(a), 309(a), 309(j), 316, 332, 
403, 615(a)(1), 615(c), and 706 of the Communications Act of 1934, as 
amended, codified at 47 U.S.C. 151, 154(i)-(j) & (n), 201-205, 
251(e)(3), 254, 301, 303(b), 303(g), 303(r), 307, 308(a), 309(a), 
309(j), 316, 332, 403, 606, 615(a)(1), 615(c); and Executive Order 
13618, this Report and Order is adopted.
    112. It is further ordered that part 64 of the Commission's rules 
is amended, as set forth in Appendix A and Appendix B, effective thirty 
(30) days after publication in the Federal Register.
    113. It is further ordered that the Office of the Managing 
Director, Performance Evaluation and Records Management, shall send a 
copy of this Report & Order in a report to be sent to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act, 5 U.S.C. 801(a)(1)(A).

[[Page 39784]]

List of Subjects in 47 CFR Part 64

    Communications, Communications common carriers, Communications 
equipment, Computer technology, Emergency preparedness, internet, 
Priority access, Priority services, Provisioning, Radio, Restoration, 
Telecommunications, Telephone.

Federal Communications Commission.
Marlene Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 64 as follows:

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

0
1. The authority citation for part 64 continues to read as follows:

    Authority: 47 U.S.C. 151, 152, 154, 201, 202, 217, 218, 220, 
222, 225, 226, 227, 227b, 228, 251(a), 251(e), 254(k), 255, 262, 
276, 403(b)(2)(B), (c), 616, 620, 716, 1401-1473, unless otherwise 
noted; Pub. L. 115-141, Div. P, sec. 503, 132 Stat. 348, 1091.


0
2. Revise Sec.  64.402 to read as follows:


Sec.  64.402   Policies and procedures for the provision of Wireless 
Priority Service by wireless service providers.

    Wireless service providers that elect to provide Wireless Priority 
Service to National Security and Emergency Preparedness personnel shall 
provide Wireless Priority Service in accordance with the policies and 
procedures set forth in appendix B to this part.

0
3. Revise appendix A to part 64 to read as follows:

Appendix A to Part 64--Telecommunications Service Priority (TSP) System 
for National Security Emergency Preparedness (NSEP)

1. Purpose and Authority

    a. This appendix establishes rules, policies, and procedures and 
outlines responsibilities for the National Security Emergency 
Preparedness (NSEP) Telecommunications Service Priority (TSP) 
System. The NSEP TSP System authorizes priority treatment to certain 
telecommunications services and internet Protocol-based services, 
including voice, data, and video services, for which provisioning or 
restoration priority levels are requested, assigned, and approved in 
accordance with this appendix.
    b. This appendix is issued pursuant to sections 1, 4(i), 4(j), 
4(n), 201-205, 251(e)(3), 254, 301, 303(b), 303(g), 303(r), 307, 
308(a), 309(a), 309(j), 316, 332, 403, 615a-1, 615c, and 706 of the 
Communications Act of 1934, as amended, codified at 47 U.S.C. 151, 
154(i)-(j), (n), 201-205, 251(e)(3), 254, 301, 303(b), 303(g), 
303(r), 307, 308(a), 309(a), 309(j), 316, 332, 403, 615a-1, 615c, 
606; and Executive Order 13618. These authorities grant to the 
Federal Communications Commission (FCC) the authority over the 
assignment and approval of priorities for provisioning and 
restoration of telecommunications services and internet Protocol-
based services (NSEP services). Under section 706 of the 
Communications Act, this authority may be superseded, and the 
mandatory provisions of this section may be expanded to include non-
common carrier telecommunications services, by the war emergency 
powers of the President of the United States.
    c. This appendix establishes rules for provisioning and 
restoration of NSEP services both before and after invocation of the 
President's war emergency powers. The rules, regulations, and 
procedures outlined in this appendix must be applied on a day-to-day 
basis to all NSEP services that are eligible for TSP so that the 
priorities they establish can be implemented when the need arises.

2. Definitions

    As used in this appendix:
    a. Assignment means the designation of priority level(s) for a 
defined NSEP telecommunications service or internet Protocol-based 
service for a specified time period.
    b. Audit means a quality assurance review in response to 
identified problems.
    c. Government refers to the Federal government or any foreign, 
state, county, municipal or other local government agency or 
organization. Specific qualifications will be supplied whenever 
reference to a particular level of government is intended (e.g., 
``Federal government,'' ``state government''). ``Foreign 
government'' means any sovereign empire, kingdom, state, or 
independent political community, including foreign diplomatic and 
consular establishments and coalitions or associations of 
governments (e.g., North Atlantic Treaty Organization (NATO), 
Southeast Asian Treaty Organization (SEATO), Organization of 
American States (OAS), and government agencies or organization 
(e.g., Pan American Union, International Postal Union, and 
International Monetary Fund)).
    d. Internet Protocol-based services refers to services and 
applications that feature digital communications capabilities and 
which generally use the internet Protocol.
    e. Invocation Official refers to an individual who (1) 
understands how the requested service ties to the organization's 
NSEP mission; (2) is authorized to approve the expenditure of funds 
necessary for the requested service; and (3) has operational 
responsibilities for telecommunications procurement and/or 
management within the organization.
    f. National Coordinating Center for Communications (NCC) refers 
to the joint telecommunications industry-Federal government 
operation that assists in the initiation, coordination, restoration, 
and reconstitution of NSEP telecommunications services or 
facilities.
    g. National Security Emergency Preparedness (NSEP) services, or 
``NSEP services,'' means telecommunications services or internet 
Protocol-based services which are used to maintain a state of 
readiness or to respond to and manage any event or crisis (local, 
national, or international), which causes or could cause injury or 
harm to the population, damage to or loss of property, or degrades 
or threatens the NSEP posture of the United States. These services 
fall into two specific categories, Emergency NSEP and Essential 
NSEP, and are assigned priority levels pursuant to section 8 of this 
appendix.
    h. NSEP treatment refers to the provisioning of a specific NSEP 
service before others based on the provisioning priority level 
assigned by DHS.
    i. Priority action means assignment, revision, revocation, or 
revalidation by DHS of a priority level associated with an NSEP 
service.
    j. Priority level means the level that may be assigned to an 
NSEP service specifying the order in which provisioning or 
restoration of the service is to occur relative to other NSEP and/or 
non-NSEP telecommunications services. Priority levels authorized by 
this appendix are designated highest to lowest: E, 1, 2, 3, 4, and 
5, for provisioning and 1, 2, 3, 4, and 5, for restoration.
    k. Priority level assignment means the priority level(s) 
designated for the provisioning and/or restoration of a specific 
NSEP service under section 8 of this appendix.
    l. Private NSEP services include non-common carrier 
telecommunications services.
    m. Promptly means without delay.
    n. Provisioning means the act of supplying service to a user, 
including all associated transmission, wiring, and equipment. As 
used herein, ``provisioning'' and ``initiation'' are synonymous and 
include altering the state of an existing priority service or 
capability.
    o. Public switched NSEP services include those NSEP services 
using public switched networks.
    p. Reconciliation means the comparison of NSEP service 
information and the resolution of identified discrepancies.
    q. Restoration means the repair or returning to service of one 
or more services that have experienced a service outage or are 
unusable for any reason, including a damaged or impaired facility. 
Such repair or returning to service may be done by patching, 
rerouting, substitution of component parts or pathways, and other 
means, as determined necessary by a service provider.
    r. Revalidation means the re-justification by a service user of 
a priority level assignment. This may result in extension by DHS of 
the expiration date associated with the priority level assignment.
    s. Revision means the change of priority level assignment for an 
NSEP service. This includes any extension of an existing priority 
level assignment to an expanded NSEP service.
    t. Revocation means the elimination of a priority level 
assignment when it is no longer valid. All priority level 
assignments for an NSEP service are revoked upon service 
termination.
    u. Service identification refers to the information uniquely 
identifying an NSEP

[[Page 39785]]

service to the service provider and/or service user.
    v. Service user refers to any individual or organization 
(including a service provider) supported by an NSEP service for 
which a priority level has been requested or assigned pursuant to 
section 7 or 8 of this appendix.
    w. Service provider refers to a provider of telecommunications 
services or internet Protocol-based services. The term includes 
resale carriers, prime contractors, subcontractors, and 
interconnecting carriers.
    x. Spare circuits or services refers to those not being used or 
contracted for by any customer.
    y. Sponsoring Federal organization refers to a Federal agency 
that determines eligibility for participation in the TSP Program for 
non-Federal (state, local, tribal, and foreign governments and 
private sector) organizations. A sponsor can be any Federal agency 
with which a non-Federal user may be affiliated. The sponsoring 
Federal agency ensures the service supports an NSEP function and 
merits TSP participation.
    z. Telecommunications services means the offering of 
telecommunications for a fee directly to the public, or to such 
classes of users as to be effectively available directly to the 
public, regardless of the facilities used.

3. Scope

    a. Service providers.
    (1) This appendix applies to the provision and restoration of 
certain telecommunications services or internet Protocol-based 
services for which priority levels are requested, assigned, and 
approved pursuant to section 8 of this appendix.
    (2) Common carriers and providers of any services that are 
interconnected to common carrier services must offer prioritized 
provisioning and restoration of circuit-switched voice communication 
services. Any service provider may, on a voluntary basis, offer 
prioritized provisioning and restoration of data, video, and IP-
based voice services.
    b. Eligible services. The NSEP TSP System and procedures 
established by this appendix authorize priority treatment to the 
following domestic services (including portions of U.S. 
international services offered by U.S. service providers) for which 
provisioning or restoration priority levels are requested, assigned, 
and approved in accordance with this appendix:
    (1) Common carrier services which are:
    (a) Interstate or foreign telecommunications services,
    (b) Intrastate telecommunications services inseparable from 
interstate or foreign telecommunications services, and intrastate 
telecommunications services to which priority levels are assigned 
pursuant to section 8 of this appendix.
    (2) Services which are provided by government and/or non-common 
carriers and are interconnected to common carrier services assigned 
a priority level pursuant to section 8 of this appendix.
    c. Control services and orderwires. The NSEP TSP System and 
procedures established by this appendix are not applicable to 
authorize priority treatment to control services or orderwires owned 
by a service provider and needed for provisioning, restoration, or 
maintenance of other services owned by that service provider, e.g., 
the signaling path(s) or control plane services used by a service 
provider's technical staff to control, coordinate, and direct 
network operations. Such control services and orderwires shall have 
priority provisioning and restoration over all other services 
(including NSEP services) and shall be exempt from preemption. 
However, the NSEP TSP System and procedures established by this 
appendix are applicable to control services or orderwires leased by 
a service provider.
    d. Other services. The NSEP TSP System may apply, at the 
discretion of and upon special arrangements by service users 
involved, to authorize priority treatment to the following services:
    (1) Government or non-common carrier services which are not 
connected to common carrier provided services assigned a priority 
level pursuant to section 8 of this appendix.
    (2) Portions of U.S. international services which are provided 
by foreign correspondents. (U.S. service providers are encouraged to 
ensure that relevant operating arrangements are consistent to the 
maximum extent practicable with the NSEP TSP System. If such 
arrangements do not exist, U.S. service providers should handle 
service provisioning and/or restoration in accordance with any 
system acceptable to their foreign correspondents which comes 
closest to meeting the procedures established in this appendix.)

4. Policy

    The NSEP TSP System is the regulatory, administrative, and 
operational system authorizing and providing for priority treatment, 
i.e., provisioning and restoration, of NSEP services. As such, it 
establishes the framework for service providers to provision, 
restore, or otherwise act on a priority basis to ensure effective 
NSEP services. The NSEP TSP System allows the assignment of priority 
levels to any NSEP service across three time periods, or stress 
conditions: Peacetime/Crisis/Mobilizations, Attack/War, and Post-
Attack/Recovery. Although priority levels normally will be assigned 
by DHS and retained by service providers only for the current time 
period, they may be preassigned for the other two time periods at 
the request of service users who are able to identify and justify in 
advance, their wartime or post-attack NSEP requirements. Absent such 
preassigned priority levels for the Attack/War and Post-Attack/
Recovery periods, priority level assignments for the Peacetime/
Crisis/Mobilization period will remain in effect. At all times, 
priority level assignments will be subject to revision by the FCC or 
(on an interim basis) DHS, based upon changing NSEP needs. No other 
system of service priorities which conflicts with the NSEP TSP 
System is authorized by this appendix.

5. Responsibilities

    a. The FCC:
    (1) Provides regulatory oversight of the NSEP TSP System.
    (2) Enforces NSEP TSP System rules and regulations which are 
contained in this appendix.
    (3) Performs such functions as are required by law, including:
    (a) with respect to all entities licensed or regulated by the 
FCC: the extension of or change in network facilities; the 
discontinuance, reduction, or impairment of interstate services; the 
control of common carrier rates, charges, practices, and 
classifications; the construction, authorization, activation, 
deactivation, or closing of radio stations, services, and 
facilities; the assignment of radio frequencies to licensees; the 
investigation of violations of FCC rules; and the assessment of 
communications service provider emergency needs and resources; and
    (b) supports the continuous operation and restoration of 
critical communications systems and services by assisting the 
Secretary of Homeland Security with infrastructure damage assessment 
and restoration, and by providing the Secretary of Homeland Security 
with information collected by the FCC on communications 
infrastructure, service outages, and restoration, as appropriate.
    (4) Functions (on a discretionary basis) as a sponsoring Federal 
organization. (See section 5.b below.)
    b. Sponsoring Federal organizations:
    (1) Review and decide whether to sponsor foreign, state, and 
local government and private industry (including service providers) 
requests for priority actions. Federal organizations forward 
sponsored requests with recommendations for disposition to DHS. Such 
recommendations are based on the categories and criteria in section 
10 of this appendix.
    (2) Forward notification of priority actions or denials of 
requests for priority actions from DHS to the requesting foreign, 
state, and local government and private industry entities.
    (3) Cooperate with DHS during reconciliation, revalidation, and 
audits.
    c. Service users:
    (1) Identify services requiring priority level assignments and 
request and justify priority level assignments in accordance with 
this appendix.
    (2) Request and justify revalidation of all priority level 
assignments at least every three years.
    (3) For services assigned priority levels, ensure (through 
contractual means or otherwise) availability of customer premises 
equipment and wiring necessary for end-to-end service operation by 
the service due date, and continued operation; and, for such 
services in the Emergency NSEP category, by the time that providers 
are prepared to provide the services. Additionally, designate the 
organization responsible for the service on an end-to-end basis.
    (4) Prepare to accept services assigned priority levels by the 
service due dates or, for services in the Emergency NSEP category, 
when they are available.
    (5) Pay providers any authorized costs associated with services 
that are assigned priority levels.
    (6) Report to providers any failed or unusable services that are 
assigned priority levels.

[[Page 39786]]

    (7) Designate a 24-hour point-of-contact for matters concerning 
each request for priority action and apprise DHS thereof.
    (8) Upon termination of services that are assigned priority 
levels, or circumstances warranting revisions in priority level 
assignment (e.g., expansion of service), request and justify 
revocation or revision.
    (9) When NSEP treatment is invoked under section 8(c) of this 
appendix, within 90 days following provisioning of the service 
involved, forward to the Priority Services Program Office complete 
information identifying the time and event associated with the 
invocation and regarding whether the NSEP service requirement was 
adequately handled and whether any additional charges were incurred.
    (10) Cooperate with DHS during reconciliation, revalidation, and 
audits.
    (11) Comply with DHS policies and procedures that are consistent 
with this appendix.
    d. Non-federal service users, in addition to responsibilities 
described above in section 5.c, obtain a sponsoring Federal 
organization for all requests for priority actions. If unable to 
find a sponsoring Federal organization, a non-federal service user 
may submit its request, which must include documentation of attempts 
made to obtain a sponsor and reasons given by the sponsor for its 
refusal, directly to DHS.
    e. Service providers:
    (1) When NSEP treatment is invoked by service users, provision 
NSEP services before non-NSEP services, based on priority level 
assignments made by DHS. Service providers must:
    (a) Promptly provide NSEP services. When limited resources 
constrain response capability, providers will address conflicts for 
resources by:
    (i) Providing NSEP services in order of provisioning priority 
level assignment, from highest (``E'') to lowest (``5'');
    (ii) Providing Emergency NSEP services (i.e., those assigned 
provisioning priority level ``E'') in order of receipt of the 
service requests;
    (iii) Providing Essential NSEP services that have the same 
provisioning priority level in order of service due dates; and
    (iv) Referring any conflicts which cannot be resolved (to the 
mutual satisfaction of service providers and users) to DHS for 
resolution.
    (b) Comply with NSEP service requests by:
    (i) Promptly providing Emergency NSEP services, dispatching 
outside normal business hours when necessary;
    (ii) Promptly meeting requested service dates for Essential NSEP 
services, negotiating a mutually (authorized user and provider) 
acceptable service due date when the requested service due date 
cannot be met; and
    (2) Restore NSEP services which suffer outage or are reported as 
unusable or otherwise in need of restoration, before non-NSEP 
services, based on restoration priority level assignments. (Note: 
For broadband or multiple service facilities, restoration is 
permitted even though it might result in restoration of services 
assigned to lower priority levels along with, or sometimes ahead of, 
some higher priority level services.) Restoration will require 
service providers to restore NSEP services in order of restoration 
priority level assignment'') by:
    (a) Promptly restoring NSEP services by dispatching outside 
normal business hours to restore services assigned Priority Level 1, 
2, or 3, when necessary, and services assigned Priority Level 4 or 5 
when the next business day is more than 24 hours away;
    (b) Restoring NSEP services assigned the same restoration 
priority level based upon which service can be first restored. 
(However, restoration actions in progress should not normally be 
interrupted to restore another NSEP service assigned the same 
restoration priority level);
    (c) Patching and/or rerouting NSEP services assigned restoration 
priority levels when use of patching and/or rerouting will hasten 
restoration; and
    (d) Referring any conflicts which cannot be resolved (to the 
mutual satisfaction of service providers and users) to DHS for 
resolution.
    (3) Respond to provisioning requests of authorized users and/or 
other service providers, and to restoration priority level 
assignments when an NSEP service suffers an outage or is reported as 
unusable, by:
    (a) Ensuring that provider personnel understand their 
responsibilities to handle NSEP provisioning requests and to restore 
NSEP service;
    (b) Providing a 24-hour point-of-contact for receiving 
provisioning requests for Emergency NSEP services and reports of 
NSEP service outages or unusability; and
    (c) Seeking verification from an authorized entity if legitimacy 
of a priority level assignment or provisioning request for an NSEP 
service is in doubt. However, processing of Emergency NSEP service 
requests will not be delayed for verification purposes.
    (4) Cooperate with other service providers involved in 
provisioning or restoring a portion of an NSEP service by honoring 
provisioning or restoration priority level assignments, or requests 
for assistance to provision or restore NSEP services.
    (5) All service providers, including resale carriers, are 
required to ensure that service providers supplying underlying 
facilities are provided information necessary to implement priority 
treatment of facilities that support NSEP services.
    (6) Preempt, when necessary, existing services to provide an 
NSEP service as authorized in section 6 of this appendix.
    (7) Assist in ensuring that priority level assignments of NSEP 
services are accurately identified ``end-to-end'' by:
    (a) Seeking verification from an authorized Federal government 
entity if the legitimacy of the restoration priority level 
assignment is in doubt;
    (b) Providing to subcontractors and/or interconnecting carriers 
the restoration priority level assigned to a service;
    (c) Supplying, to DHS, when acting as a prime contractor to a 
service user, confirmation information regarding NSEP service 
completion for that portion of the service they have contracted to 
supply;
    (d) Supplying, to DHS, NSEP service information for the purpose 
of reconciliation;
    (e) Cooperating with DHS during reconciliation; and
    (f) Periodically initiating reconciliation with their 
subcontractors and arranging for subsequent subcontractors to 
cooperate in the reconciliation process.
    (8) Receive compensation for costs authorized through tariffs or 
contracts by:
    (a) Provisions contained in properly filed state or Federal 
tariffs; or
    (b) Provisions of properly negotiated contracts where the 
carrier is not required to file tariffs.
    (9) Provision or restore only the portions of services for which 
they have agreed to be responsible (i.e., have contracted to 
supply), unless the President's war emergency powers under section 
706 of the Communications Act are in effect.
    (10) Cooperate with DHS during audits.
    (11) Comply with DHS policies or procedures that are consistent 
with this appendix.
    (12) Ensure that at all times a reasonable number of public 
switched network services are made available for public use.
    (13) Do not disclose information concerning NSEP services they 
provide to those not having a need-to-know or that might use the 
information for competitive advantage.
    (14) Take all reasonable efforts to secure the confidentiality 
of TSP information from unauthorized disclosure, including by 
storing such information in a location and with security safeguards 
that are reasonably designed to protect against lawful or unlawful 
disclosure to company employees or service providers without a 
legitimate need for this information, or other entities to which the 
disclosure of this information would pose a threat to the national 
security of the United States. Service providers will immediately 
notify the FCC and DHS of any attempt to compel the disclosure of 
this information and will coordinate with the FCC and DHS prior to 
such disclosure. In emergency situations where prior notice is 
impracticable, service providers will notify the FCC and DHS as soon 
as possible, but no later than 48 hours after such disclosure, and 
should accompany such notice with an explanation why prior notice 
was not practicable.
    (15) Comply with all relevant Commission rules regarding TSP.

6. Preemption of Existing Services

    When necessary to provision or restore NSEP services, service 
providers may preempt services they provide as specified below. 
``Service user'' as used in this section means any user of a 
telecommunications service or internet Protocol-based service, 
including both NSEP and non-NSEP services. Prior consent by a 
preempted user is not required.
    a. Existing services may be preempted to provision NSEP services 
assigned Priority Level E or restore NSEP services assigned Priority 
Level 1 through 5 according to the following sequence:
    (1) Non-NSEP services: If suitable spare services are not 
available, non-NSEP services will be preempted. After ensuring a 
sufficient number of public switched services are

[[Page 39787]]

available for public use, based on the service provider's best 
judgment, such services may be used to satisfy a requirement for 
provisioning or restoring NSEP services.
    (2) NSEP services: If no suitable spare services or non-NSEP 
services are available, existing NSEP services may be preempted to 
provision or restore NSEP services with higher priority level 
assignments. When this is necessary, NSEP services will be selected 
for preemption in the inverse order of priority level assignment.
    (3) Service providers who are preempting services will ensure 
their best effort to notify the service user of the preempted 
service and state the reason for and estimated duration of the 
preemption.
    b. Service providers may, based on their best judgment, 
determine the sequence in which existing services may be preempted 
to provision NSEP services assigned Priority Level 1 through 5. 
Preemption is not subject to the consent of the user whose service 
will be preempted.

7. Requests for Priority Assignments

    All service users are required to submit requests for priority 
assignments to DHS in the format and following the procedures that 
DHS prescribes.

8. Assignment, Approval, Use, and Invocation of Priority Levels

    a. Assignment and approval of priority levels. Priority level 
assignments will be based upon the categories and criteria specified 
in section 10 of this appendix. After invocation of the President's 
war emergency powers, these requirements may be superseded by other 
procedures issued by DHS.
    b. Use of priority level assignments.
    (1) All provisioning and restoration priority level assignments 
for services in the Emergency NSEP category will be included in 
initial service orders to providers. Provisioning priority level 
assignments for Essential NSEP services, however, will not usually 
be included in initial service orders to providers. NSEP treatment 
for Essential NSEP services will be invoked and provisioning 
priority level assignments will be conveyed to service providers 
only if the providers cannot meet needed service dates through the 
normal provisioning process.
    (2) Any revision or revocation of either provisioning or 
restoration priority level assignments will also be transmitted to 
providers.
    (3) Service providers shall accept priority levels and/or 
revisions only after assignment by DHS.

    Note: Service providers acting as prime contractors will accept 
assigned NSEP priority levels only when they are accompanied by the 
DHS designated service identification (i.e., TSP Authorization 
Code). However, service providers are authorized to accept priority 
levels and/or revisions from users and contracting activities before 
assignment by DHS when service providers, users, and contracting 
activities are unable to communicate with either the FCC or DHS. 
Processing of Emergency NSEP service requests will not be delayed 
for verification purposes.

    c. Invocation of NSEP treatment. To invoke NSEP treatment for 
the priority provisioning of an NSEP service, an authorized federal 
employee within, or acting on behalf of, the service user's 
organization must make a declaration to concerned service 
provider(s) and DHS that NSEP treatment is being invoked. An 
authorized invocation official is one who (1) understands how the 
requested service ties to the organization's NSEP mission; (2) is 
authorized to approve the expenditure of funds necessary for the 
requested service; and (3) has operational responsibilities for 
telecommunications procurement and/or management within the 
organization.

9. Appeal

    Service users or sponsoring Federal organizations may appeal any 
priority level assignment, denial, revision, revocation, approval, 
or disapproval to DHS within 30 days of notification to the service 
user. The appellant must use the form or format required by DHS and 
must serve the FCC with a copy of its appeal. Service users and 
sponsoring Federal organizations may only appeal directly to the FCC 
after DHS action on the appeal. Such FCC appeal must be filed within 
30 days of notification of DHS's decision on appeal. Additionally, 
DHS may appeal any FCC revisions, approvals, or disapprovals to the 
FCC. All appeals to the FCC must be submitted using the form or 
format required. The party filing its appeal with the FCC must 
include factual details supporting its claim and must serve a copy 
on DHS and any other party directly involved. Such party may file a 
response within 20 days, and replies may be filed within 10 days 
thereafter. The Commission will not issue public notices of such 
submissions. The Commission will provide notice of its decision to 
the parties of record. Any appeals to DHS that include a claim of 
new information that has not been presented before for consideration 
may be submitted at any time.

10. Categories, Criteria, and Priority Levels

    a. General. NSEP TSP System categories and criteria, and 
permissible priority level assignments, are defined and explained 
below.
    (1) The Essential NSEP category has four subcategories: National 
Security Leadership; National Security Posture and U.S. Population 
Attack Warning; Public Health, Safety, and Maintenance of Law and 
Order; and Public Welfare and Maintenance of National Economic 
Posture. Each subcategory has its own criteria. Criteria are also 
shown for the Emergency NSEP category, which has no sub-categories.
    (2) Priority Levels 1, 2, 3, 4, and 5 may be assigned for 
provisioning and/or restoration of Essential NSEP services. However, 
for Emergency NSEP services, Priority Level E is assigned for 
provisioning, and Priority Levels 1, 2, 3, 4, and 5 may be assigned 
for restoration of Emergency NSEP services.
    (3) The NSEP TSP System allows the assignment of priority levels 
to any NSEP service across three time periods, or stress conditions: 
Peacetime/Crisis/Mobilization, Attack/War, and Post-Attack/Recovery. 
It is expected that priority levels may be revised within the three 
time periods by surviving authorized resource managers within DHS 
based upon specific facts and circumstances.
    (4) Service users may, for their own internal use, assign sub-
priorities to their services assigned priority levels. Receipt of 
and response to any such sub-priorities is optional for service 
providers.
    (5) The following paragraphs provide a detailed explanation of 
the categories, subcategories, criteria, and priority level 
assignments, beginning with the Emergency NSEP category.
    b. Emergency NSEP. Services in the Emergency NSEP category are 
those new services so critical as to be required to be provisioned 
at the earliest possible time, without regard to the costs of 
obtaining them.
    (1) Criteria. To qualify under the Emergency NSEP category, the 
service must meet criteria directly supporting or resulting from at 
least one of the following NSEP functions:
    (a) Federal government activity responding to a Presidentially 
declared disaster or emergency as defined in the Disaster Relief Act 
(42 U.S.C. 5122).
    (b) State or local government activity responding to a 
Presidentially declared disaster or emergency.
    (c) Response to a state of crisis declared by the National 
Command Authorities (e.g., exercise of Presidential war emergency 
powers under section 706 of the Communications Act.)
    (d) Efforts to protect endangered U.S. personnel or property.
    (e) Response to an enemy or terrorist action, civil disturbance, 
natural disaster, or any other unpredictable occurrence that has 
damaged facilities whose uninterrupted operation is critical to NSEP 
or the management of other ongoing crises.
    (f) Certification by the head or director of a Federal agency, 
commander of a unified/specified command, chief of a military 
service, or commander of a major military command, that the service 
is so critical to protection of life and property or to NSEP that it 
must be provided immediately.
    (g) A request from an official authorized pursuant to the 
Foreign Intelligence Surveillance Act (50 U.S.C. 1801 et seq. and 18 
U.S.C. 2511, 2518, 2519).
    (2) Priority Level Assignment.
    (a) Services qualifying under the Emergency NSEP category are 
assigned Priority Level E for provisioning.
    (b) After 30 days, assignments of Priority Level E for Emergency 
NSEP services are automatically revoked unless extended for another 
30-day period. A notice of any such revocation will be sent to 
service providers.
    (c) For restoration, Emergency NSEP services may be assigned 
priority levels under the provisions applicable to Essential NSEP 
services (see section 10(c)). Emergency NSEP services not otherwise 
qualifying for restoration priority level assignment as Essential 
NSEP may be assigned Priority Level 5 for a 30-day period. Such 30-
day restoration priority level assignment will be revoked 
automatically unless extended for another 30-day period. A notice of 
any such revocation will be sent to service providers.

[[Page 39788]]

    c. Essential NSEP. Services in the Essential NSEP category are 
those required to be provisioned by due dates specified by service 
users, or restored promptly, normally without regard to associated 
overtime or expediting costs. They may be assigned Priority Level 1, 
2, 3, 4, or 5 for both provisioning and restoration, depending upon 
the nature and urgency of the supported function, the impact of lack 
of service or of service interruption upon the supported function, 
and, for priority access to public switched services, the user's 
level of responsibility. Priority level assignments will be valid 
for no more than three years unless revalidated. To be categorized 
as Essential NSEP, a service must qualify under one of the four 
following subcategories: National Security Leadership; National 
Security Posture and U.S. Population Attack Warning; Public Health, 
Safety and Maintenance of Law and Order; or Public Welfare and 
Maintenance of National Economic Posture. (Note: Under emergency 
circumstances, Essential NSEP services may be recategorized as 
Emergency NSEP and assigned Priority Level E for provisioning.)
    (1) National security leadership. This subcategory is strictly 
limited to only those NSEP services essential to national survival 
if nuclear attack threatens or occurs, and critical orderwire and 
control services necessary to ensure the rapid and efficient 
provisioning or restoration of other NSEP services. Services in this 
subcategory are those for which a service interruption of even a few 
minutes would have serious adverse impact upon the supported NSEP 
function.
    (a) Criteria. To qualify under this subcategory, a service must 
be at least one of the following:
    (i) Critical orderwire, or control services, supporting other 
NSEP functions.
    (ii) Presidential communications service critical to continuity 
of government and national leadership during crisis situations.
    (iii) National command authority communications service for 
military command and control critical to national survival.
    (iv) Intelligence communications service critical to warning of 
potentially catastrophic attack.
    (v) Communications service supporting the conduct of diplomatic 
negotiations critical to arresting or limiting hostilities.
    (b) Priority level assignment. Services under this subcategory 
will normally be assigned Priority Level 1 for provisioning and 
restoration during the Peace/Crisis/Mobilization time period.
    (2) National security posture and U.S. population attack 
warning. This subcategory covers additional NSEP services that are 
essential to maintaining an optimum defense, diplomatic, or 
continuity-of-government postures before, during, and after crises 
situations. Such situations are those ranging from national 
emergencies to international crises, including nuclear attack. 
Services in this subcategory are those for which a service 
interruption ranging from a few minutes to one day would have 
serious adverse impact upon the supported NSEP function.
    (a) Criteria. To qualify under this subcategory, a service must 
support at least one of the following NSEP functions:
    (i) Threat assessment and attack warning.
    (ii) Conduct of diplomacy.
    (iii) Collection, processing, and dissemination of intelligence.
    (iv) Command and control of military forces.
    (v) Military mobilization.
    (vi) Continuity of Federal government before, during, and after 
crises situations.
    (vii) Continuity of state and local government functions 
supporting the Federal government during and after national 
emergencies.
    (viii) Recovery of critical national functions after crises 
situations.
    (ix) National space operations.
    (b) Priority level assignment. Services under this subcategory 
will normally be assigned Priority Level 2, 3, 4, or 5 for 
provisioning and restoration during Peacetime/Crisis/Mobilization.
    (3) Public health, safety, and maintenance of law and order. 
This subcategory covers NSEP services necessary for giving civil 
alert to the U.S. population and maintaining law and order and the 
health and safety of the U.S. population in times of any national, 
regional, or serious local emergency. These services are those for 
which a service interruption ranging from a few minutes to one day 
would have serious adverse impact upon the supported NSEP functions.
    (a) Criteria. To qualify under this subcategory, a service must 
support at least one of the following NSEP functions:
    (i) Population warning (other than attack warning).
    (ii) Law enforcement.
    (iii) Continuity of critical state and local government 
functions (other than support of the Federal government during and 
after national emergencies).
    (vi) Hospitals and distributions of medical supplies.
    (v) Critical logistic functions and public utility services.
    (vi) Civil air traffic control.
    (vii) Military assistance to civil authorities.
    (viii) Defense and protection of critical industrial facilities.
    (ix) Critical weather services.
    (x) Transportation to accomplish the foregoing NSEP functions.
    (b) Priority level assignment. Service under this subcategory 
will normally be assigned Priority Levels 3, 4, or 5 for 
provisioning and restoration during Peacetime/Crisis/Mobilization.
    (4) Public welfare and maintenance of national economic posture. 
This subcategory covers NSEP services necessary for maintaining the 
public welfare and national economic posture during any national or 
regional emergency. These services are those for which a service 
interruption ranging from a few minutes to one day would have 
serious adverse impact upon the supported NSEP function.
    (a) Criteria. To qualify under this subcategory, a service must 
support at least one of the following NSEP functions:
    (i) Distribution of food and other essential supplies.
    (ii) Maintenance of national monetary, credit, and financial 
systems.
    (iii) Maintenance of price, wage, rent, and salary 
stabilization, and consumer rationing programs.
    (iv) Control of production and distribution of strategic 
materials and energy supplies.
    (v) Prevention and control of environmental hazards or damage.
    (vi) Transportation to accomplish the foregoing NSEP functions.
    (b) Priority level assignment. Services under this subcategory 
will normally be assigned Priority Levels 4 or 5 for provisioning 
and restoration during Peacetime/Crisis/Mobilization.

0
4. Revise appendix B to part 64 to read as follows:

Appendix B to Part 64--Wireless Priority Service (WPS) for National 
Security and Emergency Preparedness (NSEP)

1. Purpose and Authority

    a. This appendix establishes rules, policies, and procedures and 
outlines responsibilities for the Wireless Priority Service (WPS), 
previously called Priority Access Service (PAS), to support the 
needs of National Security Emergency Preparedness (NSEP) personnel. 
WPS authorizes priority treatment to certain domestic 
telecommunications services and internet Protocol-based services 
(NSEP services) for which priority levels are requested, assigned, 
and approved in accordance with this appendix.
    b. This appendix is issued pursuant to sections 1, 4(i), 4(j), 
4(n), 201-205, 251(e)(3), 254, 301, 303(b), 303(g), 303(r), 307, 
308(a), 309(a), 309(j), 316, 332, 403, 615a-1, 615c, and 706 of the 
Communications Act of 1934, as amended, codified at 47 U.S.C. 151, 
154(i)-(j), (n), 201-205, 251(e)(3), 254, 301, 303(b), 303(g), 
303(r), 307, 308(a), 309(a), 309(j), 316, 332, 403, 615a-1, 615c, 
606; and Executive Order 13618. Under section 706 of the 
Communications Act, this authority may be superseded by the war 
emergency powers of the President of the United States.

2. Definitions

    As used in this appendix:
    a. Authorizing agent refers to a Federal or State entity that 
authenticates, evaluates, and makes recommendations to DHS regarding 
the assignment of priority levels.
    b. Service provider (or wireless service provider) refers to a 
provider of a wireless communications service or internet Protocol-
based service, including commercial or private mobile service. The 
term includes agents of the licensed provider and resellers of 
wireless service.
    c. Service user means an individual or organization to whom or 
which a priority access assignment has been made.
    d. The following terms have the same meaning as in Appendix A to 
part 64, as amended:
    (1) Assignment;
    (2) Government;
    (3) internet Protocol-based services;
    (4) National Coordinating Center for Communications (NCC);
    (5) National Security Emergency Preparedness (NSEP) services 
(excluding the last sentence);

[[Page 39789]]

    (6) Reconciliation;
    (7) Revalidation;
    (8) Revision;
    (9) Revocation.

3. Scope

    a. Applicability. This appendix applies to the provision of WPS 
by wireless service providers to users who qualify under the 
provisions of section 6 of this appendix.
    b. Eligible services. Wireless service providers may, on a 
voluntary basis, give eligible users priority access to, and 
priority use of, all secure and non-secure voice, data, and video 
services available over their networks. Providers that elect to 
offer these services must comply with all provisions of this 
appendix.

4. Policy

    WPS provides the means for NSEP users to obtain priority 
wireless access to available radio channels when necessary to 
initiate emergency communications. It does not preempt public safety 
emergency (911) calls, but it may preempt or degrade other in-
progress voice calls. NSEP users are authorized to use priority 
signaling to ensure networks can detect WPS handset network 
registration and service invocation. WPS is used during situations 
when network congestion is blocking NSEP call attempts. It is 
available to authorized NSEP users at all times in markets where the 
service provider has voluntarily elected to provide such service. 
Priority Levels 1 through 5 are reserved for qualified and 
authorized NSEP users, and those users are provided access to radio 
channels before any other users.

5. Responsibilities

    a. The FCC:
    (1) Provides regulatory oversight of WPS.
    (2) Enforces WPS rules and regulations, which are contained in 
this appendix.
    (3) Acts as final authority for approval, revision, or 
disapproval of priority assignments by DHS and adjudicates disputes 
regarding priority assignments and denials of such requests by DHS, 
until superseded by the President's war emergency powers under 
Section 706 of the Communications Act.
    (4) Performs such functions as are required by law, including:
    (a) with respect to all entities licensed or regulated by the 
FCC: the extension of or change in network facilities; the 
discontinuance, reduction, or impairment of interstate services; the 
control of common carrier rates, charges, practices, and 
classifications; the construction, authorization, activation, 
deactivation, or closing of radio stations, services, and 
facilities; the assignment of radio frequencies to licensees; the 
investigation of violations of FCC rules; and the assessment of 
communications service provider emergency needs and resources; and
    (b) supports the continuous operation and restoration of 
critical communications systems and services by assisting the 
Secretary of Homeland Security with infrastructure damage assessment 
and restoration, and by providing the Secretary of Homeland Security 
with information collected by the FCC on communications 
infrastructure, service outages, and restoration, as appropriate.
    b. Authorizing agents:
    (1) Identify themselves as authorizing agents and their 
respective communities of interest to DHS. State authorizing agents 
provide a central point of contact to receive priority requests from 
users within their state. Federal authorizing agents provide a 
central point of contact to receive priority requests from Federal 
users or Federally sponsored entities.
    (2) Authenticate, evaluate, and make recommendations to DHS to 
approve priority level assignment requests using the priorities and 
criteria specified in section 6 of this appendix. When appropriate, 
authorizing agents recommend approval or denial of requests for WPS.
    (3) Ensure that documentation is complete and accurate before 
forwarding it to DHS.
    (4) Serve as a conduit for forwarding WPS information from DHS 
to service users and vice versa. Such information includes WPS 
requests and assignments, reconciliation and revalidation 
notifications, and other relevant information.
    (5) Participate in reconciliation and revalidation of WPS 
information at the request of DHS.
    (6) Disclose content of the WPS database only to those having a 
need-to-know.
    c. Service users:
    (1) Determine the need for and request WPS assignments in 
accordance with the processes and procedures established by DHS.
    (2) Initiate WPS requests through the appropriate authorizing 
agent. DHS approves or denies WPS requests and may direct service 
providers to remove WPS if appropriate. (Note: state and local 
government and private users apply for WPS through their designated 
state government authorizing agent. Federal users apply for WPS 
through their employing agency. State and local users in states 
where there has been no designation are sponsored by the Federal 
agency concerned with the emergency function as set forth in 
Executive Order 12656. If no authorizing agent is determined using 
these criteria, DHS serves as the authorizing agent.)
    (3) Submit all correspondence regarding WPS to the authorizing 
agent.
    (4) Participate in reconciliation and revalidation of WPS 
information at the request of the authorizing agent or DHS.
    (5) Request discontinuance of WPS when the NSEP qualifying 
criteria used to obtain WPS is no longer applicable.
    (6) Pay service providers as billed for WPS.
    d. Service providers:
    (1) Provide WPS only upon receipt of an authorization from DHS 
and remove WPS for specific users at the direction of DHS.
    (2) Ensure that WPS Priority Level 1 exceeds all other priority 
services offered by WPS providers.
    (3) Designate a point of contact to coordinate with DHS 
regarding WPS.
    (4) Participate in reconciliation and revalidation of WPS 
information at the request of DHS.
    (5) As technically and economically feasible, provide roaming 
service users the same grade of WPS provided to local service users.
    (6) Disclose information regarding WPS users only to those 
having a need-to-know or who will not use the information for 
economic advantage.
    (7) Ensure that at all times a reasonable amount of wireless 
spectrum is made available for public use.
    (8) Notify DHS and the service user if WPS is to be discontinued 
as a service.
    (9) Comply with all relevant Commission rules regarding WPS.
    e. An appropriate body identified by DHS will identify and 
review any systemic problems associated with the WPS system and 
recommend actions to correct them or prevent their recurrence.

6. WPS Priority Levels and Qualifying Criteria

    a. The following WPS priority levels and qualifying criteria 
apply equally to all users and will be used as a basis for all WPS 
assignments. There are five levels of NSEP priorities, with Priority 
Level 1being the highest. The five priority levels are:
    (1) Executive Leadership and Policy Makers.
    Users who qualify for the Executive Leadership and Policy Makers 
category will be assigned Priority Level 1. A limited number of 
technicians who are essential to restoring wireless networks shall 
also receive this highest priority treatment. Users assigned to 
Priority Level 1 receive the highest priority in relation to all 
other priority services offered by WPS providers. Examples of users 
who are eligible for Priority Level 1 include:
    (i) The President of the United States, the Secretary of 
Defense, selected military leaders, and the staff who support these 
officials;
    (ii) State governors, lieutenant governors, cabinet-level 
officials responsible for public safety and health, and the staff 
who support these officials; and
    (iii) Mayors, county commissioners, and the staff who support 
these officials.
    (2) Disaster Response/Military Command and Control.
    Users who qualify for the Disaster Response/Military Command and 
Control category will be assigned Priority Level 2. This priority 
level includes individuals who manage the initial response to an 
emergency at the Federal, state, local, and regional levels. 
Personnel selected for this priority level are responsible for 
ensuring the viability or reconstruction of the basic infrastructure 
in an emergency area. In addition, personnel essential to continuity 
of government and national security functions (such as the conduct 
of international affairs and intelligence activities) are also 
included in this priority level. Examples of users who are eligible 
for Priority Level 2 include personnel from the following 
categories:
    (i) Federal emergency operations center coordinators, e.g., 
Chief, Public Safety and Homeland Security Bureau (FCC); Manager, 
National Coordinating Center for Communications; National 
Interagency Fire Center, Federal Coordinating Officer, Director of 
Military Support;

[[Page 39790]]

    (ii) State emergency services directors, National Guard 
leadership, Federal and state damage assessment team leaders;
    (iii) Federal, state and local personnel with continuity of 
government responsibilities;
    (iv) Incident command center managers, local emergency managers, 
other state and local elected public safety officials; and
    (v) Federal personnel with intelligence and diplomatic 
responsibilities.
    (3) Public Health, Safety and Law Enforcement Command.
    Users who qualify for the Public Health, Safety, and Law 
Enforcement Command category will be assigned Priority Level 3. This 
priority level includes individuals who conduct operations critical 
to life, property, and maintenance of law and order immediately 
following an emergency event. Examples of users who are eligible for 
Priority Level 3 include personnel from the following categories:
    (i) Federal law enforcement;
    (ii) State police;
    (iii) Local fire and law enforcement;
    (iv) Emergency medical services;
    (v) Search and rescue;
    (vi) Emergency communications;
    (vii) Critical infrastructure protection; and
    (viii) Hospital personnel.
    (4) Public Services/Utilities and Public Welfare.
    Users who qualify for the Public Services/Utilities and Public 
Welfare category will be assigned Priority Level 4. This priority 
level includes individuals who manage public works and utility 
infrastructure damage assessment and restoration efforts and 
transportation to accomplish emergency response activities. Examples 
of users who are eligible for Priority Level 4 include personnel 
from the following categories:
    (i) Army Corps of Engineers;
    (ii) Power, water, and sewage;
    (iii) Communications;
    (iv) Transportation; and
    (v) Financial services.
    (5) Disaster Recovery.
    Users who qualify for the Disaster Recovery category will be 
assigned Priority Level 5. This priority level includes individuals 
who manage a variety of recovery operations after the initial 
response has been accomplished. These functions may include managing 
medical resources such as supplies, personnel, or patients in 
medical facilities. Other activities such as coordination to 
establish and stock shelters, to obtain detailed damage assessments, 
or to support key disaster field office personnel may be included. 
Examples of users who are eligible for Priority Level 5 include 
personnel from the following categories:
    (i) Medical recovery;
    (ii) Detailed damage assessment;
    (iii) Emergency shelter; and
    (iv) Joint Field Office support personnel.
    b. These priority levels were selected to meet the needs of NSEP 
users who manage and respond to national security and public safety 
emergency situations, particularly during the first 24 to 72 hours 
following an event.
    c. The entities listed above are examples of the groups of users 
who may qualify for each priority level. The lists are non-
exhaustive; other users may qualify for WPS, including those from 
the critical infrastructure sectors identified in Presidential 
Policy Directive 21. However, specific eligibility determinations 
and priority level assignments are made by DHS.

7. Appeal

    Service users and authorizing agents may appeal any priority 
level assignment, denial, revision, or revocation to DHS within 30 
days of notification to the service user. If a dispute still exists 
following DHS action, an appeal may then be made to the FCC within 
30 days of notification of DHS's decision. The party filing the 
appeal must include factual details supporting its claim and must 
provide a copy of the appeal to DHS and any other party directly 
involved. Involved parties may file a response to the appeal made to 
the FCC within 20 days, and the initial filing party may file a 
reply within 10 days thereafter. The FCC will provide notice of its 
decision to the parties of record. Until a decision is made, the 
service will remain status quo.

8. Preemption or Degradation of Existing Services

    Service providers may preempt or degrade in-progress voice, 
data, text, and video communications from NSEP users assigned to any 
priority level, except for public safety emergency (911) 
communications, when necessary to prioritize eligible WPS 
communications.
    a. Service providers are not required to offer preemption or 
degradation.
    b. Preemption and degradation are authorized for all five 
priority levels.
    c. Preemption and degradation are not subject to the consent of 
the user whose service will be preempted or degraded.

9. Priority Signaling

    Service providers may offer priority signaling to ensure 
networks can detect WPS handset registration and service invocation.

[FR Doc. 2022-14155 Filed 7-1-22; 8:45 am]
BILLING CODE 6712-01-P


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