[Federal Register Volume 73, Number 184 (Monday, September 22, 2008)]
[Rules and Regulations]
[Pages 54511-54526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21946]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 10

[PS Docket No. 07-287; FCC 08-184]


Commercial Mobile Alert System

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission or FCC) adopts rules to further enable Commercial Mobile 
Service (CMS) alerting capability for CMS providers who elect to 
transmit emergency alerts to their subscribers. This Commercial Mobile 
Alert System Third R&O (CMAS Third R&O) represents our next step in 
establishing a Commercial Mobile Alert System (CMAS), under which CMS 
providers may elect to transmit emergency alerts to the public. We take 
this step pursuant to the mandate of section 602(b) of the WARN Act, 
which requires the Commission to adopt rules allowing any CMS provider 
to transmit emergency alerts to its subscribers; requires CMS providers 
that elect, in whole or in part, not to transmit emergency alerts to 
provide clear and conspicuous notice at the point of sale of any CMS 
devices that they will not transmit such alerts via that device; and 
requires CMS providers that elect not to transmit emergency alerts to 
notify their existing subscribers of their election.

DATES: Effective October 22, 2008.

FOR FURTHER INFORMATION CONTACT: Thomas J. Beers, Chief, Policy 
Division, Public Safety and Homeland Security Bureau, Federal 
Communications Commission at (202) 418-0952.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's CMAS 
Third R&O in PS Docket No. 07-287, adopted and released on August 7, 
2008. The complete text of this document is available for inspection 
and copying during normal business hours in the FCC Reference 
Information Center, Portals II, 445 12th Street, SW., Room CY-A257, 
Washington, DC 20554. This document may also be purchased from the 
Commission's duplicating contractor, Best Copy and Printing, Inc., in 
person at 445 12th Street, SW., Room CY-B402, Washington, DC 20554, via 
telephone at (202) 488-5300, via facsimile at (202) 488-5563, or via e-
mail at <a href="/cdn-cgi/l/email-protection#b5f3f6f6f5f7f6e5fce2f0f79bd6dad8"><span class="__cf_email__" data-cfemail="3f797c7c7f7d7c6f76687a7d115c5052">[email protected]</span></a>. Alternative formats (computer diskette, large 
print, audio cassette, and Braille) are available to persons with 
disabilities or by sending an e-mail to <a href="/cdn-cgi/l/email-protection#41070202747175012722226f262e37"><span class="__cf_email__" data-cfemail="6e282d2d5b5e5a2e080d0d40090118">[email protected]</span></a> or calling the 
Consumer and Governmental Affairs Bureau at (202) 418-0530, TTY (202) 
418-0432. This document is also available on the Commission's Web site 
at http://www.fcc.gov.

[[Page 54512]]

Paperwork Reduction Act of 1995 Analysis:

    The initial election that CMS providers must make pursuant to 
section 602(b)(2)(A) of the WARN Act has been granted pre-approval by 
OMB (OMB Control Number 3060-1113). The FCC received OMB pre-approval 
for this collection on February 4, 2008. Public reporting burden for 
this collection of information is estimated to be 6 minutes per 
response, including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information. This collection 
of information is for the purpose of assisting the Commission in 
overseeing the Commercial Mobile Service Alert System. This collection 
is mandatory under the Warning, Alert and Response Network Act, Sec.  
602(b)(2)(A), Title VI of the Security and Accountability for Every 
Port Act of 2006, Public Law No. 109-347, 120 Stat. 1884 (2006). Send 
comments regarding this burden estimate, or any other aspect of this 
collection of information, including suggestions for reducing the 
burden to Federal Communications Commission, AMD-PERM, Washington, DC 
20554, Paperwork Reduction Project (3060-1113), or via the Internet to 
<a href="/cdn-cgi/l/email-protection#d585879495b3b6b6fbb2baa3"><span class="__cf_email__" data-cfemail="83d3d1c2c3e5e0e0ade4ecf5">[email protected]</span></a>. DO NOT SEND ELECTION LETTERS TO THIS ADDRESS.
    Under 5 CFR 1320, an agency may not conduct or sponsor a collection 
of information unless it displays a currently valid OMB Control Number. 
No person shall be subject to any penalty for failing to comply with a 
collection of information subject to the Paperwork Reduction Act (PRA) 
that does not display a currently valid OMB Control Number. This 
collection has been assigned OMB Control Number 3060-1113 and its 
expiration date is February 28, 2011.
    In addition, we note that, pursuant to the Small Business Paperwork 
Relief Act of 2002, Public Law 107-198, see 44 U.C.S. 3506(c)(4), we 
previously sought specific comment on how the Commission might 
``further reduce the information collection burden for small business 
concerns with fewer than 25 employees.''
    This R&O also contains new information collection requirements 
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13. These collections will be submitted to the Office of Management and 
Budget (OMB) for review under section 3507 of the PRA at any 
appropriate time. At that time, OMB, the general public and other 
Federal agencies will be invited to comment on the new or modified 
information collection requirements contained in this proceeding. In 
addition, pursuant to the Small Business Paperwork Relief Act of 2002, 
Public Law 107-198, see 44 U.C.S. 3506(c)(4), we will seek specific 
comment on how the Commission might ``further reduce the information 
collection burden for small business concerns with fewer than 25 
employees.''

Synopsis

Introduction

    1. This Commercial Mobile Alert System Third R&O (CMAS Third R&O) 
represents our next step in establishing a Commercial Mobile Alert 
System (CMAS), under which Commercial Mobile Service (CMS) providers 
may elect to transmit emergency alerts to the public. We take this step 
pursuant to the mandate of section 602(b) of the WARN Act, which 
requires the Commission to adopt rules allowing any CMS provider to 
transmit emergency alerts to its subscribers; requires CMS providers 
that elect, in whole or in part, not to transmit emergency alerts to 
provide clear and conspicuous notice at the point of sale of any CMS 
devices that they will not transmit such alerts via that device; and 
requires CMS providers that elect not to transmit emergency alerts to 
notify their existing subscribers of their election.
    2. In the CMAS Third R&O, we adopt rules implementing section 
602(b) of the WARN Act. Specifically, we:
    <bullet> Adopt notification requirements for CMS providers that 
elect not to participate, or to participate only in part, with respect 
to new and existing subscribers;
    <bullet> Adopt procedures by which CMS providers may elect to 
transmit emergency alerts and to withdraw such elections;
    <bullet> Adopt a rule governing the provision of alert opt-out 
capabilities for subscribers;
    <bullet> Allow participating CMS providers to recover costs 
associated with the development and maintenance of equipment supporting 
the transmission of emergency alerts; and
    <bullet> Adopt a compliance timeline under which participating CMS 
providers must begin CMAS deployment.
    3. By adopting these rules, we take another significant step 
towards achieving one of our highest priorities--to ensure that all 
Americans have the capability to receive timely and accurate alerts, 
warnings and critical information regarding disasters and other 
emergencies irrespective of what communications technologies they use. 
As we have learned from recent disasters, including Hurricane Katrina 
in 2005 and the recent floods that have impacted our Midwestern and 
Southern states, it is essential to enable Americans to take 
appropriate action to protect their families and themselves from loss 
of life or serious injury. This CMAS Third R&O also is consistent with 
our obligation under Executive Order 13407 to ``adopt rules to ensure 
that communications systems have the capacity to transmit alerts and 
warnings to the public as part of the public alert and warning 
system,'' and our mandate under the Communications Act to promote the 
safety of life and property through the use of wire and radio 
communication.
    4. This CMAS Third R&O is the latest step in the Commission's 
ongoing effort to enhance the reliability, resiliency, and security of 
emergency alerts to the public by requiring that alerts be distributed 
over diverse communications platforms. In the 2005 EAS First R&O, we 
expanded the scope of the Emergency Alert System (EAS) from analog 
television and radio to include participation by digital television and 
radio broadcasters, digital cable television providers, Digital Audio 
Radio Service (DARS), and Direct Broadcast Satellite (DBS) systems. As 
we noted in the Further Notice of Proposed Rulemaking that accompanied 
the EAS First R&O, wireless services are becoming equal to television 
and radio as an avenue to reach the American public quickly and 
efficiently. As of June 5, 2008, the wireless industry reports that 
approximately 260 million Americans subscribed to wireless services. 
Wireless service has progressed beyond voice communications and now 
provides subscribers with access to a wide range of information 
critical to their personal and business affairs. In times of emergency, 
Americans increasingly rely on wireless telecommunications services and 
devices to receive and retrieve critical, time-sensitive information. A 
comprehensive wireless mobile alerting system would have the ability to 
alert people on the go in a short timeframe, even where they do not 
have access to broadcast radio or television or other sources of 
emergency information. Providing critical alert information via 
wireless devices will ultimately help the public avoid danger or 
respond more quickly in the face of crisis, and thereby save lives and 
property.

[[Page 54513]]

Background

    5. On October 13, 2006, the President signed the Security and 
Accountability For Every Port (SAFE Port) Act into law. Title VI of the 
SAFE Port Act, the WARN Act, establishes a process for the creation of 
the CMAS whereby CMS providers may elect to transmit emergency alerts 
to their subscribers. The WARN Act requires that we undertake a series 
of actions to accomplish that goal, including requiring the Commission, 
by December 12, 2006 (within 60 days of enactment) to establish and 
convene an advisory committee to recommend technical requirements for 
the CMAS. Accordingly, we formed the Commercial Mobile Service Alert 
Advisory Committee (CMSAAC), which had its first meeting on December 
12, 2006. The WARN Act further required the CMSAAC to submit its 
recommendations to the Commission by October 12, 2007 (one year after 
enactment). The CMSAAC submitted its report on that date.
    6. On December 14, 2007, we released a Notice of Proposed 
Rulemaking requesting comment on issues related to implementation of 
section 602 of the WARN Act. The Commission has received over 60 
comments and ex parte filings. On April 9, 2008, we released a First 
R&O, adopting technical standards, protocols, processes and other 
technical requirements ``necessary to enable commercial mobile service 
alerting capability for commercial mobile service providers that 
voluntarily elect to transmit emergency alerts.'' On July 8, 2008, we 
adopted a Second R&O establishing rules requiring noncommercial 
educational and public broadcast television station licensees and 
permittees to install necessary equipment and technologies on, or as 
part of, the broadcast television digital signal transmitter to enable 
the distribution of geographically targeted alerts by CMS providers 
that have elected to participate in the CMAS. This Third R&O implements 
further WARN Act requirements consistent with the Commission's goal of 
establishing an effective and efficient CMAS.

Discussion

A. Notification by CMS Providers Electing Not To Transmit Alerts

1. Notification at Point of Sale
    7. Background. Section 602(b)(1) provides that ``within 120 days 
after the date on which [the Commission] adopts relevant technical 
standards and other technical requirements pursuant to subsection (a), 
the Commission shall complete a proceeding to allow any licensee 
providing commercial mobile service * * * to transmit emergency alerts 
to subscribers to, or users of, the commercial mobile service provided 
by such licensee.'' Pursuant to this section, the Commission must 
``require any licensee providing commercial mobile service that elects, 
in whole or in part, under paragraph (2) [Election] not to transmit 
emergency alerts to provide clear and conspicuous notice at the point 
of sale of any devices with which its commercial mobile service is 
included, that it will not transmit such alerts via the service it 
provides for the device.''
    8. In its October 12, 2007 report, the CMSAAC recommended that 
carriers retain the discretion to determine how to provide specific 
information regarding (1) whether or not they offer wireless emergency 
alerts, and (2) which devices are or are not capable of receiving 
wireless emergency alerts, as well as how to tailor additional notice, 
if necessary, for devices offered at other points of sale. 
Nevertheless, the CMSAAC recommended specific language to be used by 
carriers that elect, in part or in whole, not to transmit emergency 
alerts. With respect to carriers who intend to transmit emergency 
alerts ``in part,'' the CMSAAC-recommended language reads as follows:
    Notice Regarding Transmission of Wireless Emergency Alerts 
(Commercial Mobile Alert Service)
    [[WIRELESS PROVIDER]] has chosen to offer wireless emergency alerts 
within portions of its service area, as defined by the terms and 
conditions of its service agreement, on wireless emergency alert 
capable devices. There is no additional charge for these wireless 
emergency alerts.
    Wireless emergency alerts may not be available on all devices or in 
the entire service area, or if a subscriber is outside of the 
[[WIRELESS PROVIDER'S]] service area. For details on the availability 
of this service and wireless emergency alert capable devices, please 
ask a sales representative, or go to [[INSERT WEBSITE URL]]. Notice 
required by FCC Rule XXXX (Commercial Mobile Alert Service).
    The CMSAAC recommended the following language for carriers that 
``in whole'' elect not to transmit emergency alerts:
    NOTICE TO NEW AND EXISTING SUBSCRIBERS REGARDING TRANSMISSION OF 
WIRELESS EMERGENCY ALERTS (Commercial Mobile Alert Service)
    [[WIRELESS PROVIDER]] presently does not transmit wireless 
emergency alerts. Notice required by FCC Rule XXXX (Commercial Mobile 
Alert Service).
    In the CMAS NPRM, we sought comment on the CMSAAC recommendation 
and whether it sufficiently addressed the requirements of the statute. 
We also sought comment on the CMSAAC's suggestion that, because the 
WARN Act does not impose a notice requirement on CMS providers who have 
elected to participate in full, the Commission should not adopt a 
notice requirement for those providers. We also sought comment on the 
definition of ``any point of sale,'' which we specified as any means--
retail, telephone, or Internet-based--by which a service provider 
facilitates and promotes its services for sale to the public. We 
suggested that third party, separately branded resellers also would be 
subject to point of sale notification requirements.
    9. We also requested comment on what constitutes clear and 
conspicuous notice at the point of sale. For example, we asked whether 
a general notice in the form of a statement attesting to the election 
not to provide emergency alerts would satisfy the statutory requirement 
and whether the statutory language requires the posting of a general 
notice in clear view of subscribers in the service provider's stores, 
kiosks, third party reseller locations, Web site (proprietary or third 
party), and any other venue through which the service provider's 
devices and services are marketed or sold. We also asked what form the 
general notice should take. In addition, we asked whether a service 
provider meets the condition of clear and conspicuous notification if 
the service provider requires subscribers to read and indicate their 
understanding that the service provider does not offer emergency 
alerts.
    10. Comments. Many commenters supported the CMSAAC's recommendation 
that CMS providers be afforded discretion in determining how best to 
provide notice at the point of sale. For example, SouthernLINC argues 
that ``general guidance from the FCC regarding suggested format and 
procedures for providing notice to subscribers would be sufficient to 
meet the requirements of the WARN Act,'' but that we should ``refrain 
from adopting specific requirements for each carrier, regardless of the 
carrier's size, business model, or customer preferences.'' CTIA agrees, 
stating that ``a single type of notice is not appropriate in all 
situations,'' and that different points of sale and business 
circumstances lend themselves more readily to particular notice 
solutions. CTIA further argues

[[Page 54514]]

that, rather than focusing on the mechanics of the notice, the 
Commission should encourage wireless providers to ``furnish customers 
with the information they need to make an informed decision.'' CTIA 
argues that a ``combination of business incentive and statutory 
requirements'' will ensure that customers are given adequate notice at 
the point of sale. This is particularly the case, argues CTIA, where a 
wireless carrier intends to deploy the CMAS on a market-by-market 
basis, in which case a standardized message ``may lead to confusion and 
dissatisfaction'' among customers. MetroPCS argues that any discretion 
given to carriers with respect to the provision of ``clear and 
conspicuous'' notice also should extend to how carriers provide notice 
through their ``indirect distribution channels,'' and that since 
indirect distribution is not owned or operated by the carriers, 
``carriers should not be held responsible for the indirect distribution 
retail outlet's failure to follow a carrier's directives, provided that 
the provider has put the distributor on notice and took reasonable 
steps to ensure prompt compliance.''
    11. Other commenters from the wireless industry also expressed 
support for the CMSAAC's recommended text language. MetroPCS supports 
the adoption of a ``safe harbor'' under which carriers that use the 
model text developed by the CMSAAC are deemed to have provided adequate 
notice. Wireless industry commenters also agreed with the CMSAAC that 
CMS providers electing to participate in the CMAS should not be 
required to disclose such participation to subscribers. AAPC, for 
example, argues that such a requirement is unnecessary because 
participating CMS providers will have every incentive to advertise and 
promote the fact of their participation.
    12. Other commenters argue that the Commission should adopt 
specific notice requirements. California Public Utilities Commission 
(CPUC) recommends that CMS providers be required to provide notice to 
and receive confirmations from new customers acknowledging their 
understanding that the service provider does or does not offer 
emergency alerts. CPUC also recommends that notices be in large print 
and placed prominently on placards or their equivalent and that each 
device sold by service providers should include a notice that emergency 
alerts are or are not included as a feature of the device or the 
service provider's service. Wireless Rehabilitation Engineering 
Research Center argues that such procedures should also include audio 
and video procedures (e.g., provision of CMAS information in large 
print, Braille and audio formats) so that persons with disabilities 
will be fully informed about the CMAS. It also recommends that CMS 
providers be required to instruct subscribers that technical 
limitations might prevent alert message reception even in areas with 
signal coverage and that such no-alert areas should be detailed in 
coverage maps.
    13. Discussion. As an initial matter, we find that the statute does 
not require CMS providers to provide notice in the event they elect to 
transmit alerts to all subscribers. For those carriers that have 
elected in whole or in part not to transmit emergency alerts, we find 
that the statute requires that they ``provide clear and conspicuous 
notice at point-of sale'' of their non-election or partial election to 
provide emergency alerts. Additionally, we find that the statute 
provides specific and limiting guidance. Therefore, we agree with 
commenters that a one-size-fits-all approach to notification may not 
adequately address the range of methods by which service providers 
communicate with their customers. Nevertheless, the CMSAAC has crafted 
plain language notifications that we believe are consistent with the 
intent of the statute and which convey concisely a service provider's 
non-election or partial election at the point of sale. We find that 
this language will convey sufficient information and serve as the 
minimum standard for clear and conspicuous notice under the WARN Act. 
Our decision allows, but does not require, CMS providers to provide 
their customers with additional information relating to CMAS. 
Specifically, CMS providers electing to transmit alerts ``in part'' 
shall use the following notification, at a minimum:
    Notice Regarding Transmission of Wireless Emergency Alerts 
(Commercial Mobile Alert Service)
    [[CMS PROVIDER]] has chosen to offer wireless emergency alerts 
within portions of its service area, as defined by the terms and 
conditions of its service agreement, on wireless emergency alert 
capable devices. There is no additional charge for these wireless 
emergency alerts.
    Wireless emergency alerts may not be available on all devices or in 
the entire service area, or if a subscriber is outside of the [[CMS 
PROVIDER's]] service area. For details on the availability of this 
service and wireless emergency alert capable devices, please ask a 
sales representative, or go to [[CMS PROVIDER'S URL]].
    Notice required by FCC Rule 47 CFR 10.240 (Commercial Mobile Alert 
Service). CMS providers electing in whole not to transmit alerts shall 
use the following notification language, at a minimum:
    NOTICE TO NEW AND EXISTING SUBSCRIBERS REGARDING TRANSMISSION OF 
WIRELESS EMERGENCY ALERTS (Commercial Mobile Alert Service)
    [[CMS PROVIDER]] presently does not transmit wireless emergency 
alerts. Notice required by FCC Rule 47 CFR 10.240 (Commercial Mobile 
Alert Service).
    14. We define the point of sale as the physical and/or virtual 
environment in which a potential subscriber judges the products and 
services of the service provider and the point at which the potential 
subscriber enters into a service agreement with the service provider. 
Thus, we adopt the CMSAAC recommended language as a minimum standard of 
necessary information for use by all service providers and their agents 
in point-of-sale venues, which shall include stores, kiosks, third 
party reseller locations, Web sites (proprietary and third party), and 
any other venue through which the service provider's devices and 
services are marketed or sold. Section 601(b)(1)(2) specifically places 
the responsibility of notification on the CMS provider. Therefore, CMS 
providers are responsible for ensuring that clear and conspicuous 
notice is provided to customers at the point-of-sale, regardless of 
whether third party agents serve as the distribution channel.
    15. We expect service providers selling through an indirect 
distribution channel may meet their statutory requirements through 
appropriate agency contract terms with their distribution partners or 
by other reasonable means. However, the statute assigns responsibility 
for conveying clear and conspicuous notice to CMS providers and, 
consistent with this statutory language, we decline to shift this 
burden onto a non-Commission licensed party. Therefore, CMS providers 
are solely responsible for ensuring that clear and conspicuous notice 
is provided to customers at the point-of-sale.
    16. We decline at this time to adopt specific requirements, such as 
those put forth by CPUC (e.g., certain sized posters, type-size, 
brochures) for displaying the notification, preferring instead to allow 
carriers to create and position notifications that are consistent with 
the marketing and service notification methodologies in use at any 
given time by the service provider. Similarly, with respect to Wireless 
RERC's concerns that procedures be mandated that include audio and 
video

[[Page 54515]]

notifications so that persons with disabilities will be fully informed 
about a service provider's election in part or in whole not to transmit 
emergency alerts, we believe that service providers will make use of 
existing facilities and procedures to convey the necessary 
notification. The statute requires clear and conspicuous notification, 
which we interpret to include the provision of notification that takes 
into account the needs of persons with disabilities. Thus, clear and 
conspicuous notification for persons with disabilities would include 
enhanced visual, tactile or auditory assistance in conveying the 
required notification. However, we agree with commenters and the CMSAAC 
that wireless service providers are in the best position to determine 
the proper method of providing this notice and leave it to the 
discretion of providers to provide clear and conspicuous notice at the 
point-of-sale. In addition, our decision allows, but does not require, 
additional information regarding the technical limitations of CMAS 
alerts, as requested by Wireless RERC (i.e., that technical limitations 
might prevent alert message reception even in areas with signal 
coverage).
    17. We disagree with the concerns raised by some commenters that, 
without a written acknowledgement from a subscriber, notification 
requirements under the WARN Act are not met. The statute requires the 
CMS provider to provide clear and conspicuous notice, but does not 
require the Commission to mandate an affirmative response from 
customers. Service agreements usually define the carrier's and 
subscriber's rights and responsibilities and describe any limitations 
of the service or products offered. We expect that many CMS providers 
will provide clear and conspicuous notice in their service agreements. 
To the extent they do so, subscribers in effect acknowledge such notice 
by signing the agreement. However, we do not require that this 
notification be placed into a service agreement, nor do we require that 
CMS providers otherwise obtain subscriber acknowledgements. We find 
that by implementing the statutory requirement of clear and conspicuous 
notice at the point of sale, adopting an acknowledgment requirement 
would be unnecessary.
2. Notifications to Existing Subscribers
    18. Background. Section 602(b)(1)(C) states that the Commission 
shall ``require any licensee providing commercial mobile service that 
elects under paragraph (2) not to transmit emergency alerts to notify 
its existing subscribers of its election.'' In the CMAS NPRM, we asked 
whether CMS providers should be granted the discretion to determine how 
to provide notice of non-election, including the methods and duration 
of a service provider's notification to existing subscribers of an 
election. We also asked about the use of existing marketing and billing 
practices for purposes of notification, and whether service providers 
should be required to notify existing subscribers by sending them a 
separate notice of a change in their terms and conditions of their 
service. In addition, we asked how service providers should notify pre-
paid customers. We also asked whether service providers should be 
required to demonstrate to the Commission that they have met this 
requirement and, if so, how. Finally, we asked whether service 
providers should be required to maintain a record of subscribers who 
have acknowledged receipt of the service provider's notification.
    19. Comments. Wireless service providers generally argue that the 
Commission should provide CMS providers with flexibility regarding 
notice to existing subscribers, and oppose any requirement that CMS 
providers maintain records of subscriber acknowledgements of the 
notification. RCA argues, for example, that a requirement to maintain 
records of subscriber acknowledgement exceeds the authority granted to 
the Commission by the WARN Act, which only requires the provision of 
notice. SouthernLINC opposes ``the imposition of any burdensome notice 
or record keeping requirements on regional and small, rural carriers.'' 
Further, SouthernLINC argues that it would be ``unrealistic to expect 
every customer to affirmatively respond to notices and that it would be 
counterproductive for carriers to expend tremendous resources in 
tracking down customers that choose not to respond.'' MetroPCS argues 
that the need for flexibility is particularly necessary in the case of 
pre-paid carriers, who offer flat-rate service and who may not send 
written bills to their customers or keep current addresses of their 
customers on-file. According to MetroPCS, it corresponds with its 
customers mainly through short message service (SMS) messages delivered 
to the handsets of its subscribers.
    20. Wireless RERC argues that CMS providers should be required to 
``fully inform'' subscribers about the alert capabilities of the 
service provider's network and wireless devices, including pre-paid 
devices. Further, it argues that labeling on wireless devices or 
packages of wireless devices should be available in alternative 
formats, such as large print to aid those with visual impairments, and 
the Commission should establish ``CMAS standards of performance 
consistent with the Americans with Disabilities Act and other federal 
regulations regarding providing services to people with disabilities.'' 
CPUC urges the Commission to require, at a minimum, notification 
requirements similar to that required for VoIP providers for E911 
service, recommending that any notice requirement be flexible so as to 
allow for the use of direct mailings, paper bills, e-mails and Web site 
notices. It argues that CMS providers should also be required to verify 
that acknowledgment was received from incumbent customers at a time and 
date designated by the Commission but prior to CMAS implementation, 
including requiring customers ``to indicate their understanding that 
the service provider does not offer emergency alerts and should be 
required to sign a document (or otherwise demonstrate, such as through 
electronic acceptance) indicating that they have read and understood 
the notice [and] [t]his notice should in no case be combined with other 
direct mailings containing marketing materials.'' In those cases where 
subscribers declined to receive direct mailings from service providers, 
CPUC suggests that carriers be required to demonstrate that they have 
taken reasonable steps to inform subscribers of the decision not to 
transmit alert messages.
    21. CTIA disagrees with the CPUC's notification recommendations 
(modeled after the Commission's VoIP 9-1-1 notification requirements) 
arguing that, ``such rules cannot serve as a guideline because they 
were created in response to a specific issue that is inapplicable to 
CMAS.'' CTIA argues that those notice requirements ``were tailored to 
the notion that customers may have faulty assumptions about the 
availability of 911 services on their IP-enabled phones,'' whereas that 
concern is not present for CMAS because clear and conspicuous notice 
will be given to customers at the point of sale.
    22. Discussion. We again base our analysis on the explicit language 
of section 602(b)(1)(C), which requires any licensee providing 
commercial mobile service that elects not to transmit emergency alerts 
``to notify its existing subscribers of its election.'' As an initial 
matter, we find that section 602(b)(1)(C) is not limited to CMS 
providers that elect not to provide emergency alerts in whole. Rather, 
we interpret section 602(b)(1)(C) in concert with section 602(b)(1)(B) 
to also require CMS

[[Page 54516]]

providers that elect not to transmit emergency alerts in part to notify 
existing subscribers of their election. Thus, we require CMS providers 
to notify existing subscribers of their election, in whole or in part, 
not to transmit emergency alerts. Likewise, we require that this notice 
be ``clear and conspicuous.'' Additionally, as in the case of notice at 
point-of-sale, clear and conspicuous notification for persons with 
disabilities would include enhanced visual, tactile or auditory 
assistance in conveying the required notification.
    23. Turning next to how CMS providers are to make such 
notifications, we find that the way CMS providers typically convey 
changes in terms and conditions to their subscribers to be sufficiently 
analogous. Thus, while an election not to transmit alerts, in whole or 
in part, is not necessarily a change in an existing term or condition, 
we require service providers to notify existing subscribers of their 
election by means of an announcement amending the existing subscriber's 
terms and conditions of service agreement. We agree with commenters who 
suggest that service providers should be given discretion in 
determining how to provide such notice to existing subscribers. Service 
providers regularly use various means to announce changes in service to 
subscribers, including, for instance, direct mailing, bill inserts, and 
other billing-related notifications. In order to ensure that 
subscribers receive the necessary notification, we require service 
providers to use, at a minimum, the notification language recommended 
by the CMSAAC that we have adopted for use in point of sale 
notification.
    24. At this time, we will not require service providers to obtain a 
written or verbal acknowledgment from existing subscribers. We conclude 
that section 602(b)(1)(C) does not require an affirmative response from 
subscribers. Rather, it requires only that a provider notifies 
customers of its election not to participate. We agree with 
SouthernLINC that it would be unrealistic and unwarranted to require an 
affirmative response from every subscriber. While we recognize that 
some service providers allow their subscribers to opt out of receiving 
any information from the service provider, this usually applies to 
additional marketing or advertising communications and not to 
communications relating to changes in the terms and conditions of 
service. Finally, we recognize that service providers with pre-paid 
subscribers generally do not send a monthly billing statement to them 
and in some cases limit any customer notification to SMS messages. 
Further, service providers may not maintain customer information that 
can be used to communicate a change to the terms and conditions of 
service. Accordingly, in order to ensure that pre-paid customers are 
notified of the carrier's election, we require carriers to communicate 
the election through any reasonable means at their disposal, including, 
but not limited to, mailings, text messaging, and SMS messaging.
3. Timing of Notification
    25. Background. Under section 602(b)(2)(A), ``within 30 days after 
the Commission issues its order under paragraph (1), each licensee 
providing commercial mobile service shall file an election with the 
Commission with respect to whether or not it intends to transmit 
emergency alerts.'' As discussed above, carriers electing not to 
transmit, in part or in whole, are required to notify prospective and 
existing subscribers of their election, but the statute does not state 
that this notification shall be concomitant with the carrier's election 
on its intent to transmit emergency alerts. The record is silent on the 
timing of notification. Significantly, on May 30, 2008, the Department 
of Homeland Security's Federal Emergency Management Agency (FEMA) 
announced that it will perform the CMAS Alert Aggregator/Gateway role. 
FEMA noted, however, that the Alert Aggregator/Gateway system has not 
yet been designed or engineered, and did not indicate when it would 
make the Government Interface Design specifications available to the 
other CMAS participants. Further, the CMSAAC estimated that 
development, testing and deployment would require 18-24 months from 
standardization of the alerting protocol. Thus, a period of time will 
pass between the election filings and the commercial availability of 
CMAS.
    26. Discussion. Accordingly, we find that it would not be in the 
public interest to require the commencement of customer notification 
upon the filing of elections with the Commission and well in advance of 
the commercial availability of CMAS. A principal goal of the customer 
notification requirement is to ensure that, upon the commercial 
availability of CMAS and the expected marketing of this service and 
supporting handsets by carriers that have elected to provide alerts, 
prospective and existing subscribers of carriers electing not to 
transmit alerts are fully informed of the limitations of that carrier's 
alerting capabilities and better able to make an informed decision 
about which carriers can provide critical public safety notifications. 
We believe the relevance of this decision may be lost if notification 
is delivered to prospective and existing subscribers too far in advance 
of CMAS' commercial availability. Further, by not tying the customer 
notification requirements to the 30-day election requirement, we 
provide time for CMS providers that may initially elect not to provide 
alerting capability to alter such decisions, particularly when the 
future availability and details of the CMAS Alert Aggregator/Gateway 
are made known. Because commercial availability of alerts is dependent 
upon the activation of the Alert Aggregator/Gateway system to support 
transmission of emergency alerts, we find it reasonable to require 
customer notification upon the availability of the transmission of 
emergency alerts. Thus, we will require CMS providers that have 
elected, in whole or in part, not to provide alerts to provide point of 
sale and existing subscriber notifications as described supra to be 
made no later than 60 days following an announcement by the Commission 
that the Alert Aggregator/Gateway system is operational and capable of 
delivering emergency alerts to participating CMS providers. We find 
that this policy is consistent with the WARN Act. Although section 
602(b)(2)(A) of the WARN Act requires that CMS licensees file an 
election with the Commission within 30 days after the Commission issues 
this Third R&O, section 602(b)(1)(B) does not otherwise provide a 
specific deadline by which CMS providers must provide notice to 
subscribers regarding non-election.

B. Election Procedures

    27. Background. Sections 602(b)(2)(A), (B), and (D) establish 
certain requirements for CMS providers electing to provide or not to 
provide emergency alerts to subscribers. In several instances, the 
statute requires service providers to submit notifications to the 
Commission indicating their election, non-election, or their withdrawal 
from providing emergency alerts. Section 602(b)(2)(A) requires that, 
``within 30 days after the Commission issues its order under [section 
602(b)], each licensee providing commercial mobile service shall file 
an election with the Commission with respect to whether or not it 
intends to transmit emergency alerts.'' Similarly, under section 
602(b)(2)(B), a service provider that elects to transmit emergency 
alerts must ``notify the Commission of its election'' and ``agree to 
transmit such alerts in a manner consistent with the technical

[[Page 54517]]

standards, protocols, procedures, and other technical requirements 
implemented by the Commission.'' Further, section 602(b)(2)(D) requires 
the Commission to establish procedures relating to withdrawal of an 
election and the filing of late election notices with the Commission. 
Under section 602(b)(2)(D)(i), ``the Commission shall establish a 
procedure for a commercial mobile service licensee that has elected to 
transmit emergency alerts to withdraw its election without regulatory 
penalty or forfeiture upon advance written notification of the 
withdrawal to its affected subscribers.'' Finally, section 
602(b)(2)(D)(ii) requires ``the Commission to establish a procedure for 
a commercial mobile service licensee to elect to transmit emergency 
alerts at a date later than provided in subparagraph (A).''
    28. In the CMAS NPRM, we sought comment on all of these filing 
requirements. Specifically, we asked for comment on the most efficient 
method for accepting, monitoring and maintaining service provider 
election and withdrawal information. With respect to the initial 
election, we asked what CMS providers should provide in their filing if 
they indicate an intention to provide emergency alerts. For example, we 
sought comment on the CMSAAC's recommendation that, at a minimum, a CMS 
provider should explicitly commit to support the development and 
deployment of technology for the following: The ``C'' interface, the 
CMS provider Gateway, the CMS provider infrastructure, and the mobile 
device with CMAS functionality. Noting that the CMSAAC suggested that 
the required technology may not be in place for some time, we asked 
whether electing CMS providers should specify when they will be able to 
offer mobile alerting.
    29. In addition, we sought comment about how service providers 
should notify the Commission and attest to their adoption of the 
Commission's standards, protocols, procedures and other technical 
requirements. We asked whether we should require electronic filing of 
the submission and what CMS providers should submit in their report to 
the Commission if they indicate an intention to provide emergency 
alerts. Finally, we sought comment on the proper mechanism for service 
providers to file a withdrawal of election with the Commission. We 
identified two scenarios: First, where the service provider has elected 
to provide emergency alerts, but does not build the infrastructure, and 
second, where the service provider elects to provide emergency alerts 
and does so to all or some portion of its coverage area, but later 
chooses to discontinue the service. With respect to the latter 
scenario, we asked how much advance notification to subscribers the 
Commission should require prior to the service provider's withdrawal. 
We also asked what methods service providers should use to notify all 
existing subscribers at the service provider's various points of sale 
as well as whether the Commission should impose the same set of 
requirements considered under section 602(b)(1)(C) regarding 
notification to existing subscribers and potential subscribers that a 
service provider has elected not to provide emergency alerts.
    30. Comments. Wireless stakeholders agreed with the CMSAAC's 
recommendation regarding what notice service providers should include 
in their elections. For example, MetroPCS argues that the most 
effective way to provide notice to the Commission of a carrier's 
election should be through a written election provided at the time the 
election is required and, thereafter, within a reasonable time after 
the carrier decides to change its election. For CMS providers 
commencing service after the initial election deadline, MetroPCS 
recommends the submission of elections within 90 days after the 
licensee begins to market service in the licensed area. MetroPCS 
suggests that the election notice be on a license-by-license basis, but 
with the flexibility to consolidate elections over all or a portion of 
the CMS providers' licenses. MetroPCS recommends that service providers 
deciding to change their elections ``should be required to provide 
written notice to the Commission within 30 days of effectuating the 
change in election.''
    31. Some commenters suggest that the Commission maintain a register 
listing the carriers that elect to participate as well as those that do 
not. CPUC argues that it is ``essential'' that states have access to 
CMS providers' election notices and that such notices should include, 
at a minimum, the ``C'' reference point, the CMS provider Gateway, the 
CMS provider infrastructure, the mobile device with CMAS functionality 
and any geographic variations in the commitment to provide emergency 
alerts. CPUC further argues that CMS providers should also be required 
to file a report attesting to their adoption of the Commission's 
standards, protocols, procedures, and other technical requirements, and 
reporting on the CMS providers' arrangements for working with the Alert 
Aggregator, their technical connections with the Alert Gateway, the 
links used to provide that connection and a description of their 
technical capability for providing state, regional and local alerts. 
Verizon Wireless opposes any requirement to provide detailed 
information about its network capabilities, arguing that such 
information is competitively sensitive and highly confidential.
    32. Discussion. We find that the most efficient method for 
accepting, monitoring and maintaining service provider election and 
withdrawal information is to accept electronic submissions to the 
Commission. Accordingly, we require CMS providers to file 
electronically in PS Docket No. 08-146 a letter describing their 
election. Carriers electing, in part or in whole, to transmit emergency 
alerts shall attest that they agree to transmit such alerts in a manner 
consistent with the technical standards, protocols, procedures, and 
other technical requirements implemented by the Commission. Further, we 
accept the recommendation of the CMSAAC that a CMS provider electing to 
transmit, in part or in whole, emergency alerts, indicates its 
commitment to support the development and deployment of technology for 
the following: The ``C'' interface, the CMS provider Gateway, the CMS 
provider infrastructure, and mobile devices with CMAS functionality and 
support of the CMS provider selected technology. We require CMS 
providers to submit their letter of election within 30 days after the 
release of this Order. Due to the ongoing development of the Alert 
Aggregator/Gateway system and the Government Interface Design 
specifications, we do not require CMS providers electing to transmit, 
in part or in whole, emergency alerts to specify when they will be able 
to offer mobile alerting. With respect to commenters seeking the 
submission of detailed information about the links used to provide that 
connection and a description of their technical capability for 
providing state, regional and local alerts, we find that the statutory 
language does not require provision of this information. Further, we 
find that it would be unduly burdensome for carriers to provide such 
information and, therefore, reject those suggestions. We agree with 
Verizon Wireless that requiring such information could force providers 
to divulge competitively sensitive information. Additionally, requiring 
such information imposes substantial administrative and technical 
burdens on providers that are inconsistent with the voluntary nature of 
the CMAS program.
    33. Section 602(b)(2)(D)(i) requires the Commission to establish a 
procedure for a commercial mobile service licensee

[[Page 54518]]

that has elected to transmit emergency alerts to withdraw its election 
without regulatory penalty or forfeiture upon advance written 
notification of the withdrawal to its affected subscribers. Thus, we 
require a CMS provider that withdraws its election to transmit 
emergency alerts to notify all affected subscribers 60 days prior to 
the withdrawal of the election. Carriers that withdraw their election 
to transmit alerts shall be subject to the notification requirements 
described in paragraph 37. We also require carriers to notify the 
Commission of their withdrawal, including information on the scope of 
their withdrawal, at least 60 days prior to electing to do so. Such a 
requirement is consistent with the requirement under section 
602(b)(2)(D)(i) that we establish procedures for election withdrawal, 
and with the WARN Act's provision requiring providers to inform the 
Commission of their election to participate in the CMAS.
    34. With respect to section 602(b)(2)(D)(ii), requiring that the 
Commission ``establish a procedure for a commercial mobile service 
licensee to elect to transmit emergency alerts at a date later than 
provided in subparagraph (A),'' we require such CMS licensees, 30 days 
prior to offering this service, to file electronically their election 
to transmit, in part or in whole, or to not transmit emergency alerts 
in the manner and with the attestations described above. This mirrors 
the Commission's rules for providers who elect immediately and provides 
a sufficient and fair amount of time for providers to elect to 
participate at a later date.

C. Other Issues

1. Subscriber Termination of Service
    35. Background. Section 602(b)(2)(D)(iii) requires the Commission 
to establish a procedure ``under which a subscriber may terminate a 
subscription to service provided by a commercial mobile service 
licensee that withdraws its election without penalty or early 
termination fee.'' We sought comment on the procedures necessary to 
implement this provision. Specifically, we asked whether notification 
in the terms and conditions of service is sufficient to apprise 
subscribers of their right to discontinue service without penalty or 
termination fee, whether the Commission should prescribe specific 
procedures for subscribers and whether service providers should submit 
to the Commission a description of their procedure for informing 
subscribers of their right to terminate service.
    36. Comments. CTIA argues that the Commission should ``regulate 
sparingly in the area of customer termination of subscriber agreements 
in the event that a wireless provider withdraws its election to 
participate in the CMAS.'' Further, it states that ``heavy-handed 
regulation and oversight both consumes Commission resources and adds 
cost to the overall provision of service (and, in turn, adds to 
subscriber cost)'' and ``adopting a procedure that fits with a 
company's other procedures and policies will make the option more user-
friendly for the customer familiar with the wireless provider.'' CPUC 
states that the FCC should prescribe specific procedures for informing 
customers and accomplishing terminations rather than having providers 
design their own procedures. CPUC argues the Commission should design a 
process that includes notice to customers in clear and explicit 
language citing the statute and that the notices should facilitate the 
ability of a customer to automatically respond and immediately 
discontinue service. CPUC adds that customer acknowledgment of this 
information should be required by signature and dating or some 
corresponding affirmative action as done for non-participating 
providers at the point of initial sale.
    37. Discussion. We find that because section 602(b)(2)(D)(iii), on 
its face, clearly provides rights specifically aimed at subscribers--
that they may terminate service without penalty or early termination 
fee if a provider withdraws its initial election to participate in 
CMAS--subscribers require individual notice of their rights under the 
WARN Act. We further find that carriers must notify each affected 
subscriber individually in clear and conspicuous language, citing the 
statute, of the subscriber's right to terminate service without penalty 
or early termination fee should a carrier withdraw its initial 
election. We do not otherwise adopt any specific methods or procedures 
for implementing this individualized notice, but rather leave it to CMS 
providers to determine how best to communicate these statutory rights 
to their customers.
2. Subscriber Alert Opt-Out
    38. Background. Section 602(b)(2)(E) provides that ``[a]ny 
commercial mobile service licensee electing to transmit emergency 
alerts may offer subscribers the capability of preventing the 
subscriber's device from receiving such alerts, or classes of such 
alerts, other than an alert issued by the President.'' The CMSAAC 
recommended that CMS providers should offer their subscribers a simple 
opt-out process. With the exception of Presidential messages, which are 
always transmitted, the CMSAAC recommended that the process should 
allow the choice to opt out of ``all messages,'' ``all severe 
messages,'' and AMBER Alerts. The CMSAAC suggested that, because of 
differences in the way CMS providers and device manufacturers provision 
their menus and user interfaces, CMS providers and device manufacturers 
should have flexibility about how to present the opt-out choices to 
subscribers. In the CMAS First R&O, the Commission further defined 
these three alert classes as: (1) Presidential Alert, (2) Imminent 
Threat Alert, and (3) Child Abduction Emergency/AMBER Alert. We sought 
comment on the recommendations of the CMSAAC with respect to three 
choices of message types that a subscriber should be allowed to choose 
to opt out of receiving. Additionally, we sought comment on the CMSAAC 
recommendation that CMS providers and device manufacturers should have 
flexibility or whether the Commission should establish baseline 
criteria for informing subscribers of this capability and if any 
uniform standards for conveying that information to subscribers is 
required. We also sought comment on whether more classes of alerts 
should be considered.
    39. Comments. Many commenters who addressed this issue expressed 
support for the CMSAAC's recommendations. For example, T-Mobile argues 
that, given the different types of handsets and the wide array of menu 
interfaces offered by CMS providers, the Commission should not impose 
baseline standards or a uniform methodology for disabling alerts on 
this array of mobile handsets or devices. AAPC states that carriers 
should be permitted to manage subscriber opt-outs of alerts at the 
network terminal level and not just at the subscriber device level. 
Wireless RERC argues that CMS providers should make it clear to the 
subscriber what opting-out means--that, for example, they will not 
receive tornado warnings. CPUC agrees, stating that CMS providers 
should be required to inform subscribers that they have the choice of 
opting out of alerts.
    40. One party--PTT--objected to the provision of any subscriber 
opt-out mechanism. PTT states that an opt-out capability will defeat 
the purpose of the program if a large number of potential users opt out 
due to concerns about battery usage. It states that if such a 
``requirement'' moves forward, it would prefer that subscribers use the 
SMS filtering features of their own device to

[[Page 54519]]

filter undesired messages, rather than making this a universal feature 
of the program.
    41. Discussion. We agree with the CMSAAC proposed simple opt-out 
program. The process should allow the choice to opt out of ``Imminent 
Threat Alert messages'' and ``Child Abduction Emergency/AMBER Alert 
messages.'' This allows consumers the flexibility to choose what type 
of message they wish to receive while still ensuring that customers are 
apprised of the most severe threats as communicated by Presidential 
Alert messages, which are always transmitted. However, because of the 
differences in how CMS providers and device manufacturers provision 
menus and user interfaces, we afford CMS providers flexibility to 
provide opt-out choices consistent with their own system. While we 
assume, as proposed by the Wireless RERC, that providers would make 
clear to consumers what each option means, and provide examples of what 
types of messages the customer may not receive as a result of opting-
out so that consumers can make an informed choice, we do not require 
providers to include such information because there is no corresponding 
requirement in the WARN Act.
    42. We disagree with PTT's argument that opt-out capability will 
defeat the purpose of the program. First, the WARN Act specifically 
grants providers the option to allow subscribers to opt-out of all but 
Presidential alerts. It would be inconsistent with the clear intent of 
Congress for the Commission to disallow this option. Secondly, the 
Alert Gateway used to transmit CMAS messages will most likely be 
separate and distinct from the SMS gateway. Therefore, subscribers may 
be unable to use their SMS filtering feature to filter CMAS messages.
3. Cost Recovery
    43. Background. Section 602(b)(2)(C) states ``[a] commercial mobile 
service licensee that elects to transmit emergency alerts may not 
impose a separate or additional charge for such transmission or 
capability.'' In the Notice, we asked whether section 602(b)(2)(C)'s 
reference to ``transmission or capability'' should be read narrowly and 
sought comment whether this provision precludes a participating CMS 
provider's ability to recover costs associated with the provision of 
alerts. Noting, for example, that much of the alert technology will 
reside in the subscriber's mobile device, we asked whether CMS 
providers should recover CMAS-related developmental costs from the 
subscriber through mobile device charges based on a determination that 
mobile devices lie outside the ``transmission or capability'' language 
of the section. We also asked about cost recovery in connection with 
CMAS-related services and technologies that are not used to deliver 
CMAS.
    44. Comments. Many of those commenting on the issue argue that 
participating CMS providers should be allowed to recover development, 
maintenance and manufacturing costs from their subscribers. AT&T urges 
the Commission to declare that costs incurred in the development of 
CMAS and in the provision of mobile emergency alerts are recoverable 
under the WARN Act and that cost recovery is consistent with the plain 
language of the Act. AT&T argues that the statutory language concerning 
separate or additional charges ``only addresses the appearance or 
presentation of charges on a subscriber's bill for the emergency alert 
mandate,'' ``does not in any way limit a carrier's ability to recover 
costs associated with CMAS implementation,'' and ``to limit cost 
recovery in this way would require the imposition of rate regulation 
and a regulatory accounting regime, which the Commission specifically 
has rejected for the competitive wireless industry.'' SouthernLINC 
argues that section 602(b)(2)(C) should be interpreted to apply only to 
separate charges associated with the specific costs involved in 
transmitting each alert and that subscribers should not be charged a 
per-alert fee. It argues, however, that carriers should be permitted to 
recover costs associated with the implementation and ongoing system 
management and any vendor-imposed handset costs. Such an approach, 
SouthernLINC argues, would encourage greater carrier participation. T-
Mobile agrees, stating that it is fair to consumers who choose to buy a 
more sophisticated handset to cover some or all of the costs of the 
handset's development. On the other hand, Wireless RERC argues that CMS 
providers should be treated no differently than EAS participants who 
must bear the costs of their EAS participation. It states further that 
``since CMAS is starting as a voluntary system and CMS providers are 
not allowed to impose a separate or additional charge for such 
transmission or capability, the Commission should review its mobile 
services regulations to implement any incentives that might offset CMS 
expenses and encourage CMS providers to participate in CMAS.''
    45. Discussion. We agree with those commenters who urge us to find 
that section 602(b)(2)(C) precludes CMS providers from imposing a 
``separate or additional charge'' for the transmission of CMAS alerts 
or the capability to transmit such alerts, but that such language does 
not preclude recovery of CMAS-associated costs, including costs related 
to the development of customer handsets. Section 602(b)(2)(C) states 
that ``[a] commercial mobile service licensee that elects to transmit 
emergency alerts may not impose a separate or additional charge for 
such transmission or capability.'' We interpret this language to mean 
that CMS providers shall not separately or additionally charge 
customers for provided alerts. But nothing in this statutory language--
and nothing in the statute's legislative history--indicates an 
intention on the part of Congress to preclude recovery of, for example, 
CMAS-related development and implementation costs. In this regard, we 
note that Congress is well aware of this Commission's Title III 
regulation of wireless carriers, which provides for flexible recovery 
of costs through assessed rates and other means. We conclude that, if 
Congress had wanted to preclude cost recovery, as opposed to merely 
prohibiting separate or additional charges for alert transmission or 
alert transmission capability, it would have said so. We also find that 
permitting recoverable costs associated with the provision of CMAS 
alerts would be consistent with the voluntary nature of the CMAS and 
our general policy to encourage participation in the CMAS.
    46. Although we make clear that section 602(b)(2)(C) does not 
prevent recovery of CMAS-related costs by CMS providers, we do not 
mandate any particular method of cost recovery. CMS providers have the 
discretion to absorb service-related costs or to pass on all or 
portions of such costs to their customers pursuant to generally-
developed service rates. We also find that, because CMS providers 
operate in a competitive marketplace, market forces will guide 
decisions by CMS providers in recovering costs. Finally, we find that 
the language of section 602(b)(2)(C) is, on its face, limited to 
charges for alert transmissions and the capability to provide such 
transmissions and, accordingly, does not prohibit cost recovery, as 
described here, for specially-designed or augmented customer handsets, 
or in connection with CMAS-related services that share use of common 
technology but are not themselves CMAS alerts, for example, for 
provision of traffic alerts.
4. CMAS Deployment Timeline
    47. Background. In its recommendations, the CMSAAC

[[Page 54520]]

proposed a timeline for implementation of the CMAS. According to the 
CMSAAC, it will take twelve months from the date of submission of the 
CMSAAC's recommendations to complete an industry standardization 
process. Participating CMS providers would then need an additional 
twenty-four months from the date of completion of the standardization 
process for CMAS development and testing. Initial CMS provider testing 
and deployment would occur 18-24 months from the date the industry 
standardization process is completed.
    48. The specifics of the timeline recommended by the CMSAAC are 
indicated in Figure 1 below.
[GRAPHIC] [TIFF OMITTED] TR22SE08.010

    49. The CMSAAC based its proposed deployment timeline upon the 
assumptions that (1) the CMSAAC recommendations would be accepted 
without any major technical change and (2) the government documentation 
and deliverables would be available at the milestone dates indicated on 
the timeline. As indicated in Figure 1, when creating this timeline, 
the CMSAAC assumed that the Federal Alert Aggregator and Gateway would 
provide the Government Interface Design specifications in January 2008. 
The CMSAAC also identified other factors it stated were outside of the 
CMS providers' control that would influence the deployment and 
availability of the CMAS, such as manufacturer development cycles for 
equipment in the CMS provider infrastructure, manufacturer commitment 
to support the delivery technology of choice by the CMS provider, and 
mobile device manufacturer development of the required CMAS 
functionality on the mobile devices.
    50. As discussed above, on May 30, 2008, the Department of Homeland 
Security's Federal Emergency Management Agency (FEMA) announced that it 
will perform the CMAS Alert Aggregator/Gateway role. FEMA noted that 
the Alert Aggregator/Gateway system has not yet been designed or 
engineered, and did not indicate when it would make the Government 
Interface Design specifications available to the other CMAS 
participants. FEMA did note, however, that it would work with DHS 
Science and Technology scientists to finalize the technical solutions 
and with the Federal Communications Commission to make the Alert 
Aggregator system operational. We also note that the Alliance for 
Telecommunications Industry Solutions (ATIS) and the Telecommunications 
Industry Association (TIA) are currently developing standards related 
to the CMAS, particularly regarding the development of standards and 
protocols for the ``C'' interface.
    51. Comments. As we indicated in our CMAS First R&O, a majority of 
commenters that addressed the issue supported the CMSAAC's proposed 
deployment timeline.
    52. Discussion. In our recent Order on Reconsideration, we noted 
our intent that our rules would be implemented in a manner consistent 
with the CMSAAC recommended timeline. We agree with commenters who 
argue that the Alert Aggregator/Gateway must be a centralized, federal 
entity. As noted above FEMA has only recently indicated that it can 
serve as the Federal government entity that will provide the Alert 
Aggregator and Gateway functions, and has not stated when it would be 
able to provide the Government Interface Design specifications. 
However, in order to ensure that all Americans have the capability to 
receive timely and accurate alerts, warnings, and critical information 
regarding disasters and other emergencies irrespective of what 
communications technologies they use, we find that if FEMA has not 
issued its Government Interface Design specifications by December 31, 
2008, the Commission will reconvene an emergency meeting of the CMSAAC 
to address the issuance of Government Interface Design specifications.
    53. Because of this ambiguity and the need to ensure timely 
deployment of the CMAS, regardless of the federal entity serving as the 
Aggregator/Gateway, the CMAS timeline rules we adopt today do not 
implement the specific target dates recommended by the CMSAAC. Rather, 
as stated in our recent Order on Reconsideration, participating CMS 
providers must begin development and testing of the CMAS in a manner 
consistent with our new part 10 rules no later than ten months from the 
date that FEMA makes the Government Interface Design specifications 
available. As we noted in the Order on Reconsideration, this 10-month 
period corresponds to the interval recommended by the CMSAAC for the 
completion of industry standards necessary for CMAS development and 
testing. However, we further require that, at the end of this 10-month 
period, participating CMS providers shall begin

[[Page 54521]]

an eighteen month implementation and deployment period before the CMAS 
can be made available to the public. We recognize that this is an 
accelerated deployment schedule compared to that recommended by the 
CMSAAC. Specifically, following the CMSAAC recommendations, the 
timeframe would be as long as twenty-four months following the 10-month 
industry standardization process, as compared to the eighteen months 
that we order today. Because of the important public safety 
considerations before us, including the need for the provision of 
timely and vital emergency information to an increasingly mobile 
society and our continuing mandate under the Communications Act to 
promote the safety of life and property through the use of wire and 
radio communications, we find that this accelerated schedule is in the 
public interest. Moreover, providing an eighteen month implementation 
and deployment period still allows more than twenty-four months from 
the date the Government Interface Design specifications are available 
for deployment to occur.
    54. We also agree with the CMSAAC recommendations that during this 
development and deployment period, the Alert Gateway and Alert 
Aggregator should collaborate with participating CMS providers to test 
the CMAS. In light of what we expect to be a collaborative process, the 
considerable involvement of the carriers to date in the development of 
the CMAS system and operational parameters, and the compelling need to 
provide this capability to the public in a prompt fashion, we believe 
even this accelerated schedule provides a sufficient amount of time to 
CMS providers for deployment of the CMAS.

Procedural Matters

D. Final Regulatory Flexibility Act Analysis

    55. As required by section 604 of the Regulatory Flexibility Act 
(RFA), 5 U.S.C. 604, the Commission has prepared a Final Regulatory 
Flexibility Analysis of the possible impact of the rule changes 
contained in this R&O on small entities. The Final Regulatory 
Flexibility Act Analysis is set forth in Appendix A, infra. The 
Commission's Consumer & Government Affairs Bureau, Reference 
Information Center, will send a copy of this R&O, including the Final 
Regulatory Flexibility Act Analysis, to the Chief Counsel for Advocacy 
of the Small Business Administration.

E. Final Paperwork Reduction Act of 1995 Analysis

    56. The initial election that CMS providers must make pursuant to 
section 602(b)(2)(A) of the WARN Act, discussed above, has been granted 
pre-approval by OMB. This R&O may also contain new information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13. If the Commission determines that the R&O 
contains collection requirements subject to the PRA, it will be 
submitted to the Office of Management and Budget (OMB) for review under 
section 3507 of the PRA at the appropriate time and the Commission will 
publish a separate notice inviting comment. At that time, OMB, the 
general public and other Federal agencies will be invited to comment on 
the new or modified information collection requirements contained in 
this proceeding. In addition, we note that, pursuant to the Small 
Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.C.S. 3506(c)(4), we will seek specific comment on how the Commission 
might ``further reduce the information collection burden for small 
business concerns with fewer than 25 employees.''

F. Congressional Review Act Analysis

    57. The Commission will send a copy of the R&O to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act, see 5 U.S.C. 801(a)(1)(A).

G. Alternative Formats

    58. Alternative formats (computer diskette, large print, audio 
cassette, and Braille) are available to persons with disabilities by 
sending an e-mail to <a href="/cdn-cgi/l/email-protection#2c6a6f6f191c186c4a4f4f024b435a"><span class="__cf_email__" data-cfemail="85c3c6c6b0b5b1c5e3e6e6abe2eaf3">[email protected]</span></a> or calling the Consumer and 
Governmental Affairs Bureau at (202) 418-0530, TTY (202) 418-0432.

Ordering Clauses

    59. It is ordered, that pursuant to sections 1, 4(i), and (o), 201, 
303(r), 403 and 706 of the Communications Act of 1934, as amended, 47 
U.S.C. 151, 154(i) and (o), 201, 303(r) 403, and 606, as well as by 
sections 602(a), (b), (c), (f), 603, 604 and 606 of the WARN Act, this 
R&O is hereby adopted. The rules adopted in the R&O become effective 
October 22, 2008. Election to participate in CMAS must be made no later 
than 30 days after the release of this order.
    It is further ordered that the Commission's Consumer and Government 
Affairs Bureau, Reference Information Center, shall send a copy of this 
R&O, including the Final Regulatory Flexibility Analysis, to the Chief 
Council for Advocacy of the Small Business Administration.

Final Regulatory Flexibility Analysis

    60. 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 in PSHSB Docket 07-
287 (CMAS NPRM). The Commission sought written public comments on the 
proposals in the CMAS NPRM, including comment on the IRFA. Comments on 
the IRFA were to have been explicitly identified as being in response 
to the IRFA and were required to be filed by the same deadlines as that 
established in section IV of the CMAS NPRM for other comments to the 
CMAS NPRM. The Commission sent a copy of the CMAS NPRM, including the 
IRFA, to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA). In addition, the CMAS NPRM and IRFA were 
published in the Federal Register.

H. Need for, and Objectives of, the Order

    61. Section 602(b) of the WARN Act requires the Commission to 
``complete a proceeding--(A) to allow any licensee providing commercial 
mobile service * * * to transmit emergency alerts to subscribers to, or 
users of, the commercial mobile service provided by such license; (B) 
to require any licensee providing commercial mobile service that 
elects, in whole or in part, * * * not to transmit emergency alerts to 
provide clear and conspicuous notice at the point of sale of any 
devices with which its commercial mobile service is included, that it 
will not transmit such alerts via the service it provides for the 
device; and (C) to require any licensee providing commercial mobile 
service that elects * * * not to transmit emergency alerts to notify 
its existing subscribers of its election.'' Although the CMAS NPRM 
solicited comment on issues related to section 602(a) (CMS alert 
regulations) and 602(c) (Public Television Station equipment 
requirements), this CMAS Third R&O only addresses issues raised by 
section 602(b) of the WARN Act. Accordingly, this FRFA only addressees 
the manner in which any commenters to the IRFA addressed the 
Commission's adoption of standards and requirements for the CMAS as 
required by section 602(b) of the WARN Act.
    62. This CMAS Third R&O adopts rules necessary to allow any CMS 
provider to transmit emergency alerts to its subscribers; to require 
that CMS providers that elect, in whole or in part,

[[Page 54522]]

not to transmit emergency alerts provide clear and conspicuous notice 
at the point of sale of any CMS devices that it will not transmit such 
alerts via that device; and to require CMS providers that elect not to 
transmit emergency alerts to notify their existing subscribers of their 
election.

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

    63. There were no comments filed that specifically addressed the 
IRFA. The only commenter that explicitly identified itself as a small 
business was Interstate Wireless, Inc., which supported the 
Commission's adoption of the Commercial Mobile Service Alert Advisory 
Committee's (CMSAAC) recommendations. Interstate Wireless did not 
comment specifically on the IRFA, nor did it comment on any issues 
directly relating to section 602(b) of the WARN Act.

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

    64. 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 Small Business 
Administration (SBA).
    65. Wireless Telecommunications Carriers (except Satellite). Since 
2007, the SBA has recognized wireless firms within this new, broad, 
economic census category. Prior to that time, the SBA had developed a 
small business size standard for wireless firms within the now-
superseded census categories of ``Paging'' and ``Cellular and Other 
Wireless Telecommunications.'' Under the present and prior categories, 
the SBA has deemed a wireless business to be small if it has 1,500 or 
fewer employees. Because Census Bureau data are not yet available for 
the new category, we will estimate small business prevalence using the 
prior categories and associated data. For the first category of Paging, 
data for 2002 show that there were 807 firms that operated for the 
entire year. Of this total, 804 firms had employment of 999 or fewer 
employees, and three firms had employment of 1,000 employees or more. 
For the second category of Cellular and Other Wireless 
Telecommunications, data for 2002 show that there were 1,397 firms that 
operated for the entire year. Of this total, 1,378 firms had employment 
of 999 or fewer employees, and 19 firms had employment of 1,000 
employees or more. Thus, using the prior categories and the available 
data, we estimate that the majority of wireless firms can be considered 
small.
    66. Cellular Service. As noted, the SBA has developed a small 
business size standard for small businesses in the category ``Wireless 
Telecommunications Carriers (except satellite).'' Under that SBA 
category, a business is small if it has 1,500 or fewer employees. Since 
2007, the SBA has recognized wireless firms within this new, broad, 
economic census category. Prior to that time, the SBA had developed a 
small business size standard for wireless firms within the now-
superseded census categories of ``Paging'' and ``Cellular and Other 
Wireless Telecommunications.'' Accordingly, the pertinent data for this 
category is contained within the prior Wireless Telecommunications 
Carriers (except Satellite) category.
    67. Auctions. Initially, we note 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. Also, the Commission does not 
generally track subsequent business size unless, in the context of 
assignments or transfers, unjust enrichment issues are implicated.
    68. Broadband Personal Communications Service. The broadband 
Personal Communications Service (PCS) spectrum is divided into six 
frequency blocks designated A through F, and the Commission has held 
auctions for each block. The Commission has created a small business 
size standard for Blocks C and F as an entity that has average gross 
revenues of less than $40 million in the three previous calendar years. 
For Block F, an additional small business size standard for ``very 
small business'' was added and is defined as an entity that, together 
with its affiliates, has average gross revenues of not more than $15 
million for the preceding three calendar years. These small business 
size standards, in the context of broadband PCS auctions, have been 
approved by the SBA. No small businesses within the SBA-approved small 
business size standards bid successfully for licenses in Blocks A and 
B. There were 90 winning bidders that qualified as small entities in 
the C Block auctions. A total of 93 ``small'' and ``very small'' 
business bidders won approximately 40 percent of the 1,479 licenses for 
Blocks D, E, and F. On March 23, 1999, the Commission reauctioned 155 
C, D, E, and F Block licenses; there were 113 small business winning 
bidders. On January 26, 2001, the Commission completed the auction of 
422 C and F PCS licenses in Auction 35. Of the 35 winning bidders in 
this auction, 29 qualified as ``small'' or ``very small'' businesses. 
Subsequent events concerning Auction 35, including judicial and agency 
determinations, resulted in a total of 163 C and F Block licenses being 
available for grant.
    69. Narrowband Personal Communications Service. The Commission held 
an auction for Narrowband Personal Communications Service (PCS) 
licenses that commenced on July 25, 1994, and closed on July 29, 1994. 
A second commenced on October 26, 1994 and closed on November 8, 1994. 
For purposes of the first two Narrowband PCS auctions, ``small 
businesses'' were entities with average gross revenues for the prior 
three calendar years of $40 million or less. Through these auctions, 
the Commission awarded a total of forty-one licenses, 11 of which were 
obtained by four small businesses. To ensure meaningful participation 
by small business entities in future auctions, the Commission adopted a 
two-tiered small business size standard in the Narrowband PCS Second 
R&O. A ``small business'' is 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 an entity that, together with affiliates and controlling interests, 
has average gross revenues for the three preceding years of not more 
than $15 million. The SBA has approved these small business size 
standards. A third auction commenced on October 3, 2001 and closed on 
October 16, 2001. Here, five bidders won 317 (MTA and nationwide) 
licenses. Three of these claimed status as a small or very small entity 
and won 311 licenses.
    70. Wireless Communications Services. This service can be used for 
fixed, mobile, radiolocation, and digital audio broadcasting satellite 
uses in the 2305-2320 MHz and 2345-2360 MHz bands. The Commission 
defined ``small business'' for the wireless communications services 
(WCS) auction as an entity with average gross revenues of $40 million 
for each of the three preceding years, and a ``very small

[[Page 54523]]

business'' as an entity with average gross revenues of $15 million for 
each of the three preceding years. The SBA has approved these 
definitions. The Commission auctioned geographic area licenses in the 
WCS service. In the auction, which commenced on April 15, 1997 and 
closed on April 25, 1997, there were seven bidders that won 31 licenses 
that qualified as very small business entities, and one bidder that won 
one license that qualified as a small business entity.
    71. 700 MHz Guard Bands Licenses. In the 700 MHz Guard Bands Order, 
the Commission adopted size standards for ``small businesses'' and 
``very small businesses'' for purposes of determining their eligibility 
for special provisions such as bidding credits and installment 
payments. A small business in this service is an entity that, together 
with its affiliates and controlling principals, has average gross 
revenues not exceeding $40 million for the preceding three years. 
Additionally, a ``very small business'' is 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. SBA approval of these definitions is not required. An auction of 
52 Major Economic Area (MEA) licenses for each of two spectrum blocks 
commenced on September 6, 2000, and closed on September 21, 2000. Of 
the 104 licenses auctioned, 96 licenses were sold to nine bidders. Five 
of these bidders were small businesses that won a total of 26 licenses. 
A second auction of remaining 700 MHz Guard Bands licenses commenced on 
February 13, 2001, and closed on February 21, 2001. All eight of the 
licenses auctioned were sold to three bidders. One of these bidders was 
a small business that won a total of two licenses. Subsequently, in the 
700 MHz Second R&O, the Commission reorganized the licenses pursuant to 
an agreement among most of the licensees, resulting in a spectral 
relocation of the first set of paired spectrum block licenses, and an 
elimination of the second set of paired spectrum block licenses (many 
of which were already vacant, reclaimed by the Commission from Nextel). 
A single licensee that did not participate in the agreement was 
grandfathered in the initial spectral location for its two licenses in 
the second set of paired spectrum blocks. Accordingly, at this time 
there are 54 licenses in the 700 MHz Guard Bands.
    72. 700 MHz Band Commercial Licenses. There is 80 megahertz of non-
Guard Band spectrum in the 700 MHz Band that is designated for 
commercial use: 698-757, 758-763, 776-787, and 788-793 MHz Bands. With 
one exception, the Commission adopted criteria for defining two groups 
of small businesses for purposes of determining their eligibility for 
bidding credits at auction. These two categories are: (1) ``Small 
business,'' which is defined as an entity that has attributed average 
annual gross revenues that do not exceed $15 million during the 
preceding three years; and (2) ``very small business,'' which is 
defined as an entity with attributed average annual gross revenues that 
do not exceed $40 million for the preceding three years. In Block C of 
the Lower 700 MHz Band (710-716 MHz and 740-746 MHz), which was 
licensed on the basis of 734 Cellular Market Areas, the Commission 
adopted a third criterion for determining eligibility for bidding 
credits: An ``entrepreneur,'' which is defined as an entity that, 
together with its affiliates and controlling principals, has average 
gross revenues that are not more than $3 million for the preceding 
three years. The SBA has approved these small size standards.
    73. An auction of 740 licenses for Blocks C (710-716 MHz and 740-
746 MHz) and D (716-722 MHz) of the Lower 700 MHz Band commenced on 
August 27, 2002, and closed on September 18, 2002. Of the 740 licenses 
available for auction, 484 licenses were sold to 102 winning bidders. 
Seventy-two of the winning bidders claimed small business, very small 
business, or entrepreneur status and won a total of 329 licenses. A 
second auction commenced on May 28, 2003, and closed on June 13, 2003, 
and included 256 licenses: Five EAG licenses and 251 CMA licenses. 
Seventeen winning bidders claimed small or very small business status 
and won 60 licenses, and nine winning bidders claimed entrepreneur 
status and won 154 licenses.
    74. The remaining 62 megahertz of commercial spectrum is currently 
scheduled for auction on January 24, 2008. As explained above, bidding 
credits for all of these licenses will be available to ``small 
businesses'' and ``very small businesses.''
    75. Advanced Wireless Services. In the AWS-1 R&O, the Commission 
adopted rules that affect applicants who wish to provide service in the 
1710-1755 MHz and 2110-2155 MHz bands. The Commission did not know 
precisely the type of service that a licensee in these bands might seek 
to provide. Nonetheless, the Commission anticipated that the services 
that will be deployed in these bands may have capital requirements 
comparable to those in the broadband Personal Communications Service 
(PCS), and that the licensees in these bands will be presented with 
issues and costs similar to those presented to broadband PCS licensees. 
Further, at the time the broadband PCS service was established, it was 
similarly anticipated that it would facilitate the introduction of a 
new generation of service. Therefore, the AWS-1 R&O adopts the same 
small business size definition that the Commission adopted for the 
broadband PCS service and that the SBA approved. In particular, the 
AWS-1 R&O defines 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. The 
AWS-1 R&O also provides small businesses with a bidding credit of 15 
percent and very small businesses with a bidding credit of 25 percent.
    76. Common Carrier Paging. As noted, the SBA has developed a small 
business size standard for wireless firms within the broad economic 
census category of ``Wireless Telecommunications Carriers (except 
Satellite).'' Under this category, the SBA deems a business to be small 
if it has 1,500 or fewer employees. Since 2007, the SBA has recognized 
wireless firms within this new, broad, economic census category. Prior 
to that time, the SBA had developed a small business size standard for 
wireless firms within the now-superseded census categories of 
``Paging'' and ``Cellular and Other Wireless Telecommunications.'' 
Under the present and prior categories, the SBA has deemed a wireless 
business to be small if it has 1,500 or fewer employees. Because Census 
Bureau data are not yet available for the new category, we will 
estimate small business prevalence using the prior categories and 
associated data. For the first category of Paging, data for 2002 show 
that there were 807 firms that operated for the entire year. Of this 
total, 804 firms had employment of 999 or fewer employees, and three 
firms had employment of 1,000 employees or more. For the second 
category of Cellular and Other Wireless Telecommunications, data for 
2002 show that there were 1,397 firms that operated for the entire 
year. Of this total, 1,378 firms had employment of 999 or fewer 
employees, and 19 firms had employment of 1,000 employees or more. 
Thus, using the prior categories and the available data, we estimate 
that the majority of wireless firms can be considered small. Thus, 
under this

[[Page 54524]]

category, the majority of firms can be considered small.
    77. In the Paging Third R&O, we developed a small business size 
standard for ``small businesses'' and ``very small businesses'' for 
purposes of determining their eligibility for special provisions such 
as bidding credits and installment payments. A ``small business'' is an 
entity that, together with its affiliates and controlling principals, 
has average gross revenues not exceeding $15 million for the preceding 
three years. Additionally, a ``very small business'' is an entity that, 
together with its affiliates and controlling principals, has average 
gross revenues that are not more than $3 million for the preceding 
three years. The SBA has approved these small business size standards. 
An auction of Metropolitan Economic Area licenses commenced on February 
24, 2000, and closed on March 2, 2000. Of the 985 licenses auctioned, 
440 were sold. Fifty-seven companies claiming small business status 
won. Also, according to Commission data, 365 carriers reported that 
they were engaged in the provision of paging and messaging services. Of 
those, we estimate that 360 are small, under the SBA-approved small 
business size standard.
    78. Wireless Communications Service. This service can be used for 
fixed, mobile, radiolocation, and digital audio broadcasting satellite 
uses. The Commission established small business size standards for the 
wireless communications services (WCS) auction. A ``small business'' is 
an entity with average gross revenues of $40 million for each of the 
three preceding years, and a ``very small business'' is an entity with 
average gross revenues of $15 million for each of the three preceding 
years. The SBA has approved these small business size standards. The 
Commission auctioned geographic area licenses in the WCS service. In 
the auction, there were seven winning bidders that qualified as ``very 
small business'' entities, and one that qualified as a ``small 
business'' entity.
    79. Wireless Communications Equipment Manufacturers. While these 
entities are merely indirectly affected by our action, we are 
describing them to achieve a fuller record. The Census Bureau defines 
this category as follows: ``This industry comprises establishments 
primarily engaged in manufacturing radio and television broadcast and 
wireless communications equipment. Examples of products made by these 
establishments are: Transmitting and receiving antennas, cable 
television equipment, GPS equipment, pagers, cellular phones, mobile 
communications equipment, and radio and television studio and 
broadcasting equipment.'' The SBA has developed a small business size 
standard for Radio and Television Broadcasting and Wireless 
Communications Equipment Manufacturing, which is: All such firms having 
750 or fewer employees. According to Census Bureau data for 2002, there 
were a total of 1,041 establishments in this category that operated for 
the entire year. Of this total, 1,010 had employment of under 500, and 
an additional 13 had employment of 500 to 999. Thus, under this size 
standard, the majority of firms can be considered small.
    80. Radio and Television Broadcasting and Wireless Communications 
Equipment Manufacturing. The Census Bureau defines this category as 
follows: ``This industry comprises establishments primarily engaged in 
manufacturing radio and television broadcast and wireless 
communications equipment. Examples of products made by these 
establishments are: transmitting and receiving antennas, cable 
television equipment, GPS equipment, pagers, cellular phones, mobile 
communications equipment, and radio and television studio and 
broadcasting equipment.'' The SBA has developed a small business size 
standard for Radio and Television Broadcasting and Wireless 
Communications Equipment Manufacturing, which is: All such firms having 
750 or fewer employees. According to Census Bureau data for 2002, there 
were a total of 1,041 establishments in this category that operated for 
the entire year. Of this total, 1,010 had employment of under 500, and 
an additional 13 had employment of 500 to 999. Thus, under this size 
standard, the majority of firms can be considered small.
    81. Software Publishers. While these entities are merely indirectly 
affected by our action, we are describing them to achieve a fuller 
record. These companies may design, develop or publish software and may 
provide other support services to software purchasers, such as 
providing documentation or assisting in installation. The companies may 
also design software to meet the needs of specific users. The SBA has 
developed a small business size standard of $23 million or less in 
average annual receipts for the category of Software Publishers. For 
Software Publishers, Census Bureau data for 2002 indicate that there 
were 6,155 firms in the category that operated for the entire year. Of 
these, 7,633 had annual receipts of under $10 million, and an 
additional 403 firms had receipts of between $10 million and $24, 
999,999. For providers of Custom Computer Programming Services, the 
Census Bureau data indicate that there were 32,269 firms that operated 
for the entire year. Of these, 31,416 had annual receipts of under $10 
million, and an additional 565 firms had receipts of between $10 
million and $24,999,999. Consequently, we estimate that the majority of 
the firms in this category are small entities that may be affected by 
our action.

K. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    82. This R&O may contain new information collection requirements 
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13. If the Commission determines that the R&O contains collection 
subject to the PRA, it will be submitted to the Office of Management 
and Budget (OMB) for review under section 3507(d) of the PRA at an 
appropriate time. At that time, OMB, the general public, and other 
Federal agencies will be invited to comment on the new or modified 
information collection requirements contained in this proceeding. In 
addition, we note that pursuant to the Small Business Paperwork Relief 
Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we 
previously sought specific comment on how the Commission might 
``further reduce the information collection burden for small business 
concerns with fewer than 25 employees.

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

    83. The RFA requires an agency to describe any significant 
alternatives that it has considered in developing 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 and 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.''
    84. As noted in paragraph 2 above, this CMAS Third R&O deals only 
with the WARN Act section 602(b) requirement that the Commission adopt 
rules necessary to allow any CMS licensee to transmit emergency alerts 
to

[[Page 54525]]

its subscribers; to require that CMS providers that elect, in whole or 
in part, not to transmit emergency alerts, provide clear and 
conspicuous notice at the point of sale of any CMS devices that it will 
not transmit such alerts via that device; and to require CMS providers 
that elect not to transmit emergency alerts, to notify their existing 
subscribers of their election. The entities affected by this order were 
largely the members of the CMSAAC. In its formation of the CMSAAC, the 
Commission made sure to include representatives of small businesses 
among the advisory committee members. Also, as we indicate by our 
treatment of the comments of Interstate Wireless in paragraph 4 above, 
the requirements and standards on which the Commission sought comment 
already contain concerns raised by small businesses. The WARN ACT NPRM 
also sought comment on a number of alternatives to the recommendations 
of the CMSAAC, such as the Digital EAS and FM sub-carrier based alerts. 
In its consideration of these and other alternatives the CMSAAC 
recommendations, the Commission has attempted to impose minimal 
regulation on small entities to the extent consistent with our goal of 
advancing our public safety mission by adopting requirements and 
standards for a CMAS that CMS providers would elect to provide alerts 
and warnings to their customers. The affected CMS providers have 
overwhelmingly expressed their willingness to cooperate in the 
formation of the CMAS, and we anticipate that the standards and 
requirements that we adopt in this order will encourage CMS providers 
to work with other industry and government entities to complete and 
participate in the CMAS.

List of Subjects in 47 CFR Part 10

    Alert and warning, AMBER alert, Commercial mobile service provider.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 10 as follows:

PART 10--COMMERCIAL MOBILE ALERT SYSTEM

0
1. The authority citation for part 10 continues to read as follows:

    Authority: 47 U.S.C. 151, 154(i) and (o), 201, 303(r), 403, and 
606, as well as by sections 602(a), (b), (c), (f), 603, 604 and 606 
of the WARN Act.

Subpart A--General Information

0
2. Section 10.10 is amended by adding paragraphs (g) through (j) to 
read as follows:


Sec.  10.10  Definitions.

* * * * *
    (g) ``C'' Interface. The interface between the Alert Gateway and 
CMS provider Gateway.
    (h) CMS provider Gateway. The mechanism(s) that supports the ``C'' 
interface and associated protocols between the Alert Gateway and the 
CMS provider Gateway, and which performs the various functions 
associated with the authentication, management and dissemination of 
CMAS Alert Messages received from the Alert Gateway.
    (i) CMS provider infrastructure. The mechanism(s) that distribute 
received CMAS Alert Messages throughout the CMS provider's network, 
including cell site/paging transceivers and perform functions 
associated with authentication of interactions with the Mobile Device.
    (j) Mobile Devices. The subscriber equipment generally offered by 
CMS providers that supports the distribution of CMAS Alert Messages.

0
3. Section 10.11 is revised to read as follows:


Sec.  10.11  CMAS Implementation Timeline.

    Notwithstanding anything in this part to the contrary, a 
participating CMS provider shall begin an 18 month period of 
development, testing and deployment of the CMAS in a manner consistent 
with the rules in this part no later than 10 months from the date that 
the Federal Alert Aggregator and Alert Gateway makes the Government 
Interface Design specifications available.

0
4. Add a new Subpart B to read as follows:
Subpart B--Election to Participate in Commercial Mobile Alert System
Sec.
10.210 CMAS Participation Election Procedures.
10.220 Withdrawal of Election to Participate in CMAS.
10.230 New CMS Providers Participation in CMAS.
10.240 Notification to New Subscribers of Non-Participation in CMAS.
10.250 Notification to Existing Subscribers of Non-Participation in 
CMAS.
10.260 Timing of Subscriber Notification.
10.270 Subscribers' Right To Terminate Subscription.
10.280 Subscribers' Right To Opt Out of CMAS Notifications.

Subpart B--Election to Participate in Commercial Mobile Alert 
System


Sec.  10.210  CMAS Participation Election Procedures.

    (a) A CMS provider that elects to transmit CMAS Alert Messages, in 
part or in whole, shall electronically file with the Commission a 
letter attesting that the Provider:
    (1) Agrees to transmit such alerts in a manner consistent with the 
technical standards, protocols, procedures, and other technical 
requirements implemented by the Commission; and
    (2) Commits to support the development and deployment of technology 
for the ``C'' interface, the CMS provider Gateway, the CMS provider 
infrastructure, and mobile devices with CMAS functionality and support 
of the CMS provider selected technology.
    (b) A CMS provider that elects not to transmit CMAS Alert Messages 
shall file electronically with the Commission a letter attesting to 
that fact.
    (c) CMS providers shall file their election electronically to the 
docket.


Sec.  10.220  Withdrawal of Election to Participate in CMAS.

    A CMS provider that elects to transmit CMAS Alert Messages, in part 
or in whole, may withdraw its election without regulatory penalty or 
forfeiture if it notifies all affected subscribers as well as the 
Federal Communications Commission at least sixty (60) days prior to the 
withdrawal of its election. In the event that a carrier withdraws from 
its election to transmit CMAS Alert Messages, the carrier must notify 
each affected subscriber individually in clear and conspicuous language 
citing the statute. Such notice must promptly inform the customer that 
he or she no longer could expect to receive alerts and of his or her 
right to terminate service as a result, without penalty or early 
termination fee. Such notice must facilitate the ability of a customer 
to automatically respond and immediately discontinue service.


Sec.  10.230  New CMS Providers Participation in CMAS.

    CMS providers who initiate service at a date after the election 
procedure provided for in Sec.  10.210(d) and who elect to provide CMAS 
Alert Messages, in part or in whole, shall file electronically their 
election to transmit in the manner and with the attestations described 
in Sec.  10.210(a).


Sec.  10.240  Notification to New Subscribers of Non-Participation in 
CMAS.

    (a) A CMS provider that elects not to transmit CMAS Alert Messages, 
in part

[[Page 54526]]

or in whole, shall provide clear and conspicuous notice, which takes 
into account the needs of persons with disabilities, to new subscribers 
of its non-election or partial election to provide Alert messages at 
the point-of-sale.
    (b) The point-of-sale includes stores, kiosks, third party reseller 
locations, web sites (proprietary or third party), and any other venue 
through which the CMS provider's devices and services are marketed or 
sold.
    (c) CMS providers electing to transmit alerts ``in part'' shall use 
the following notification:

    NOTICE REGARDING TRANSMISSION OF WIRELESS EMERGENCY ALERTS 
(Commercial Mobile Alert Service)
    [[CMS provider]] has chosen to offer wireless emergency alerts 
within portions of its service area, as defined by the terms and 
conditions of its service agreement, on wireless emergency alert 
capable devices. There is no additional charge for these wireless 
emergency alerts.
    Wireless emergency alerts may not be available on all devices or 
in the entire service area, or if a subscriber is outside of the 
[[CMS provider]] service area. For details on the availability of 
this service and wireless emergency alert capable devices, please 
ask a sales representative, or go to [[CMS provider's URL]].
    Notice required by FCC Rule 47 CFR 10.240 (Commercial Mobile 
Alert Service).

    (d) CMS providers electing in whole not to transmit alerts shall 
use the following notification language:

    NOTICE TO NEW AND EXISTING SUBSCRIBERS REGARDING TRANSMISSION OF 
WIRELESS EMERGENCY ALERTS (Commercial Mobile Alert Service)
    [[CMS provider]] presently does not transmit wireless emergency 
alerts. Notice required by FCC Rule 47 CFR 10.240 (Commercial Mobile 
Alert Service).


Sec.  10.250  Notification to Existing Subscribers of Non-Participation 
in CMAS.

    (a) A CMS provider that elects not to transmit CMAS Alert Messages, 
in part or in whole, shall provide clear and conspicuous notice, which 
takes into account the needs of persons with disabilities, to existing 
subscribers of its non-election or partial election to provide Alert 
messages by means of an announcement amending the existing subscriber's 
service agreement.
    (b) For purposes of this section, a CMS provider that elects not to 
transmit CMAS Alert Messages, in part or in whole, shall use the 
notification language set forth in Sec.  10.240 (c) or (d) 
respectively, except that the last line of the notice shall reference 
FCC Rule 47 CFR 10.250, rather than FCC Rule 47 CFR 10.240.
    (c) In the case of prepaid customers, if a mailing address is 
available, the CMS provider shall provide the required notification via 
U.S. mail. If no mailing address is available, the CMS provider shall 
use any reasonable method at its disposal to alert the customer to a 
change in the terms and conditions of service and directing the 
subscriber to voice-based notification or to a Web site providing the 
required notification.


Sec.  10.260  Timing of Subscriber Notification.

    A CMS provider that elects not to transmit CMAS Alert Messages, in 
part or in whole, must comply with Sec. Sec.  10.240 and 10.250 no 
later than 60 days following an announcement by the Commission that the 
Alert Aggregator/Gateway system is operational and capable of 
delivering emergency alerts to participating CMS providers.


Sec.  10.270  Subscribers' Right To Terminate Subscription.

    If a CMS provider that has elected to provide CMAS Alert Messages 
in whole or in part thereafter chooses to cease providing such alerts, 
either in whole or in part, its subscribers may terminate their 
subscription without penalty or early termination fee.


Sec.  10.280  Subscribers' Right To Opt Out of CMAS Notifications.

    (a) CMS providers may provide their subscribers with the option to 
opt out of both, or either, the ``Child Abduction Emergency/AMBER 
Alert'' and ``Imminent Threat Alert'' classes of Alert Messages.
    (b) CMS providers shall provide their subscribers with a clear 
indication of what each option means, and provide examples of the types 
of messages the customer may not receive as a result of opting out.

[FR Doc. E8-21946 Filed 9-19-08; 8:45 am]
BILLING CODE 6712-01-P


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