80 FR 25663 - Further Proposed Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012
DEPARTMENT OF COMMERCE
National Telecommunications and Information Administration
First Responder Network Authority Federal Register Volume 80, Issue 86 (May 5, 2015)
National Telecommunications and Information Administration
First Responder Network Authority
Federal Register Volume 80, Issue 86 (May 5, 2015)
| Page Range | 25663-25668 | |
| FR Document | 2015-10140 |
[Federal Register Volume 80, Number 86 (Tuesday, May 5, 2015)] [Notices] [Pages 25663-25668] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-10140] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Telecommunications and Information Administration First Responder Network Authority [Docket Number: 140821696-5400-03] RIN 0660-XC012 Further Proposed Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012 AGENCY: First Responder Network Authority, National Telecommunications and Information Administration, U.S. Department of Commerce. ACTION: Notice and request for comments. ----------------------------------------------------------------------- SUMMARY: The First Responder Network Authority (``FirstNet'') publishes this Third Notice to request public comment on certain proposed interpretations of its enabling legislation that will inform, among other things, consultation, forthcoming requests for proposals, interpretive rules, and network policies. This Third Notice responds to comments and further clarifies proposed interpretations related to the definition and scope of the term ``public safety entity'' as used in FirstNet's enabling legislation and as discussed in a previous FirstNet Notice published on September 24, 2014. With the benefit of the comments received from this Third Notice, FirstNet may proceed to implement these or other interpretations with or without further administrative procedure. DATES: Submit comments on or before June 4, 2015. ADDRESSES: The public is invited to submit written comments to this Third Notice. Written comments may be submitted electronically through www.regulations.gov or by mail (to the address listed below). Comments received related to this Notice will be made a part of the public record and will be posted to www.regulations.gov without change. Comments should be machine readable and should not be copy-protected. Comments should include the name of the person or organization filing the comment as well as a page number on each page of the submission. All personally identifiable information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. FOR FURTHER INFORMATION CONTACT: Eli Veenendaal, First Responder Network Authority, National Telecommunications and Information Administration, U.S. Department of Commerce, 12201 Sunrise Valley Drive, M/S 243, Reston, VA 20192; 703-648-4167; or [email protected]. SUPPLEMENTARY INFORMATION: I. Introduction and Background The Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96, Title VI, 126 Stat. 256 (codified at 47 U.S.C. 1401 et seq.)) (the ``Act'') established the First Responder Network Authority (``FirstNet'') as an independent authority within the National Telecommunications and Information Administration (``NTIA''). The Act establishes FirstNet's duty and responsibility to take all actions necessary to ensure the building, deployment, and operation of a nationwide public safety broadband network (``NPSBN'').\1\ --------------------------------------------------------------------------- \1\ 47 U.S.C. 1426(b). --------------------------------------------------------------------------- As detailed in our Notice entitled ``Proposed Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012'' (79 FR 57058, September 24, 2014) (herein ``the First Notice''),\2\ we preliminary concluded that key issues relating to the responsibilities and opportunities of FirstNet, other federal agencies, States and territories, and state, federal local, and tribal public safety entities, among other stakeholders, turn on interpretation of the Act's terms and provisions. --------------------------------------------------------------------------- \2\ All responses to the First Notice are publically available at www.regulations.gov. --------------------------------------------------------------------------- More specifically, we analyzed the complex definition of the term ``public safety entity'' under the Act.\3\ The primary ramification of falling within this definition is that a public safety entity is served by FirstNet directly, rather than as a commercial customer of a secondary user of FirstNet's spectrum. In particular, under our preliminary interpretations of network elements in the First Notice, public safety entities would be served by the FirstNet core network, through either a FirstNet radio access network (``RAN'') or the RAN of a State that has chosen to assume responsibility for RAN buildout and operation.\4\ --------------------------------------------------------------------------- \3\ 79 FR 57060 (September 24, 2014). \4\ 79 FR 57059. --------------------------------------------------------------------------- Generally speaking, the Act defines public safety entities by the types of services they provide (i.e., whether they provide public safety services).\5\ Those public safety services are further defined by, among other things, the nature of the services (such as the protection of life, health or property), but also the types of specific entities providing the services (such as emergency response providers).\6\ The end result is a complex, multi-layered definition of public safety entity. --------------------------------------------------------------------------- \5\ See 47 U.S.C. 1401(26). \6\ See id. Sec. 1401(27). --------------------------------------------------------------------------- Our analysis in the First Notice included the virtually self- evident preliminary conclusion that the definition of public safety entity includes traditional first responders--police, fire, and EMS.\7\ No commenter disagreed with this preliminary conclusion. The Act's definition of public safety entity, however, is expressly not limited to such traditional first responders. Thus, in the First Notice, we also analyzed the definition with regard to which entities beyond traditional first responders would qualify as public safety entities.\8\ --------------------------------------------------------------------------- \7\ 79 FR 57061 (September 24, 2014). \8\ 79 FR at 57060-2. --------------------------------------------------------------------------- The Act's public safety entity definition raises three primary interpretive questions regarding non-traditional first responders: 1. Whether an ``entity'' should be defined as a group or authority of a certain minimum size or nature (such as an entire government agency or department) or can an ``entity'' include a sub-group or an individual; 2. Whether and to what extent an ``entity'' that provides public safety services some, but not all the time, can qualify as a public safety entity; and 3. Whether and to what extent an ``entity'' that provides services close or related to, but not identical to [[Page 25664]] traditional public safety services can qualify as a public safety entity. These questions are not entirely severable from each other given the structure of the public safety entity definition in the Act. In general, our preliminary interpretations in the First Notice permitted a wide variety of entities to qualify as public safety entities.\9\ Although our interpretations were met with strong support by the majority of respondents,\10\ some comments reflected a concern that we had expanded beyond the appropriate interpretation of the Act to include entities--such as utilities--that should not be given direct access to the network as public safety entities.\11\ While we continue to preliminarily conclude that the Act grants FirstNet discretion to consider a broad range of users consistent with FirstNet's mission, given the complexity of the Act's public safety entity definition and its importance to the functioning of the network and FirstNet's financial sustainability under the Act, we, in this Third Notice, propose a refined preliminary interpretation and seek additional comments regarding the definition.\12\ --------------------------------------------------------------------------- \9\ See 79 FR at 57060-2. \10\ We note FirstNet's preliminary interpretation that it has statutory discretion to consider a broad range of users including those that offer public safety services that satisfy the Communication Act or Homeland Security Act was strongly supported in responses to the First Notice. See e.g., National Public Safety Telecommunications Council (``NPSTC'') Comments at 6 available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0026; see also e.g., National Association of State Chief Information Officers (``NASCIO'') Comments at 1 available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0066; see also e.g., Comments of the State of Florida at 5 available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0013; see also e.g., Comments of the State of California at 2 available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0037. \11\ See AT&T Service, Inc. (``AT&T''), Comments, at 20, available at http://www.regulations.gov/#!documentDetail;D=NTIA- 2014-0001-0034; See also Association of Public Safety Communications Officials International (``APCO'') Comments, at 4-6 available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0029. \12\ We also note the definition of public safety entity is a critical component of both (1) the acquisition planning process as it provides key inputs into understanding the resources that will be derived from and available to qualifying public safety entities and (2) the successful implementation of our mission that, among other things, will require the promotion and adoption of the NPSBN by public safety entities. --------------------------------------------------------------------------- II. Statutory Definition of Public Safety Entity A ``public safety entity'' is defined in section 6001(26) of the Act as an ``entity that provides public safety services.'' \13\ Further, under the Act, the term ``public safety services'': --------------------------------------------------------------------------- \13\ 47 U.S.C. 1401(26). (A) Has the meaning given the term in section 337(f) [of the Communications Act of 1934 \14\ (``Communications Act'')]; and (B) includes services provided by emergency response providers, as that term is defined in [section 2 of the Homeland Security Act of 2002 \15\ (``HSA'')].\16\ --------------------------------------------------------------------------- \14\ Id. Sec. 337(f). \15\ 6 U.S.C. 101(6). \16\ 47 U.S.C. 1401(27) (emphasis added). --------------------------------------------------------------------------- Section 337(f) of the Communications Act defines ``public safety services'' to mean services: (A) The sole or principal purpose of which is to protect the safety of life, health or property; (B) that are provided by (i) State or local government entities, or (ii) by non-governmental organizations that are authorized by a governmental entity whose primary mission is the provision of such services; and (C) that are not made commercially available to the public by the provider.\17\ --------------------------------------------------------------------------- \17\ Id.Sec. 337(f)(1). Under the HSA, ``emergency response providers'' include ``Federal, State, and local governmental and nongovernmental emergency public safety, fire, law enforcement, emergency response, emergency medical (including hospital emergency facilities), and related personnel, agencies, and authorities.'' \18\ --------------------------------------------------------------------------- \18\ 6 U.S.C. 101(6). --------------------------------------------------------------------------- III. Legal Scope Versus Discretion in Implementing the Definition of Public Safety Entity In the First Notice, we noted that, if we determine it is reasonable and appropriate to do so in support of our mission, we may as a policy matter decide to narrow the scope of users we actually serve relative to those we can legally serve under the definition of public safety entity.\19\ Some commenters were troubled by this concept, indicating concern that FirstNet might elevate policy goals above the text and purpose of the Act and that FirstNet must implement the Act as written.\20\ --------------------------------------------------------------------------- \19\ 79 FR 57060 (September 24, 2014). \20\ See AT&T Comments, at 12, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0034. --------------------------------------------------------------------------- We believe, however, that FirstNet's discretion as to which entities to allow onto the network is contemplated by and important under the framework of the Act. For example, given the finite nature of spectrum resources, the exercise of such discretion is necessary to ensure the proper functioning of the network, in addition to FirstNet's economic self-sustainability for the benefit of public safety. Moreover, such discretion is necessary to give meaning to, among other things, FirstNet's obligation to consult with regional, State, tribal, and local jurisdictions regarding the ``assignment of priority and selection of entities seeking access to or use of the [network].'' \21\ If FirstNet did not possess this discretion, the stated consultation would be meaningless as FirstNet would simply be required to provide access to and use of the network to any entity that met the public safety entity definition regardless of the views of the consulted-with parties.\22\ --------------------------------------------------------------------------- \21\ 47 U.S.C. 1426(c)(2)(A)(vi) (emphasis added). \22\ We note that, as is discussed infra, the Communications Act prong of the public safety entity definition does provide for governmental entities to designate nongovernmental entities as public safety entities under certain criteria. The consultation obligation of 47 U.S.C. 1426(c)(2)(A)(vi) is not, however, limited to consultations on the selection of ``nongovernmental'' entities, but rather entities in general. Thus, we believe the consultation obligation must apply to all entities and that FirstNet must therefore have discretion with regard to all such entities. --------------------------------------------------------------------------- Similarly, given the Act's express consultation obligations with respect to FirstNet's assignment of priority to entities using the network--which could effectively give FirstNet the ability to deprioritize entities even if they qualified under the definition--it would appear to make little sense for Congress to have intended a purely mechanical application of the public safety entity definition.\23\ Nor does the wording of the Act appear to suggest that FirstNet's consultation obligations are solely with respect to its legal interpretation of the term public safety entity. For example, FirstNet is required to establish wide-ranging network policies, including regarding the ``practices and procedures of the entities operating on and the personnel using'' the network.\24\ --------------------------------------------------------------------------- \23\ See 47 U.S.C. 1426(b)(1); see also id. Sec. 1426(c)(2) (describing FirstNet's consultation requirements under the Act). \24\ Id. Sec. 1426(c)(1)(E)(ii). --------------------------------------------------------------------------- Finally, although we preliminarily conclude that FirstNet may have discretion within the bounds of the public safety entity definition, we did not mean to imply in the First Notice any intent or legal authority to expand beyond the definition of public safety entity. We merely stated that FirstNet may ``decide to narrow the scope of users it actually serves relative to those [[Page 25665]] it can legally serve.'' \25\ We seek comments on the above interpretations. --------------------------------------------------------------------------- \25\ 79 FR 57060 (September 24, 2014) (emphasis added). --------------------------------------------------------------------------- IV. Public Safety Entity Definition Overview The public safety entity definition is dependent on the definition of public safety services, which is in turn dependent on two separate definitions from statutes outside the Act. Before trying to draw precise boundaries around any of these terms it is helpful to look at the overall definitional structure, particularly how the two extra-Act definitions interact within the definition of public safety services. The term ``public safety services'': (A) Has the meaning given the term in section 337(f); and (B) includes services provided by emergency response providers, as that term is defined in the HSA.\26\ \26\ 47 U.S.C. 1401(27) (emphasis added). --------------------------------------------------------------------------- In the First Notice, we ultimately interpreted the language of the Act as creating an either-or test. That is, the two prongs (``(A)'' and ``(B)'' above) of the definition create a combined list of services, and a service that appears on list ``(B)'' is a ``public safety service'' independent of those on list ``(A)''.\27\ We continue to believe that the ``and (B) includes'' language in the Act necessitates this result. Regardless of whether the word between the two prongs is ``and'' or ``or,'' the preamble combined with the second prong reads: ``The term `public safety services' . . . includes services provided by emergency response providers. . . .'' --------------------------------------------------------------------------- \27\ 79 FR 57060 (September 24, 2014). --------------------------------------------------------------------------- Some commenters objected to this formulation, essentially arguing that the addition of the second prong ``(B)'' was merely to clarify the scope of prong ``(A)'' and did not expand it.\28\ Other commenters thought that, although prong ``(B)'' did expand ``(A)'', those services included in prong ``(B)'' were of a lesser, more supplementary nature than those in ``(A)'' as a result of the ``has the meaning'' language in ``(A)'' in contrast to the ``includes'' language in ``(B)''.\29\ --------------------------------------------------------------------------- \28\ See AT&T Comments, at 16-7, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0034. \29\ See APCO Comments, at 6, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0029. --------------------------------------------------------------------------- We continue to preliminarily conclude, however, that the more natural reading of the definition is as we concluded in the First Notice. Among other reasons, there are services expressly included in the second prong of the definition that are not included in the first. The HSA definition of public safety services (prong ``(B)'') includes ``Federal . . . personnel, agencies, and authorities.'' \30\ The section 337(f) definition of public safety services (prong ``(A)'') includes only ``State or local'' governmental entities.\31\ Thus, the HSA definition adds an element--Federal personnel, agencies, and authorities--that is not contained within the section 337(f) definition. --------------------------------------------------------------------------- \30\ 6 U.S.C. 101(6). \31\ 47 U.S.C. 337(f)(1). --------------------------------------------------------------------------- There are other similar additions to the section 337(f) definition provided by the HSA prong, such as ``nongovernmental'' entities that do not require separate authorization and hospital emergency facilities, which would not satisfy the section 337(f) requirement that public safety services ``are not made commercially available to the public by the provider.'' \32\ In addition, the ``sole and principle purpose'' requirement of section 337(f), as discussed below, is not included in the HSA prong. Accordingly, if Congress were merely clarifying the definition in the section 337(f) prong, it would not have included an HSA prong that clearly expanded the definition beyond the boundary of the section 337(f) prong. --------------------------------------------------------------------------- \32\ See 6 U.S.C. 101(6); 47 U.S.C. 337(f)(1). --------------------------------------------------------------------------- With regard to supplementing the section 337(f) definition, Congress did not qualitatively characterize services in the second prong other than to say that the definition ``includes'' services in that prong, and thus we cannot find justification for treating them differently or as lesser-included services.\33\ That Congress used the phrase ``has the meaning'' with regard to section 337(f) and not with the HSA prong does not sufficiently justify or guide us to such disparate treatment of the services under the HSA prong. --------------------------------------------------------------------------- \33\ 47 U.S.C. 1401(27). --------------------------------------------------------------------------- As a result, we preliminarily conclude that the two prongs form a combined list, as discussed above, and seek further comments on this preliminary conclusion. V. Requirement To Provide Public Safety Services A public safety entity is defined in section 6001(26) of the Act as an ``entity that provides public safety services.'' \34\ In the First Notice, we preliminarily concluded that the Act does not include any express language requiring a minimum amount or frequency of providing such services, but merely requires that an entity provide such services.\35\ --------------------------------------------------------------------------- \34\ Id. Sec. 1401(26). \35\ See 79 FR 57060 (September 24, 2014). --------------------------------------------------------------------------- An example of where Congress required such a minimum amount of services is contained in the Communications Act prong of the definition of public safety services, where Congress used the phraseology ``a governmental entity whose primary mission is the provision of such services.'' \36\ If Congress had used this phraseology in the Act--for example, ``public safety entity means an entity whose primary mission is the provision of public safety services''--it would have been clear that the provision of a minimum amount of such services were necessary for an entity to qualify.\37\ --------------------------------------------------------------------------- \36\ 47 U.S.C. 337(f)(1). \37\ It is generally implicit that if an organization's primary mission is the provision of such services then the organization likely provides a great amount of such services. --------------------------------------------------------------------------- This contrast is actually evident entirely within the Communications Act definition of public safety services itself. In describing the entities under section 337(f) of the Communications Act that must be providing a service for it to constitute a public safety service, Congress uses the phrase ``that are provided by . . . State or local government entities.'' In describing the entities that are permitted to authorize a nongovernmental entity to provide such services, however, Congress used the phrase ``a governmental entity whose primary mission is the provision of such services.'' \38\ Thus, Congress used the ``primary mission'' limitation to impose a higher standard to qualify those entities allowed to authorize nongovernmental entities, but imposed no such standard on the governmental entities that could provide public safety services.\39\ No such higher standard was used in the Act with regard to public safety entities. --------------------------------------------------------------------------- \38\ 47 U.S.C. 337(f)(1) (emphasis added). \39\ One commenter appears to mistakenly cite the ``primary mission'' limitation as applying to the nongovernmental organizations, rather than the governmental entities that are permitted to authorize nongovernmental organizations as described in 47 U.S.C. 337(f)(1). See AT&T Comments, at 16, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0034. --------------------------------------------------------------------------- Some commenters, however, advocated that the public safety entity definition should be read more holistically under the Act, rather than treating each portion of the definition--such as each services prong-- as a separate interpretation that flowed up to the next stage.\40\ These comments reflect [[Page 25666]] the difficulty in interpreting the public safety entity definition where the entity in question may not provide public safety services all the time or through all its personnel. --------------------------------------------------------------------------- \40\ We note that this does not have to be the case. For example, one entity could provide a service part time that another provides full time. In other words, even if section 337(f) of the Communications Act imposed a primary mission requirement on the entity providing a service (which it does not), it is merely defining a service, and some other entity may only provide such a service part time. --------------------------------------------------------------------------- For example, in the context of the Communications Act definition of public safety services, we noted in the First Notice that the FCC interpreted the provision to qualify services provided by governmental entities, such as city planning or transportation departments, so long as the services being provided had as their sole or principal purpose the protection of life, safety, or property.\41\ That is, under the FCC's interpretation of section 337(f), with which we agree, an entity that does not always or even most of the time provide services whose sole or principal purpose is the protection of life, safety, or property, may nevertheless provide qualifying ``public safety services'' when such an entity provides services that meet the sole or principal purpose test.\42\ However, unlike the context of the Communications Act definition of public safety services--where services can vary day-to-day or employee-to-employee--FirstNet is faced with the question under the Act as to whether an entity ever qualifies as a public safety entity by virtue of providing a public safety service in only some instances. Further, FirstNet must then address the question of whether such entity should always have primary access to or use of the FirstNet network as a result. This question applies regardless of whether the entity in question is an organization or an individual. --------------------------------------------------------------------------- \41\ See Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, Fourth Report and Order, 26 FCC Rcd. 10799 (F.C.C. July 21, 2011) (Fourth Report and Order). \42\ 79 FR 57061 (September 24, 2014) (stating ``FirstNet gives deference to the conclusions reached by the Commission in its interpretation of section 337(f)(1) and as independent entity owes no such deference) (emphasis added). In response to this preliminary interpretation, one commenter stated that ``FirstNet's reliance on an FCC Order interpreting section 337 is misplaced, and FirstNet certainly need not afford the FCC `deference' in its interpretation. As an `independent authority,' FirstNet owes no such deference.'' See APCO Comments, at 5, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0029. However, as an independent authority, we simply agree with FCC interpretation. The FCC interpretation predated the Act and thus Congress is assumed to have been aware of the interpretation and could have limited the Act accordingly if it did not agree with the FCC interpretation. --------------------------------------------------------------------------- In the context of an organization, FirstNet must also determine whether the organization qualifies as a public safety entity as a whole where in some or all instances the provision of public safety services is by only some employees or members of the organization. In other words, FirstNet must determine whether public safety entity status should apply to all employees or members of an organization if only some such employees or members provide public safety services. In the First Notice, we preliminarily concluded that as long as an entity provided a non-de minimis amount of public safety services, even if it provides other services, it will qualify as a public safety entity under the Act.\43\ We also preliminarily concluded that this interpretation resulted in the entity as a whole qualifying as a public safety entity even if only some employees of the entity provided such services.\44\ After review of the responses to the First Notice, we clarify below our preliminary interpretation of the Act in this regard, and seek further comments. --------------------------------------------------------------------------- \43\ 79 FR 57060 (September 24, 2014). \44\ 79 FR at 57062. --------------------------------------------------------------------------- 1. Whether an Individual or Subgroup of an Organization Ever Qualifies as a Public Safety Entity As an initial matter, we restate our preliminary conclusion from the First Notice here, for the reasons stated therein and below, that individuals such as volunteer firemen or employees of an organization (in addition to or rather than an organization as a whole) may qualify as public safety entities if they provide or are reasonably likely to provide public safety services. This preliminary interpretation applies whether the individual performs services that qualify under the section 337(f) or the HSA prong of the definition of public safety services. Under the HSA prong of the definition, ``personnel'' (as contrasted with ``agencies . . . and authorities'') are expressly included as service providers, and thus we believe it is reasonable to conclude that an ``entity'' under the Act performing such services should be interpreted to include individual ``personnel.'' \45\ Although an organization could theoretically perform the same services as individual personnel, we believe it is reasonable under the structure and purposes of the Act to include individual personnel such as volunteer firefighters within the term ``entity.'' This interpretation is also supported by the Act's inclusion, via the HSA prong, of ``hospital emergency facilities'' but not hospitals in their entirety as emergency response providers. Congress contemplated that a group of employees smaller than a larger organization can provide public safety services, and thus in the context of the Act constitute public safety entities. --------------------------------------------------------------------------- \45\ 6 U.S.C. 101(13) (stating the term means officers and employees). --------------------------------------------------------------------------- The section 337(f) prong of the public safety services definition speaks only in terms of ``State or local government entities'' or ``non-governmental organizations.'' This raises the question as to whether an individual or group smaller than the whole ``entity'' or ``organization'' can provide qualifying services and thus constitute public safety entities under the Act via the section 337(f) prong. In section 337(f), however, Congress included services provided by entities or organizations whose mission was not ``primar[ily]'' the provision of services the sole or principle purposes of which is the protection of life, health, or property. That is, these entities or organizations by definition may sometimes have other primary missions, but occasionally as a whole or through only some employees provide qualifying services. As a result, we preliminarily conclude that under the section 337(f) prong a public safety entity under the Act can include at least a group of employees smaller than a larger organization.\46\ We seek comments on the above interpretations and their collective effect on the definition of public safety entity. --------------------------------------------------------------------------- \46\ See Fourth Report and Order (discussing parts of organizations using services under the section 337(f) prong). --------------------------------------------------------------------------- 2. Overall Framework for Determining Public Safety Entities As an overall framework for qualifying public safety entities, we first preliminarily conclude that where an organization as a whole is charged with providing, and does provide public safety services, the organization qualifies as a public safety entity and all members of the organization can (following consultation and within the discretion discussed in part III of this Third Notice) be given access to or use of the network under the Act. This preliminary conclusion is fairly clear under the Act and would apply to traditional first responder organizations, among others. Next, with respect to organizations that do not meet the above criteria, we preliminarily conclude that those members of such an organization that provide or are reasonably likely to provide public safety services for a non-de minimis amount of time, qualify as public safety entities under the Act and can (following consultation and within the discretion discussed in part III of [[Page 25667]] this Third Notice) be given access to or use of the network under the Act. For purposes of this interpretation, we preliminarily conclude that those members of such an organization that materially contribute to or help enable or support the provision of such public safety services--including, for example, dispatchers, technicians, and supervisors--by other members of the organization would also qualify as public safety entities. Interoperable communications with these enabling or support personnel could be critically important to the provision of public safety services by the primary providers in the organization, and thus we believe it is reasonable to include the enabling and support personnel within the definition. We note that our preliminary interpretations are by necessity made based on the specific language, context and purpose of the Act. We must therefore interpret the definition of public safety entity by reference to the aggregation of services defined both by the section 337 and HSA prongs of the public safety services definition under the Act, rather than just either prong on a stand-alone basis, as may be required by other agencies in different contexts. In this regard, our interpretation as set forth above would apply regardless of whether the services provided qualified as public safety services under the section 337(f) prong or the HSA prong of the definition in the Act. For example, under the section 337(f) prong, those field and operations personnel of a governmental or authorized nongovernmental entity that provide emergency services the sole or principal purpose of which is to protect the safety of life, health or property would qualify as public safety entities, along with any necessary dispatchers etc.\47\ Additionally, those same field and operations personnel would also qualify as a public safety entity under the HSA prong because the nature of services being provided in response to such an incident would typically be the type of services performed directly by an emergency response provider or, at minimum, related personnel supporting such a response provider. For example, utility personnel removing dangerous downed electrical wires to permit firefighters to access victims in a car would be deemed public safety entities. --------------------------------------------------------------------------- \47\ For a discussion of utilities as public safety entities under the Act, see part VI infra. --------------------------------------------------------------------------- Under this refined preliminary interpretation, however, where an organization as a whole, such as a private utility, is not charged with providing public safety services, the entire organization would not necessarily qualify as a public safety entity. The extent to which the individuals or subgroups within the organization providing public safety services would qualify, or whether such individuals or subgroups are always permitted on the network, would be determined within FirstNet policies based on, among other factors, the advantages to the public and public safety of having such individuals always supported by and accessible on the network, the impact on FirstNet's financial sustainability as required by the Act and our consultations under the Act with the FirstNet Public Safety Advisory Committee, local first responders, and local jurisdictions.\48\ --------------------------------------------------------------------------- \48\ Some commenters expressed concern that the spectrum and network capacity allocated to public safety under the Act could be diluted in some way because of the inclusion of non-traditional first responders. See e.g., FirstNet Colorado Response to the Proposed Interpretations of Parts of the Middle Class Tax Relief and Job Creation Act of 2012, at 9, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0062; State of Florida Comments, at 9, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0013. However, we believe the priority and preemption features of the network will ensure that traditional first responders will always have primary use of the network. --------------------------------------------------------------------------- We recognize that implementation of the above framework may require certifications or other evidence of eligibility of certain customers or groups within organizations. Customer eligibility requirements for specialized services, including communications services, exist and are managed today in the industry. Nevertheless, in addition to comments regarding the above refined preliminary interpretation itself, we seek comments on the appropriate mechanisms for implementing this interpretation assuming it is ultimately adopted. VI. Non-Traditional First Responders as Public Safety Entities In the First Notice, we preliminarily concluded that many types of non-traditional first responders could qualify as public safety entities because they provided public safety services.\49\ For example, we generally agreed with the examples of public safety services cited by the FCC in its interpretation of section 337(f) and thus the entities providing those services would, under our preliminary interpretation, qualify as public safety entities.\50\ These examples included a range of services, provided by governmental entities, ``the sole or principal purpose of which is to protect the safety of life, health or property,'' including: --------------------------------------------------------------------------- \49\ We recognize that separate priority and preemption parameters must be established even among the various entities, including traditional and non-traditional entities, which may qualify as a public safety entity under the Act and be allowed to use the NPSBN. We intend, as discussed in the First Notice, in the future and following appropriate consultations, to fully address the priority and preemptive use of and access to the NPSBN among the various user groups. \50\ 79 FR 57061 (2014). --------------------------------------------------------------------------- 1. Entities supporting airport operations when ``ensuring the routine safety of airline passengers, crews, and airport personnel and property in a complex air transportation environment.'' \51\ --------------------------------------------------------------------------- \51\ Fourth Order and Report at 10808. --------------------------------------------------------------------------- 2. Transportation departments in the design and maintenance of roadways, the installation and maintenance of traffic signals and signs, and other activities that affect the safety of motorists and passengers.\52\ --------------------------------------------------------------------------- \52\ Id. at 10808. --------------------------------------------------------------------------- 3. Entities protecting the safety of animals, homes, and city infrastructure, particularly in crisis situations.\53\ --------------------------------------------------------------------------- \53\ Id. at 10809. --------------------------------------------------------------------------- The FCC's interpretation of section 337(f) predated passage of the Act, and thus Congress is presumed to have knowledge of the interpretation and could have taken steps to modify the definition in the Act in light of the FCC's interpretation, but did not.\54\ In the First Notice, we sought comment on other entities providing services that would qualify as public safety services under the section 337(f) prong, and received examples such as: --------------------------------------------------------------------------- \54\ See Lorillard, Div. of Loew's Theatres, Inc. v. Pons, 434 U.S. 575, 580-581 (U.S. 1978) (explaining that ``Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change. So too, where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute''); see also Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8 (1975); NLRB v. Gullett Gin Co., 340 U.S. 361, 366 (1951); National Lead Co. v. United States, 252 U.S. 140, 147 (1920). 1. Public Transit Agencies and Departments 2. Public Work Departments 3. Public electric and water utilities 4. Health Departments 5. Parks and Recreation Departments \55\ --------------------------------------------------------------------------- \55\ See, e.g., Illinois Public Safety Broadband Working Group Comments, at 6-9, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0004; see also State of Idaho Comments, at 1-2, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0063; see also Vermont State Wireless Commission Comments, at 1, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0061. Because both the section 337(f) and HSA prong of the public safety services definition include non-governmental entities in addition to governmental [[Page 25668]] entities, we also sought comment on such non-governmental entities that --------------------------------------------------------------------------- would qualify and received similar examples such as: 1. Transportation Authorities 2. Electric and Water Utilities 3. Non[hyphen]governmental and private, and non[hyphen]profit and for[hyphen]profit organizations (e.g., health care institutions, ambulance companies, independent firefighting corporations) 4. Non[hyphen]government disaster relief and aid organizations (e.g., American Red Cross, Salvation Army) 5. Education Institutions \56\ --------------------------------------------------------------------------- \56\ See, e.g., State of Washington Interoperability Executive Committee Comments, at 1-2, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0055; see also State of Maine ConnectME Authority Comments, at 2, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0017; see also e.g, State of Oregon Comments, at 2-3, available at http://www.regulations.gov/#!documentDetail;D=NTIA-2014-0001-0065. In all cases, however, as discussed above, FirstNet is obligated to consult with regional, State, tribal, and local jurisdictions regarding the ``selection of entities seeking access to or use of the [network].'' \57\ Although the First Notice (and this Third Notice) contributes to such consultations, FirstNet intends to conduct additional, direct consultations with State points of contact (``SPOCs'') regarding the selection of entities permitted on the network. FirstNet can then exercise the discretion discussed in Part III of this Notice in light of such consultations within the outer legal boundaries FirstNet draws around the definition of public safety entity. --------------------------------------------------------------------------- \57\ 47 U.S.C. 1426(c)(2)(A)(vi). --------------------------------------------------------------------------- We preliminarily conclude, however, that subject to such consultation and in accordance with our above analyses in this Third Notice, the personnel or subgroups within a non-governmental organization qualify as public safety entities under the Act to the extent such personnel or subgroups provide public safety services as defined under either the section 337(f) prong or the HSA prong of the public safety services definition. This is merely stating the statutory framework under the Act with the addition of our conclusions above regarding whether personnel or subgroups can qualify as ``entities'' under the Act. Regarding the section 337(f) prong, personnel, or subgroups of non- governmental organizations, if authorized under the terms of that section, provide qualifying public safety services under the Act if they provide services ``the sole or principal purpose of which is to protect the safety of life, health or property'' and those services are not ``made commercially available to the public.'' We preliminarily conclude, for example, that private utility workers that remove a live electrical wire touching a car at an accident scene is performing a service the principal purpose of which is to protect the safety of life.\58\ We also preliminarily conclude that such a service is not one that is typically ``commercially available,'' albeit incident to or as a result of a commercially available service of providing electricity. In the context of the Act, then, these services would qualify as public safety services, and therefor the workers providing such services would qualify as public safety entities as defined in the Act.\59\ We seek comments on these preliminary conclusions. --------------------------------------------------------------------------- \58\ We note that most utilities are non-governmental entities. As such, we anticipate relying heavily on the authorization of personnel from such entities by ``primary mission'' first responders under the section 337(f) prong in determining which personnel should gain access to the network as public safety entities. \59\ We note that the FCC has not independently determined whether utilities provide ``public safety services'' under section 337(f) for purposes of eligibility for direct licensing of spectrum in the 700 MHz public safety band, including the portion of that spectrum designated for public safety narrowband use. FirstNet's interpretation of section 337(f) and its determination with regard to ``public safety entities'' eligible as end users of the network, including utilities, is based on the specific requirements of the Act in their totality and is not intended to modify any interpretation or suggest any future treatment of section 337(f) by the FCC. --------------------------------------------------------------------------- As mentioned, however, under the section 337(f) prong, such a private entity would have to be ``authorized by a governmental entity whose primary mission is the provision of such services'' to qualify as providing public safety services. We preliminarily conclude that in our State and local consultations under the Act regarding the ``entities seeking access to or use of the [network],'' traditional governmental fire, police, and EMS entities, as examples, may authorize non- governmental entity personnel and subgroups, and thus if such personnel or subgroups also meet the criteria described in part V. of this Third Notice, they would be public safety entities under the Act.\60\ We seek comments on this preliminary conclusion and the appropriate method and duration of such authorizations. --------------------------------------------------------------------------- \60\ See also First Report and Order and Third Notice of Proposed Rulemaking, 14 FCC Rcd. 152,187-188. --------------------------------------------------------------------------- Under the HSA prong, no such authorizations of non-governmental entities are necessary. Thus, if personnel or subgroups of non- governmental organizations qualify under the HSA prong as ``emergency response . . . personnel'' or personnel ``related'' to such emergency response personnel, they would also qualify as public safety entities under the Act. We thus preliminarily conclude, for example, that a private utility worker that removes a live electrical wire touching a car at an accident scene is performing a service typically provided by an emergency response provider, or, at a minimum, by related personnel supporting such a response provider. We also preliminarily conclude that, subject to further consultations mentioned above regarding entities seeking access to the network, non-governmental personnel involved in or supporting such emergency response activities, such as the utility worker described above removing an electrical wire, can legally qualify under the Act as public safety entities. We seek comments on these preliminary conclusions. VII. Ex Parte Communications Any non-public oral presentation to FirstNet regarding the substance of this Second Notice will be considered an ex parte presentation, and the substance of the meeting will be placed on the public record and become part of this docket. No later than two (2) business days after an oral presentation or meeting, an interested party must submit a memorandum with additional information as necessary, or to request that the party making the filing do so, if FirstNet believes that important information was omitted or characterized incorrectly. Any written presentation provided in support of the oral communication or meeting will also be placed on the public record and become part of this docket. Such ex parte communications must be submitted to this docket as provided in the ADDRESSES section above and clearly labeled as an ex parte presentation. Federal entities are not subject to these procedures. Dated: April 27, 2015. Jason Karp, Acting Chief Counsel, First Responder Network Authority. [FR Doc. 2015-10140 Filed 5-4-15; 8:45 am] BILLING CODE 3510-TL-P
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practical utility; (b) the accuracy of the DATES: Submit comments on or before More specifically, we analyzed the
agency’s estimate of the burden June 4, 2015. complex definition of the term ‘‘public
(including hours and cost) of the ADDRESSES: The public is invited to safety entity’’ under the Act.3 The
proposed collection of information; (c) submit written comments to this Third primary ramification of falling within
ways to enhance the quality, utility, and Notice. Written comments may be this definition is that a public safety
clarity of the information to be submitted electronically through entity is served by FirstNet directly,
collected; and (d) ways to minimize the www.regulations.gov or by mail (to the rather than as a commercial customer of
burden of the collection of information address listed below). Comments a secondary user of FirstNet’s spectrum.
on respondents, including through the received related to this Notice will be In particular, under our preliminary
use of automated collection techniques made a part of the public record and interpretations of network elements in
or other forms of information will be posted to www.regulations.gov the First Notice, public safety entities
technology. without change. Comments should be would be served by the FirstNet core
Comments submitted in response to machine readable and should not be network, through either a FirstNet radio
this notice will be summarized and/or copy-protected. Comments should access network (‘‘RAN’’) or the RAN of
included in the request for OMB include the name of the person or a State that has chosen to assume
approval of this information collection; organization filing the comment as well responsibility for RAN buildout and
they also will become a matter of public as a page number on each page of the operation.4
record. submission. All personally identifiable Generally speaking, the Act defines
Dated: April 30, 2015. information (e.g., name, address) public safety entities by the types of
Glenna Mickelson, voluntarily submitted by the commenter services they provide (i.e., whether they
may be publicly accessible. Do not provide public safety services).5 Those
Management Analyst, Office of the Chief
Information Officer. submit confidential business public safety services are further
information or otherwise sensitive or defined by, among other things, the
[FR Doc. 2015–10468 Filed 5–4–15; 8:45 am]
protected information. nature of the services (such as the
BILLING CODE 3510–07–P
protection of life, health or property),
FOR FURTHER INFORMATION CONTACT: Eli
but also the types of specific entities
Veenendaal, First Responder Network
DEPARTMENT OF COMMERCE providing the services (such as
Authority, National
emergency response providers).6 The
Telecommunications and Information
National Telecommunications and Administration, U.S. Department of end result is a complex, multi-layered
Information Administration Commerce, 12201 Sunrise Valley Drive, definition of public safety entity.
Our analysis in the First Notice
M/S 243, Reston, VA 20192; 703–648–
First Responder Network Authority included the virtually self-evident
4167; or elijah.veenendaal@firstnet.gov.
preliminary conclusion that the
[Docket Number: 140821696–5400–03] SUPPLEMENTARY INFORMATION: definition of public safety entity
RIN 0660–XC012 I. Introduction and Background includes traditional first responders—
police, fire, and EMS.7 No commenter
Further Proposed Interpretations of The Middle Class Tax Relief and Job disagreed with this preliminary
Parts of the Middle Class Tax Relief Creation Act of 2012 (Pub. L. 112–96, conclusion. The Act’s definition of
and Job Creation Act of 2012 Title VI, 126 Stat. 256 (codified at 47 public safety entity, however, is
U.S.C. 1401 et seq.)) (the ‘‘Act’’) expressly not limited to such traditional
AGENCY: First Responder Network established the First Responder Network first responders. Thus, in the First
Authority, National Authority (‘‘FirstNet’’) as an Notice, we also analyzed the definition
Telecommunications and Information independent authority within the with regard to which entities beyond
Administration, U.S. Department of National Telecommunications and traditional first responders would
Commerce. Information Administration (‘‘NTIA’’). qualify as public safety entities.8
ACTION: Notice and request for The Act establishes FirstNet’s duty and The Act’s public safety entity
comments. responsibility to take all actions definition raises three primary
necessary to ensure the building, interpretive questions regarding non-
SUMMARY: The First Responder Network deployment, and operation of a
Authority (‘‘FirstNet’’) publishes this traditional first responders:
nationwide public safety broadband 1. Whether an ‘‘entity’’ should be
Third Notice to request public comment network (‘‘NPSBN’’).1
on certain proposed interpretations of defined as a group or authority of a
As detailed in our Notice entitled certain minimum size or nature (such as
its enabling legislation that will inform, ‘‘Proposed Interpretations of Parts of the
among other things, consultation, an entire government agency or
Middle Class Tax Relief and Job department) or can an ‘‘entity’’ include
forthcoming requests for proposals, Creation Act of 2012’’ (79 FR 57058,
interpretive rules, and network policies. a sub-group or an individual;
September 24, 2014) (herein ‘‘the First 2. Whether and to what extent an
This Third Notice responds to Notice’’),2 we preliminary concluded
comments and further clarifies proposed ‘‘entity’’ that provides public safety
that key issues relating to the services some, but not all the time, can
interpretations related to the definition responsibilities and opportunities of
and scope of the term ‘‘public safety qualify as a public safety entity; and
FirstNet, other federal agencies, States 3. Whether and to what extent an
entity’’ as used in FirstNet’s enabling
asabaliauskas on DSK5VPTVN1PROD with NOTICES
and territories, and state, federal local, ‘‘entity’’ that provides services close or
legislation and as discussed in a and tribal public safety entities, among
previous FirstNet Notice published on related to, but not identical to
other stakeholders, turn on
September 24, 2014. With the benefit of interpretation of the Act’s terms and 3 79 FR 57060 (September 24, 2014).
the comments received from this Third provisions. 4 79 FR 57059.
Notice, FirstNet may proceed to 5 See 47 U.S.C. 1401(26).
implement these or other interpretations 1 47U.S.C. 1426(b). 6 See id. § 1401(27).
with or without further administrative 2 Allresponses to the First Notice are publically 7 79 FR 57061 (September 24, 2014).
procedure. available at www.regulations.gov. 8 79 FR at 57060–2.
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traditional public safety services can that provides public safety services.’’ 13 to ensure the proper functioning of the
qualify as a public safety entity. Further, under the Act, the term ‘‘public network, in addition to FirstNet’s
These questions are not entirely safety services’’: economic self-sustainability for the
severable from each other given the (A) Has the meaning given the term in benefit of public safety. Moreover, such
structure of the public safety entity section 337(f) [of the Communications discretion is necessary to give meaning
definition in the Act. Act of 1934 14 (‘‘Communications to, among other things, FirstNet’s
In general, our preliminary Act’’)]; and (B) includes services obligation to consult with regional,
interpretations in the First Notice provided by emergency response State, tribal, and local jurisdictions
permitted a wide variety of entities to providers, as that term is defined in regarding the ‘‘assignment of priority
qualify as public safety entities.9 [section 2 of the Homeland Security Act and selection of entities seeking access
Although our interpretations were met of 2002 15 (‘‘HSA’’)].16 to or use of the [network].’’ 21 If FirstNet
with strong support by the majority of Section 337(f) of the Communications
did not possess this discretion, the
respondents,10 some comments Act defines ‘‘public safety services’’ to
mean services: stated consultation would be
reflected a concern that we had meaningless as FirstNet would simply
expanded beyond the appropriate (A) The sole or principal purpose of
which is to protect the safety of life, be required to provide access to and use
interpretation of the Act to include of the network to any entity that met the
entities—such as utilities—that should health or property;
(B) that are provided by (i) State or public safety entity definition regardless
not be given direct access to the network
local government entities, or (ii) by non- of the views of the consulted-with
as public safety entities.11 While we
governmental organizations that are parties.22
continue to preliminarily conclude that
authorized by a governmental entity Similarly, given the Act’s express
the Act grants FirstNet discretion to
whose primary mission is the provision consultation obligations with respect to
consider a broad range of users
of such services; and FirstNet’s assignment of priority to
consistent with FirstNet’s mission, (C) that are not made commercially
given the complexity of the Act’s public entities using the network—which
available to the public by the provider.17
safety entity definition and its could effectively give FirstNet the
Under the HSA, ‘‘emergency response ability to deprioritize entities even if
importance to the functioning of the
providers’’ include ‘‘Federal, State, and
network and FirstNet’s financial they qualified under the definition—it
local governmental and
sustainability under the Act, we, in this would appear to make little sense for
nongovernmental emergency public
Third Notice, propose a refined Congress to have intended a purely
safety, fire, law enforcement, emergency
preliminary interpretation and seek mechanical application of the public
response, emergency medical (including
additional comments regarding the safety entity definition.23 Nor does the
hospital emergency facilities), and
definition.12 wording of the Act appear to suggest
related personnel, agencies, and
II. Statutory Definition of Public Safety authorities.’’ 18 that FirstNet’s consultation obligations
Entity are solely with respect to its legal
III. Legal Scope Versus Discretion in interpretation of the term public safety
A ‘‘public safety entity’’ is defined in Implementing the Definition of Public entity. For example, FirstNet is required
section 6001(26) of the Act as an ‘‘entity Safety Entity to establish wide-ranging network
In the First Notice, we noted that, if policies, including regarding the
9 See 79 FR at 57060–2.
10 We
we determine it is reasonable and ‘‘practices and procedures of the entities
note FirstNet’s preliminary interpretation
that it has statutory discretion to consider a broad
appropriate to do so in support of our operating on and the personnel using’’
range of users including those that offer public mission, we may as a policy matter the network.24
safety services that satisfy the Communication Act decide to narrow the scope of users we
or Homeland Security Act was strongly supported Finally, although we preliminarily
actually serve relative to those we can
in responses to the First Notice. See e.g., National conclude that FirstNet may have
Public Safety Telecommunications Council
legally serve under the definition of
public safety entity.19 Some discretion within the bounds of the
(‘‘NPSTC’’) Comments at 6 available at http://
www.regulations.gov/#!documentDetail;D=NTIA- commenters were troubled by this public safety entity definition, we did
2014-0001-0026; see also e.g., National Association concept, indicating concern that not mean to imply in the First Notice
of State Chief Information Officers (‘‘NASCIO’’)
FirstNet might elevate policy goals any intent or legal authority to expand
Comments at 1 available at http:// beyond the definition of public safety
www.regulations.gov/#!documentDetail;D=NTIA- above the text and purpose of the Act
2014-0001-0066; see also e.g., Comments of the and that FirstNet must implement the entity. We merely stated that FirstNet
State of Florida at 5 available at http:// Act as written.20 may ‘‘decide to narrow the scope of
www.regulations.gov/#!documentDetail;D=NTIA- users it actually serves relative to those
2014-0001-0013; see also e.g., Comments of the
We believe, however, that FirstNet’s
State of California at 2 available at http:// discretion as to which entities to allow
www.regulations.gov/#!documentDetail;D=NTIA- onto the network is contemplated by 21 47 U.S.C. 1426(c)(2)(A)(vi) (emphasis added).
2014-0001-0037. 22 We note that, as is discussed infra, the
and important under the framework of
11 See AT&T Service, Inc. (‘‘AT&T’’), Comments, Communications Act prong of the public safety
the Act. For example, given the finite entity definition does provide for governmental
at 20, available at http://www.regulations.gov/
#!documentDetail;D=NTIA–2014-0001-0034; See nature of spectrum resources, the entities to designate nongovernmental entities as
also Association of Public Safety Communications exercise of such discretion is necessary public safety entities under certain criteria. The
Officials International (‘‘APCO’’) Comments, at consultation obligation of 47 U.S.C.
4–6 available at http://www.regulations.gov/ 1426(c)(2)(A)(vi) is not, however, limited to
asabaliauskas on DSK5VPTVN1PROD with NOTICES
13 47 U.S.C. 1401(26).
#!documentDetail;D=NTIA-2014-0001-0029. 14 Id. consultations on the selection of
§ 337(f).
12 We also note the definition of public safety
15 6 U.S.C. 101(6).
‘‘nongovernmental’’ entities, but rather entities in
entity is a critical component of both (1) the general. Thus, we believe the consultation
16 47 U.S.C. 1401(27) (emphasis added).
acquisition planning process as it provides key obligation must apply to all entities and that
17 Id.§ 337(f)(1).
inputs into understanding the resources that will be FirstNet must therefore have discretion with regard
18 6 U.S.C. 101(6). to all such entities.
derived from and available to qualifying public
19 79 FR 57060 (September 24, 2014). 23 See 47 U.S.C. 1426(b)(1); see also id.
safety entities and (2) the successful
implementation of our mission that, among other 20 See AT&T Comments, at 12, available at § 1426(c)(2) (describing FirstNet’s consultation
things, will require the promotion and adoption of http://www.regulations.gov/ requirements under the Act).
the NPSBN by public safety entities. #!documentDetail;D=NTIA-2014-0001-0034. 24 Id. § 1426(c)(1)(E)(ii).
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the difficulty in interpreting the public safety entity as a whole where in some entirety as emergency response
safety entity definition where the entity or all instances the provision of public providers. Congress contemplated that a
in question may not provide public safety services is by only some group of employees smaller than a larger
safety services all the time or through all employees or members of the organization can provide public safety
its personnel. organization. In other words, FirstNet services, and thus in the context of the
For example, in the context of the must determine whether public safety Act constitute public safety entities.
Communications Act definition of entity status should apply to all The section 337(f) prong of the public
public safety services, we noted in the employees or members of an safety services definition speaks only in
First Notice that the FCC interpreted the organization if only some such terms of ‘‘State or local government
provision to qualify services provided employees or members provide public entities’’ or ‘‘non-governmental
by governmental entities, such as city safety services. organizations.’’ This raises the question
planning or transportation departments, In the First Notice, we preliminarily as to whether an individual or group
so long as the services being provided concluded that as long as an entity smaller than the whole ‘‘entity’’ or
had as their sole or principal purpose provided a non-de minimis amount of ‘‘organization’’ can provide qualifying
the protection of life, safety, or public safety services, even if it services and thus constitute public
property.41 That is, under the FCC’s provides other services, it will qualify as safety entities under the Act via the
interpretation of section 337(f), with a public safety entity under the Act.43 section 337(f) prong. In section 337(f),
which we agree, an entity that does not We also preliminarily concluded that however, Congress included services
always or even most of the time provide this interpretation resulted in the entity provided by entities or organizations
services whose sole or principal as a whole qualifying as a public safety whose mission was not ‘‘primar[ily]’’
purpose is the protection of life, safety, entity even if only some employees of the provision of services the sole or
or property, may nevertheless provide the entity provided such services.44 principle purposes of which is the
qualifying ‘‘public safety services’’ when After review of the responses to the First protection of life, health, or property.
such an entity provides services that Notice, we clarify below our That is, these entities or organizations
meet the sole or principal purpose preliminary interpretation of the Act in by definition may sometimes have other
test.42 However, unlike the context of this regard, and seek further comments. primary missions, but occasionally as a
the Communications Act definition of whole or through only some employees
public safety services—where services 1. Whether an Individual or Subgroup of
provide qualifying services. As a result,
can vary day-to-day or employee-to- an Organization Ever Qualifies as a
we preliminarily conclude that under
employee—FirstNet is faced with the Public Safety Entity
the section 337(f) prong a public safety
question under the Act as to whether an As an initial matter, we restate our entity under the Act can include at least
entity ever qualifies as a public safety preliminary conclusion from the First a group of employees smaller than a
entity by virtue of providing a public Notice here, for the reasons stated larger organization.46 We seek
safety service in only some instances. therein and below, that individuals such comments on the above interpretations
Further, FirstNet must then address the as volunteer firemen or employees of an and their collective effect on the
question of whether such entity should organization (in addition to or rather definition of public safety entity.
always have primary access to or use of than an organization as a whole) may
the FirstNet network as a result. This qualify as public safety entities if they 2. Overall Framework for Determining
question applies regardless of whether provide or are reasonably likely to Public Safety Entities
the entity in question is an organization provide public safety services. This As an overall framework for
or an individual. preliminary interpretation applies qualifying public safety entities, we first
In the context of an organization, whether the individual performs preliminarily conclude that where an
FirstNet must also determine whether services that qualify under the section organization as a whole is charged with
the organization qualifies as a public 337(f) or the HSA prong of the providing, and does provide public
definition of public safety services. safety services, the organization
even if section 337(f) of the Communications Act Under the HSA prong of the qualifies as a public safety entity and all
imposed a primary mission requirement on the definition, ‘‘personnel’’ (as contrasted members of the organization can
entity providing a service (which it does not), it is
merely defining a service, and some other entity with ‘‘agencies . . . and authorities’’) (following consultation and within the
may only provide such a service part time. are expressly included as service discretion discussed in part III of this
41 See Service Rules for the 698–746, 747–762 providers, and thus we believe it is Third Notice) be given access to or use
and 777–792 MHz Bands, Fourth Report and Order, reasonable to conclude that an ‘‘entity’’ of the network under the Act. This
26 FCC Rcd. 10799 (F.C.C. July 21, 2011) (Fourth
Report and Order).
under the Act performing such services preliminary conclusion is fairly clear
42 79 FR 57061 (September 24, 2014) (stating should be interpreted to include under the Act and would apply to
‘‘FirstNet gives deference to the conclusions individual ‘‘personnel.’’ 45 Although an traditional first responder organizations,
reached by the Commission in its interpretation of organization could theoretically perform among others.
section 337(f)(1) and as independent entity owes no the same services as individual Next, with respect to organizations
such deference) (emphasis added). In response to
this preliminary interpretation, one commenter personnel, we believe it is reasonable that do not meet the above criteria, we
stated that ‘‘FirstNet’s reliance on an FCC Order under the structure and purposes of the preliminarily conclude that those
interpreting section 337 is misplaced, and FirstNet Act to include individual personnel members of such an organization that
certainly need not afford the FCC ‘deference’ in its such as volunteer firefighters within the provide or are reasonably likely to
asabaliauskas on DSK5VPTVN1PROD with NOTICES
interpretation. As an ‘independent authority,’
FirstNet owes no such deference.’’ See APCO term ‘‘entity.’’ This interpretation is also provide public safety services for a non-
Comments, at 5, available at http:// supported by the Act’s inclusion, via the de minimis amount of time, qualify as
www.regulations.gov/#!documentDetail;D=NTIA- HSA prong, of ‘‘hospital emergency public safety entities under the Act and
2014-0001-0029. However, as an independent facilities’’ but not hospitals in their can (following consultation and within
authority, we simply agree with FCC interpretation.
The FCC interpretation predated the Act and thus the discretion discussed in part III of
43 79 FR 57060 (September 24, 2014).
Congress is assumed to have been aware of the
44 79 FR at 57062. 46 See Fourth Report and Order (discussing parts
interpretation and could have limited the Act
accordingly if it did not agree with the FCC 45 6 U.S.C. 101(13) (stating the term means of organizations using services under the section
interpretation. officers and employees). 337(f) prong).
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entities, we also sought comment on services under the Act if they provide Under the HSA prong, no such
such non-governmental entities that services ‘‘the sole or principal purpose authorizations of non-governmental
would qualify and received similar of which is to protect the safety of life, entities are necessary. Thus, if
examples such as: health or property’’ and those services personnel or subgroups of non-
1. Transportation Authorities are not ‘‘made commercially available to governmental organizations qualify
2. Electric and Water Utilities the public.’’ We preliminarily conclude, under the HSA prong as ‘‘emergency
3. Non-governmental and private, and for example, that private utility workers response . . . personnel’’ or personnel
non-profit and for-profit that remove a live electrical wire ‘‘related’’ to such emergency response
organizations (e.g., health care touching a car at an accident scene is personnel, they would also qualify as
institutions, ambulance companies, performing a service the principal public safety entities under the Act. We
independent firefighting purpose of which is to protect the safety thus preliminarily conclude, for
corporations) of life.58 We also preliminarily conclude example, that a private utility worker
4. Non-government disaster relief and that such a service is not one that is that removes a live electrical wire
aid organizations (e.g., American typically ‘‘commercially available,’’ touching a car at an accident scene is
Red Cross, Salvation Army) albeit incident to or as a result of a performing a service typically provided
5. Education Institutions 56 commercially available service of
by an emergency response provider, or,
providing electricity. In the context of
In all cases, however, as discussed at a minimum, by related personnel
the Act, then, these services would
above, FirstNet is obligated to consult supporting such a response provider.
qualify as public safety services, and
with regional, State, tribal, and local therefor the workers providing such We also preliminarily conclude that,
jurisdictions regarding the ‘‘selection of services would qualify as public safety subject to further consultations
entities seeking access to or use of the entities as defined in the Act.59 We seek mentioned above regarding entities
[network].’’ 57 Although the First Notice comments on these preliminary seeking access to the network, non-
(and this Third Notice) contributes to conclusions. governmental personnel involved in or
such consultations, FirstNet intends to supporting such emergency response
conduct additional, direct consultations As mentioned, however, under the activities, such as the utility worker
with State points of contact (‘‘SPOCs’’) section 337(f) prong, such a private
described above removing an electrical
regarding the selection of entities entity would have to be ‘‘authorized by
wire, can legally qualify under the Act
permitted on the network. FirstNet can a governmental entity whose primary
as public safety entities. We seek
then exercise the discretion discussed in mission is the provision of such
services’’ to qualify as providing public comments on these preliminary
Part III of this Notice in light of such conclusions.
consultations within the outer legal safety services. We preliminarily
boundaries FirstNet draws around the conclude that in our State and local VII. Ex Parte Communications
definition of public safety entity. consultations under the Act regarding
We preliminarily conclude, however, the ‘‘entities seeking access to or use of Any non-public oral presentation to
that subject to such consultation and in the [network],’’ traditional governmental FirstNet regarding the substance of this
accordance with our above analyses in fire, police, and EMS entities, as Second Notice will be considered an ex
this Third Notice, the personnel or examples, may authorize non- parte presentation, and the substance of
subgroups within a non-governmental governmental entity personnel and the meeting will be placed on the public
organization qualify as public safety subgroups, and thus if such personnel record and become part of this docket.
entities under the Act to the extent such or subgroups also meet the criteria No later than two (2) business days after
personnel or subgroups provide public described in part V. of this Third Notice, an oral presentation or meeting, an
safety services as defined under either they would be public safety entities interested party must submit a
the section 337(f) prong or the HSA under the Act.60 We seek comments on memorandum with additional
prong of the public safety services this preliminary conclusion and the information as necessary, or to request
definition. This is merely stating the appropriate method and duration of that the party making the filing do so,
statutory framework under the Act with such authorizations.
if FirstNet believes that important
the addition of our conclusions above information was omitted or
58 We note that most utilities are non-
regarding whether personnel or characterized incorrectly. Any written
governmental entities. As such, we anticipate
subgroups can qualify as ‘‘entities’’ relying heavily on the authorization of personnel presentation provided in support of the
under the Act. from such entities by ‘‘primary mission’’ first oral communication or meeting will also
Regarding the section 337(f) prong, responders under the section 337(f) prong in be placed on the public record and
personnel, or subgroups of non- determining which personnel should gain access to
the network as public safety entities. become part of this docket. Such ex
governmental organizations, if 59 We note that the FCC has not independently parte communications must be
authorized under the terms of that determined whether utilities provide ‘‘public safety submitted to this docket as provided in
section, provide qualifying public safety services’’ under section 337(f) for purposes of the ADDRESSES section above and clearly
eligibility for direct licensing of spectrum in the 700
56 See, e.g., State of Washington Interoperability MHz public safety band, including the portion of
labeled as an ex parte presentation.
Executive Committee Comments, at 1–2, available that spectrum designated for public safety Federal entities are not subject to these
asabaliauskas on DSK5VPTVN1PROD with NOTICES
at http://www.regulations.gov/ narrowband use. FirstNet’s interpretation of section procedures.
#!documentDetail;D=NTIA-2014-0001-0055; see 337(f) and its determination with regard to ‘‘public
also State of Maine ConnectME Authority safety entities’’ eligible as end users of the network, Dated: April 27, 2015.
Comments, at 2, available at http:// including utilities, is based on the specific Jason Karp,
www.regulations.gov/#!documentDetail;D=NTIA- requirements of the Act in their totality and is not
2014-0001-0017; see also e.g, State of Oregon intended to modify any interpretation or suggest Acting Chief Counsel, First Responder
Comments, at 2–3, available at http:// any future treatment of section 337(f) by the FCC. Network Authority.
www.regulations.gov/#!documentDetail;D=NTIA- 60 See also First Report and Order and Third [FR Doc. 2015–10140 Filed 5–4–15; 8:45 am]
2014-0001-0065. Notice of Proposed Rulemaking, 14 FCC Rcd.
57 47 U.S.C. 1426(c)(2)(A)(vi).
BILLING CODE 3510–TL–P
152,187–188.
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Document Created: 2015-12-16 07:54:01
Document Modified: 2015-12-16 07:54:01
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice and request for comments. | |
| Dates | Submit comments on or before June 4, 2015. | |
| Contact | Eli Veenendaal, First Responder Network Authority, National Telecommunications and Information Administration, U.S. Department of Commerce, 12201 Sunrise Valley Drive, M/S 243, Reston, VA 20192; 703-648-4167; or [email protected] | |
| FR Citation | 80 FR 25663 | |
| RIN Number | 0660-XC01 |
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