80 FR 77592 - Proposed Scope of NTIA's Authority Regarding FirstNet Fees
DEPARTMENT OF COMMERCE
National Telecommunications and Information Administration Federal Register Volume 80, Issue 240 (December 15, 2015)
National Telecommunications and Information Administration
Federal Register Volume 80, Issue 240 (December 15, 2015)
| Page Range | 77592-77598 | |
| FR Document | 2015-31516 |
[Federal Register Volume 80, Number 240 (Tuesday, December 15, 2015)] [Proposed Rules] [Pages 77592-77598] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-31516] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Telecommunications and Information Administration 47 CFR Chapter V [Docket Number: 151209999-5999-01] RIN 0660-AA30 Proposed Scope of NTIA's Authority Regarding FirstNet Fees AGENCY: National Telecommunications and Information Administration, U.S. Department of Commerce. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The National Telecommunications and Information Administration (NTIA) publishes this notice of proposed rulemaking to request public comment as it develops rules related to its review and approval of fees imposed by the First Responder Network Authority (FirstNet) as authorized by the Middle Class Tax Relief and Job Creation Act of 2012 (the Act). DATES: Submit comments on or before January 14, 2016. ADDRESSES: The public is invited to submit written comments to this proposed rule. Written comments may be submitted electronically through www.regulations.gov or by mail (to Office of Public Safety Communications; National Telecommunications and [[Page 77593]] Information Administration; U.S. Department of Commerce; 1401 Constitution Avenue NW., Washington, DC 20230.). Comments received related to this proposed rule 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: Patrick Sullivan; Office of Public Safety Communications; National Telecommunications and Information Administration; U.S. Department of Commerce; 1401 Constitution Avenue NW., Washington, DC 20230; psullivan@ntia.doc.gov; (202) 482-5948. SUPPLEMENTARY INFORMATION: Table of Contents I. Introduction, Summary of Proposed Rules II. Background: Relevant Statutory Provisions A. FirstNet-Assessed Fees Must Ensure Self-Funding and be Approved by NTIA. B. FirstNet's Finances are Subject to Broader, Independent Review. III. NTIA's Annual Fee Review Focuses on Whether FirstNet Fees and Other Income, In Aggregate, Are Sufficient, and Do Not Exceed the Amount Necessary, to Recoup FirstNet's Total Expense A. Standard of NTIA Fee Review and Approval. B. NTIA's Fee Review and Approval Process Does Not Assess the Reasonableness of a Proposed Fee. IV. Methodology of NTIA Fee Review and Approval Process A. Focus of NTIA Fee Review Methodology. B. NTIA's Fee Review and Approval Process Defers to FirstNet on Necessary Reserves. V. FirstNet-Proposed Fees Subject to NTIA Review Under Section 6208 Must be Addressed Upon NTIA Disapproval A. Fees Subject to NTIA Review and FirstNet Reconsideration Upon NTIA Disapproval. B. Income Other Than Fees is Not Subject to NTIA Fee Review. VI. Ex Parte Communication I. Introduction, Summary of Proposed Rules 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.)) (Act) established the First Responder Network Authority (FirstNet) as an independent authority within the National Telecommunications and Information Administration (NTIA).\1\ Congress mandated FirstNet ensure the building, deployment, and operation of an interoperable nationwide public safety broadband network (Network).\2\ In order to meet this critical directive and provide affordable, reliable, and sustainable broadband services for first responders across the United States, FirstNet must operate as a business enterprise. Today, public safety entities procure broadband services from numerous commercial service providers. When it enters the market, FirstNet will start with no market share and will have to compete for customers by distinguishing its product in terms of features, price, and reliability from products offered by commercial providers. To be successful, FirstNet will need to employ business strategies with flexibility and agility commonplace in the private sector. --------------------------------------------------------------------------- \1\ See 47 U.S.C. 1424(a). \2\ See 47 U.S.C. 1426(b)(1) (stating FirstNet shall ``. . . take all actions necessary to ensure the building, deployment, and operation of the nationwide public safety broadband network . . .''). --------------------------------------------------------------------------- This document proposes rules that will enable NTIA to execute its duty to review specific fees proposed by FirstNet in a manner compatible with FirstNet's need to operate as a business in a competitive marketplace. NTIA proposes to execute its statutory fee review duties to afford FirstNet as much flexibility as possible to establish its business and budgetary goals and to adjust those goals as necessary to respond to the day-to-day realities of the broader competitive marketplace in which FirstNet must operate. Ultimately, NTIA intends to implement a fee review process that allows FirstNet to respond to changing market conditions and the demands of its vital and dynamic customer base: First responders. The Act requires FirstNet to be permanently self-funding and authorizes it to assess and collect certain types of fees to assure its sustainability. The Act requires that the total amount of FirstNet's annual fees must be sufficient to recoup FirstNet's total expenses, but such fees must not exceed the amount necessary to carry out its duties under the Act.\3\ As part of FirstNet's self-funding obligations, the Act directs NTIA to review these fees on an annual basis; they may only be assessed if approved by NTIA.\4\ --------------------------------------------------------------------------- \3\ See 47 U.S.C. 1428(b). \4\ See 47 U.S.C. 1428(c). --------------------------------------------------------------------------- This notice of proposed rulemaking describes NTIA's overarching scope, boundaries, and guidelines for NTIA's fee review and approval process as required by law. Section II of this notice of proposed rulemaking details relevant statutory provisions and makes clear that, while NTIA has a distinct role through the fee review and approval process to ensure that FirstNet is self-funded, NTIA's role is a relatively limited part of broader statutory provisions designed to monitor FirstNet's financial condition and operational status. Section III defines the scope of NTIA's proposed fee review and approval process. NTIA has determined that this process is for a particular and limited purpose: it must examine only whether the proposed fees of another federal entity--FirstNet--as set forth under Section 6208 of the Act, are, in aggregate and in combination with any FirstNet non-fee-based income, sufficient, but not in excess of, the projected funds that FirstNet needs to recoup the total expenses required to carry out its statutory obligations in a given year. NTIA acknowledges that, as authorized by the Act, FirstNet might receive income which is separate and distinct from the fee categories defined in Section 6208. NTIA recognizes that such income will impact NTIA's determination whether FirstNet's proposed fees, in aggregate and in combination with such non-fee-based income, will meet but not exceed the funds it needs on an annual basis. However, NTIA proposes that the Act affords NTIA no authority to review or approve as a ``fee'' any other form of income FirstNet may receive beyond those fees listed in Section 6208(a). In Section IV, NTIA proposes a methodology for its fee review that must by law occur annually and prior to FirstNet's assessment of fees. Because NTIA's fee review process is for particular and limited purposes focusing on the financial sustainability of another federal entity within the Department of Commerce, NTIA will include in its review a review of FirstNet's projected expenses as set forth in its approved budgets as well as a review of FirstNet's prior-year actual expenses and revenues to facilitate FirstNet's compliance with Section 6208(b). To that end, NTIA proposes to utilize FirstNet's regular budget process and financial statements. NTIA also proposes to defer to FirstNet on any need for reserves, working capital, or similar fund categories. NTIA, however, will take such fund categories into consideration as part of its determination of whether the total proposed fees under Section 6208(b) meet, but do not exceed, FirstNet's total expenses. [[Page 77594]] In Section V, NTIA discusses the fees that NTIA has specific jurisdiction to review; if, in its review of aggregate revenues and costs, it determines that FirstNet has not satisfied the legal standard, FirstNet must adjust its fees or otherwise make budgetary changes to ensure that the standard is met. Specifically, NTIA proposes to define the term ``fee,'' for purposes of its statutory obligations under Section 6208(c) of the Act, to mean FirstNet's direct collection of money that is generated from the three categories established in Section 6208(a) of the Act: (1) Network user fees; (2) lease fees pursuant to a covered leasing agreement (CLA); and (3) fees from entities seeking access to or use of any network equipment or infrastructure constructed or otherwise owned by FirstNet.\5\ Under this proposed rule, NTIA can direct FirstNet to address only those proposed fees that fall into one of these three categories. Further, NTIA proposes that it will not evaluate the reasonableness, or similar subjective attributes, of the specific fees assessed by FirstNet or its prospective partner or partners as contemplated in the Act. Specific NTIA rules are proposed in new 47 CFR Chapter V; Subchapter A will be utilized for NTIA rules that relate to FirstNet, and Subchapter B will be reserved for rules promulgated by FirstNet itself. --------------------------------------------------------------------------- \5\ See 47 U.S.C. 1428(a). --------------------------------------------------------------------------- We seek comment on these preliminary proposals. We also look forward to FirstNet's progress in its procurement process, which may provide additional information relevant to NTIA's duties under Section 6208(c). With such information from stakeholders and FirstNet, NTIA will be better informed to solidify the scope of its fee review and approval process as appropriate. II. Background: Relevant Statutory Provisions A. FirstNet-Assessed Fees Must Ensure Self-Funding and Be Approved by NTIA The Act established FirstNet as an independent authority within NTIA.\6\ The Act authorizes FirstNet to take all actions necessary to ensure the building, deployment, and operation of the Network.\7\ To achieve this significant and unprecedented task, FirstNet must operate in many respects as a private sector business enterprise.\8\ --------------------------------------------------------------------------- \6\ See 47 U.S.C. 1424(a). \7\ See 47 U.S.C. 1426(b). \8\ To that end, the Act set forth several key provisions establishing FirstNet as a business enterprise. For example, the Act requires the creation of the FirstNet Board, which has the fiduciary and operational functions assigned to boards of corporations. See 47 U.S.C. 1424(b). Furthermore, Board members appointed by the Secretary of Commerce must include individuals with various types of business experience, including expertise in building, deploying, and operating commercial telecommunications networks, and in financing and funding telecommunications networks. See id. FirstNet may only act as authorized by the Board to execute any powers granted by the Act to FirstNet, spend funds, or take other actions deemed necessary, appropriate, or advisable to accomplish the purposes of the Act. See 47 U.S.C. 1426(a)(1); see also 47 U.S.C. 1426(a)(5). As a business enterprise, FirstNet may contract with individuals; private companies; organizations; institutions; and Federal, State, regional, and local agencies. See 47 U.S.C. 1426(a)(3). The Act allows FirstNet to engage in other business activities, including selecting agents, consultants, or experts and hiring a program manager to carry out key aspects of deploying the NPSBN. See 47 U.S.C. 1425(b). --------------------------------------------------------------------------- FirstNet's authority to operate as a business can and should further its ability to meet the Act's mandate that it become a self- sustaining enterprise. Section 6208 of the Act makes clear that FirstNet must establish permanent self-funding and is authorized to collect fees for specified uses of the Network or its components in furtherance of that obligation. The Act established specific parameters for FirstNet's fee assessments described in Section 6208(a) to drive sustainability and continual reinvestment of FirstNet revenues into the Network. Section 6208(b), entitled, ``Establishment of Fee Amounts; Permanent Self- Funding,'' requires that the total amount of the fees assessed under Section 6208(c) for each fiscal year shall be sufficient, but cannot exceed, the amount necessary to recoup the total expenses of FirstNet as it carries out its duties under the Act.\9\ Moreover, FirstNet must reinvest amounts received from the assessment of fees under Section 6208 for constructing, maintaining, operating, or improving the Network.\10\ Specific to FirstNet's authority to assess and collect these fees, Section 6208(c) requires that NTIA review such fees ``on an annual basis, and such fees may only be assessed if approved by . . . NTIA.'' \11\ --------------------------------------------------------------------------- \9\ See 47 U.S.C. 1428(b). \10\ See 47 U.S.C. 1428(d). \11\ 47 U.S.C. 1428(c). --------------------------------------------------------------------------- Additionally, the Act makes clear that FirstNet should consider public-private partnerships, affording it additional authority to creatively support the provision of a self-funded broadband network for use by public safety entities.\12\ Such partnerships might result in FirstNet's collection of income that does not fall within the fees specified in Section 6208(a).\13\ --------------------------------------------------------------------------- \12\ See, e.g., 47 U.S.C. 1428(a) (describing public-private arrangements to construct, manage, and operate the nationwide public safety broadband network between FirstNet and a secondary user); see also 47 U.S.C. 1426(b)(3) (requiring that FirstNet requests for proposals, to the maximum extent economically feasible, ``include partnerships with existing commercial mobile providers to utilize cost- effective opportunities to speed deployment in rural areas''). \13\ See, e.g., Sec. 1426(a)(3) (referencing ``grants and funds from . . . individuals, private companies, organizations, institutions, and Federal, State, regional, and local agencies''); Sec. 1426(a)(4) (referencing ``gifts, donations, and bequests of property, both real and personal''). --------------------------------------------------------------------------- B. FirstNet's Finances are Subject to Broader, Independent Review NTIA's approach in this proposed rule reflects the scope of its fees review authority in the context of other supervision of FirstNet's finances and operations, which taken together, ensure a high degree of oversight over FirstNet's finances under the Act. The Act sets forth multiple methods of oversight of FirstNet well beyond the limited review and approval of fees required of NTIA under Section 6208(c). For example, FirstNet is subject to an independent financial audit. Section 6209 of the Act requires that the Secretary of Commerce engage an independent auditor to conduct an annual audit of all of FirstNet's commercial corporate transactions which the auditor will submit to Congress, the President, and FirstNet.\14\ In addition, the Act requires an annual, ``comprehensive and detailed report of the operations, activities, financial condition, and accomplishments of [FirstNet],'' to be submitted to Congress along with ``recommendations or proposals for legislative or administrative action as [FirstNet] deems appropriate.'' \15\ Furthermore, FirstNet must comply on a day- to-day basis with all other applicable federal financial laws and regulations. In light of these broader oversight provisions, NTIA's narrow scoping of its fee review authority is appropriate. --------------------------------------------------------------------------- \14\ See 47 U.S.C. 1429. \15\ 47 U.S.C. 1430. --------------------------------------------------------------------------- III. NTIA's Annual Fee Review Focuses on Whether FirstNet Fees and Other Income, in Aggregate, Are Sufficient, and Do Not Exceed the Amount Necessary, To Recoup FirstNet's Total Expenses A. Standard of NTIA Fee Review and Approval The Act does not provide a specific standard of review for NTIA's annual fee review and approval process under Section 6208(c).\16\ However, examination of other provisions in Section 6208 and the Act at large inform NTIA's proposed approach to FirstNet [[Page 77595]] fee review. FirstNet has a duty under Section 6208(b) to ensure that, during a given fiscal year, the fees it assesses are sufficient, and shall not exceed the amount necessary, to recoup the ``total expenses'' associated with carrying out its duties as specified under the Act.\17\ --------------------------------------------------------------------------- \16\ See 47 U.S.C. 1428(c). \17\ See 47 U.S.C. 1428(b). --------------------------------------------------------------------------- Given this overarching directive in Section 6208(b), which immediately precedes the Act's assignation of fee review to NTIA in Section 6208(c), NTIA proposes that the Act's purpose for the fee review is solely to support FirstNet's obligation under Section 6208(b) to be self-funding. Thus, NTIA intends to base its decisions on FirstNet's proposed fees by only examining whether the fees are, in aggregate and combined with other non-fee-based income, sufficient, but not in excess, of the projected funds FirstNet needs to carry out its statutory obligations in a given fiscal year. In this way, NTIA's review and approval of FirstNet-proposed fees under Section 6208 will exclusively focus on FirstNet's projected income and expenses to further the self-funding requirements and limitations of Section 6208(b). We seek comment on this proposed approach. B. NTIA's Fee Review and Approval Process Does Not Assess the Reasonableness of a Proposed Fee The scope of review of a fee is established by the statute.\18\ As a result, we propose that NTIA's fee review is scoped to self- sustainability and does not include review of the reasonableness of any fee assessed by FirstNet or its prospective partner or partners as contemplated in the Act. --------------------------------------------------------------------------- \18\ See Principles of Federal Appropriations Law, Volume III, Third Edition, GAO, pp 12-140-12-181. GAO 08-978 SP (Washington, DC, September 2008). --------------------------------------------------------------------------- The wording of the Act itself does not direct NTIA to perform a reasonableness review. Section 6208(b), entitled, ``Establishment Of Fee Amounts; Permanent Self-Funding,'' requires that the total amount of the fees assessed by FirstNet for each fiscal year must be sufficient, but cannot exceed, the amount necessary to recoup the total expenses of FirstNet as it carries out its duties under the Act.\19\ NTIA's mandate to review and approve FirstNet fees directly follows this fee structure requirement in Section 6208(c).\20\ The Act provides no other direction regarding fee review, but the structure of the statute clearly indicates congressional intent to ensure that the assessed fees drive a self-funded network. --------------------------------------------------------------------------- \19\ See 47 U.S.C. 1428(b). \20\ See 47 U.S.C. 1428(c). --------------------------------------------------------------------------- A review of other provisions of Title 47 demonstrates that when Congress intends for rates to be subject to a review for ``reasonableness'' or other subjective standards, it states this intention explicitly. For example, Section 201 of the Communications Act directs the Federal Communications Commission (FCC) to determine whether the charges of telecommunications carriers are ``just and reasonable.'' \21\ Similarly, Section 224 of the Communications Act directs the FCC to regulate the rates, terms, and conditions of pole attachments to ensure they are ``just and reasonable.'' \22\ Here, with respect to FirstNet's assessment of fees under Section 6208, and NTIA's review and approval of such fees, the Act established no such ``just and reasonable'' standard. --------------------------------------------------------------------------- \21\ See 47 U.S.C 201 (stating that, for common carrier services, ``[a]ll charges . . . for and in connection with such communication service, shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is hereby declared to be unlawful.''). \22\ See 47 U.S.C 224 (b)(1) (stating that ``the Commission shall regulate the rates, terms, and conditions for pole attachments to provide that such rates, terms, and conditions are just and reasonable, and shall adopt procedures necessary and appropriate to hear and resolve complaints concerning such rates, terms, and conditions.'') --------------------------------------------------------------------------- Moreover, a reasonableness review of FirstNet fees is unnecessary as a matter of policy. The Act does not mandate or require any public safety entity to purchase services from FirstNet. FirstNet must compete for subscribers by offering a compelling value proposition to prospective public safety customers. Public safety users themselves will determine whether FirstNet's proposed user fees are reasonable in comparison to the fees they are offered by competing providers. Thus, NTIA proposes that it will not assess whether individual or total fees in any given category described in Section 6208(a) are reasonable, proportionate, or otherwise subjectively appropriate in light of individual or total fees in that category, or any other category of fees listed in Section 6208(a). With the proposed scope of its fee review, NTIA meets the intent of the self-funding provisions, but does not import ``just and reasonable'' review parameters that Congress clearly could have, but did not, include in the statute. We seek comment on these preliminary proposals. IV. Methodology of NTIA Fee Review and Approval Process A. Focus of NTIA Fee Review Methodology Based on the preliminary conclusions above, NTIA proposes to base its approval of fees upon a determination of whether the proposed fees, in aggregate, when combined with any projected non-fee-based income that FirstNet receives, meet but do not exceed FirstNet's anticipated total expenses associated with carrying out its duties as specified under the Act in a given year. As required by the Act, NTIA will conduct its fee review and approval process on an annual basis. Further, NTIA's proposed fee review and approval process will occur before a fee is assessed as required by the Act, and NTIA expects that FirstNet will propose such fees to NTIA in writing. Because FirstNet must compete in a broader marketplace for the opportunity to provide broadband service to public safety entities, it will need the flexibility over the course of a fiscal year to adjust specific fees it wishes to assess pursuant to Section 6208(a). Thus, to empower FirstNet with the flexibility needed to compete in the marketplace, NTIA proposes that, as part of its annual fee review, it will also review FirstNet's actual fees and expenses from the previous four fiscal quarters. This process will afford FirstNet the opportunity to describe any significant discrepancies between projected and actual expenses and revenue of that previous fiscal year and detail how its projected fees and revenues for the upcoming fiscal year have addressed these discrepancies. In doing so, FirstNet will have an opportunity on an annual basis to ensure that its duty under Section 6208(b) is met. To determine FirstNet's anticipated expenses, among the specific costs areas that NTIA may consider are: (1) Salaries and Benefits; (2) Travel; (3) Services: Federal Sources; (4) Services: Non- Federal Sources; (5) Facilities Rental; (6) Supplies, Materials, and Printing; (7) Equipment; and (8) Other expenses or obligations incurred for future contract award, capital reserves, or other permitted expenses or obligations. NTIA anticipates deferring to FirstNet to determine the reasonableness of projected obligations in the aforementioned or other categories. Throughout the fee review and approval process, NTIA anticipates utilizing the budget documents and financial statements produced in the normal course of FirstNet's business. NTIA might also utilize FirstNet's [[Page 77596]] annual budget reports as approved by the FirstNet Board and submitted as part of the President's Budget and FirstNet's mandated annual report to Congress. Therefore, NTIA proposes that it will make, on an annual basis, one of three determinations with regard to proposed fees: (1) FirstNet's proposed fees, in aggregate, when combined with any projected non-fee- based income to be received by FirstNet, meet but do not exceed FirstNet's projected total expenses; (2) FirstNet's proposed fees, in aggregate, when combined with any projected non-fee-based income to be received by FirstNet, do not meet FirstNet's projected total expenses; or (3) FirstNet's proposed fees, in aggregate, when combined with any projected non-fee-based income to be received by FirstNet, exceed FirstNet's projected total expenses. Upon making any of these determinations, NTIA will communicate its determination in writing to FirstNet. Should NTIA make the second or third determination listed above, NTIA will not approve FirstNet's proposed fees, and FirstNet may not assess them. NTIA proposes that it will accept any revised proposed fees or FirstNet approved revised budgets when provided by FirstNet in writing and evaluate them consistent with the scope and methodology proposed above. We seek comment on this proposed approach to NTIA's fee review and approval process. We also seek comment on alternative methodologies that will further our fee review and approval process consistent with the Act's directives. B. NTIA's Fee Review and Approval Process Defers to FirstNet on Necessary Reserves NTIA proposes that it should defer to FirstNet, in the context of its budgetary planning process, regarding the use and retention of reserves or working capital funds. By doing so, NTIA will not, in its fee review and approval process, assess whether or what level of funds FirstNet should maintain in reserves, capital accounts, or other funding categories. FirstNet's routine budget, auditing, and accounting processes will presumably determine the need for such capital reserve funds. NTIA plans to defer to FirstNet's determination of need for such funds through these processes. We seek comment on this proposed approach to NTIA's fee review and approval process. Moreover, NTIA proposes that, in its fee review and approval process, it will take into consideration reserve funds at the levels designated in FirstNet's budget, to determine whether FirstNet's proposed fees meet but not exceed FirstNet's total expenses. In doing so, NTIA will deem such funds to be a part of FirstNet's projected total expenses under Section 6208(b) of the Act. We seek comment on this proposal. V. FirstNet-Proposed Fees Subject to NTIA Review Under Section 6208 Must Be Addressed Upon NTIA Disapproval A. Fees Subject to NTIA Review and FirstNet Reconsideration Upon NTIA Disapproval The Act assigns a clear duty to NTIA under Section 6208: approve or disapprove the specific fees FirstNet aspires to assess under Section 6208. Under Section 6208(a) of the Act, FirstNet is authorized to assess and collect the following fees: 1. A Network User Fee: ``A user or subscription fee from each entity, including any public safety entity or secondary user, that seeks access to or use of the [Network].'' \23\ --------------------------------------------------------------------------- \23\ 47 U.S.C. 1428(a)(1). --------------------------------------------------------------------------- 2. Fees Pursuant to a Covered Leasing Agreement: ``A fee from any entity that seeks to enter into a [CLA].'' \24\ --------------------------------------------------------------------------- \24\ 47 U.S.C. 1428(a)(2)(A); See also 47 U.S.C. 1428(a)(2)(B) (stating that the Act defines a CLA as ``a written agreement resulting from a public-private arrangement to construct, manage, and operate the nationwide public safety broadband network between the First Responder Network Authority and secondary user to permit-- (i) access to network capacity on a secondary basis for non-public safety services; and (ii) the spectrum allocated to such entity to be used for commercial transmissions along the dark fiber of the long-haul network of such entity.''). --------------------------------------------------------------------------- 3. Lease Fees Related to Network Equipment and Infrastructure: ``A fee from any entity that seeks access to or use of any equipment or infrastructure, including antennas or towers, constructed or otherwise owned by the First Responder Network Authority resulting from a public-private arrangement to construct, manage, and operate the [Network]'' \25\ --------------------------------------------------------------------------- \25\ 47 U.S.C. 1428(a)(3). As a threshold matter for purposes of this proposed rule and NTIA's duty under Section 6208 of the Act, the word ``fee,'' as used in Section 6208(c) of the Act, must be defined. By defining the fees NTIA is to review, NTIA identifies the specific fees FirstNet must address prior to NTIA approval in the event NTIA must disapprove FirstNet- approved fees under the standards set forth above. To implement its fee review obligations under the Act, NTIA must determine the meaning of the term ``fee'' as used in Section 6208. In the case of the Act, the three sets of fees, which FirstNet may assess, and which NTIA must review if assessed, are clearly defined within Section 6208(a). Thus, NTIA proposes that a ``fee'' that will be subject to its review and approval under Section 6208(c) is FirstNet's collection of money that falls within the three categories in Section 6208(a): (1) Network user fees; (2) lease fees related to network capacity, pursuant to a covered leasing agreement; and (3) fees from entities seeking access to or use of any equipment or infrastructure constructed or otherwise owned by FirstNet.\26\ Given the clear language in Section 6208(a) defining the fees that FirstNet may assess, and the corresponding language in Section 6208(c) directing NTIA to review fees ``assessed under [Section 6208],'' NTIA proposes that its fee review authority, and FirstNet's obligation to address fees upon NTIA disapproval of proposed fees, is scoped to the three above- referenced categories. We seek comment on this preliminary proposal. --------------------------------------------------------------------------- \26\ See 47 U.S.C. 1428(a). --------------------------------------------------------------------------- B. Income Other Than Fees Is Not Subject to NTIA Fee Review As noted above, NTIA recognizes that, under the Act, FirstNet may receive income that is separate and distinct from the fees defined in Section 6208(a). Such income must be factored into NTIA's determination of whether proposed fees, in aggregate, will meet but not exceed the funds needed by FirstNet on an annual basis. However, as the Act limits NTIA's review and approval authority to ``the fees assessed in [Section 6208],'' NTIA proposes that the Act gives it no authority to review or approve as a ``fee'' any other form of income FirstNet might receive. NTIA proposes that non-fee-based income, emanating from arrangements allowed by statute, is not a ``fee'' under Section 6208(a). Furthermore, NTIA proposes that it will consider any non-fee income only as part of its determination of whether such income, when combined in aggregate with the fees defined in Section 6208(a), will be sufficient to recoup FirstNet's total expenses, but not exceed the amount necessary, to carry out its statutory duties and responsibilities for the fiscal year involved. Moreover, NTIA proposes that it will not analyze the terms and conditions of any CLA, or any other agreement between FirstNet and another entity, beyond those specific terms and conditions which establish any fees that meet the three categories described in Section 6208(a). We seek comment on these preliminary proposals. VI. Ex Parte Communications Any non-public oral presentation to NTIA regarding the substance of this proposed rule will be considered an ex parte presentation, and the substance of [[Page 77597]] 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 to NTIA summarizing the substance of the communication. NTIA reserves the right to supplement the memorandum with additional information as necessary, or to request that the party making the filing do so, if NTIA 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. Classification This rule has been determined to be not significant for purposes of Executive Order 12866. Regulatory Flexibility Act This proposed rulemaking, issued under the authority of the Act, will not have a significant economic impact on a substantial number of small entities as defined under the Regulatory Flexibility Act (RFA). If implemented, this rule would establish regulations, as required under the Act, for NTIA and FirstNet regarding the process by which NTIA reviews and approves or disapproves fees FirstNet proposes to assess. The RFA requires federal agencies to prepare an analysis of a rule's impact on small entities whenever the agency is required to publish a notice of proposed rulemaking. However, a federal agency may certify, pursuant to 5 U.S.C. 605(b), that the action will not have a significant economic impact on a substantial number of small entities. The proposed regulations are for the particular and limited purpose of NTIA examining only whether the proposed fees of another federal entity--FirstNet--are, in aggregate and in combination with any FirstNet non-fee-based income, sufficient, but not in excess of, the projected funds that FirstNet needs to recoup the total expenses required to carry out its statutory obligations in a given year. No external entities, including any small businesses, small organizations, or small governments, will experience any direct economic impacts from this proposed rule. The only potential effect on any external entities, large or small, would likely be positive, as NTIA's proposed rules will assist in ensuring that FirstNet, as required under the Act, will sustain a nationwide public safety broadband network that provides broadband communications to first responders. Because this action, if adopted, would directly affect only federal entities--NTIA and FirstNet--and not any small entities, the Department of Commerce has concluded that the action would not result in a significant economic impact on a substantial number of small entities. Thus, the Department of Commerce Chief Counsel for Regulations has certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule will not have a significant impact on a substantial number of small entities. Therefore, an initial regulatory flexibility analysis is not required and has not been prepared. Executive Order 13132 It has been determined that this document does not contain policies with Federalism implications as that term is defined in Executive Order 13132. List of Subjects in 47 CFR Part 500 FirstNet, FirstNet Fees, Safety, Telecommunications. Dated: December 10, 2015. Lawrence E. Strickling, Assistant Secretary for Communications and Information. For the reasons set out in the preamble, the National Telecommunications and Information Administration proposes to add 47 CFR Chapter V to read as follows: CHAPTER V--THE FIRST RESPONDER NETWORK AUTHORITY (Parts 500-599) SUBCHAPTER A--NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION REGULATIONS (Parts 500-549) PART 500--REVIEW AND APPROVAL OF FEES PROPOSED BY THE FIRST RESPONDER NETWORK AUTHORITY (FIRSTNET) Sec. 500.1 Purpose and scope. 500.2 General definitions. 500.3 NTIA duty to review FirstNet proposed fees. 500.4 Scope of NTIA review of FirstNet proposed fees. 500.5 Methodology of NTIA fee review and approval process. Authority: 47 U.S.C. 1401. Sec. 500.1 Purpose and scope. Sections 500.2 through 500.5 implement 47 U.S.C. 1428(c) as codified pursuant to 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''), which requires the National Telecommunications and Information Administration to annually review fees the First Responder Network Authority (FirstNet) proposes to assess. Sec. 500.2 General definitions. Fee means FirstNet's receipt of money from: (1) A Network User Fee; (2) Lease Fees Related To Network Capacity; or (3) Lease Fees Related To Network Equipment And Infrastructure, as those terms are defined under 47 U.S.C. 1428(a). FirstNet means the First Responder Network Authority. Fiscal Year means the 12-month accounting period for the federal government, which begins on 1 October of a given year and ends on 30 September of the subsequent year. Non-fee-based income received by FirstNet means FirstNet's receipt of money from any source, transaction, entity, or any other means allowed under 47 U.S.C. 1401 et seq., other than those receipts described above in the definition of ``fee.'' NTIA means the National Telecommunications and Information Administration. NTIA's fee review and approval process means the process by which NTIA executes its duties under 47 U.S.C. 1428(c). Sec. 500.3 NTIA's duty to review FirstNet proposed fees. As required under 47 U.S.C. 1428(c), NTIA shall exclusively review fees, which must be proposed by FirstNet in writing, through NTIA's review and approval process conducted on an annual basis. Sec. 500.4 Scope of NTIA review of FirstNet proposed fees. NTIA shall approve FirstNet proposed fees only if such fees, when combined with any non-fee-based income projected to be received by FirstNet, are sufficient, but do not exceed the amount necessary, to recoup FirstNet's total expenses in carrying out its duties and responsibilities under 47 U.S.C. 1401 et seq. for the fiscal year involved. Sec. 500.5 Methodology of NTIA fee review and approval process. (a) Fee review approach. To execute NTIA's fee review and approval process, NTIA shall utilize FirstNet's standard financial documentation, which may include but is not limited to: [[Page 77598]] (1) FirstNet's budget documents produced in the normal course of its business; (2) FirstNet's financial statements produced in the normal course of its business; (3) FirstNet's annual budget reports submitted as part of the President's Budget; and (4) FirstNet's annual report to Congress. (b) Deference to FirstNet on necessary reserves. In executing NTIA's fee review and approval process, NTIA shall defer to FirstNet with respect to its use and retention of reserve or working capital funds. NTIA shall consider any such designated funds to be a part of FirstNet's total expenses in carrying out its duties and responsibilities under 47 U.S.C. 1401 et seq. for the fiscal year involved. (c) Determination of fee review: NTIA shall make one of the following determinations annually upon review of FirstNet's proposed fees: (1) FirstNet's proposed fees, in aggregate, when combined with any projected non-fee-based income to be received by FirstNet, meet but do not exceed FirstNet's projected total expenses; (2) FirstNet's proposed fees, in aggregate, when combined with any projected non-fee-based income to be received by FirstNet, do not meet FirstNet's projected total expenses; or (3) FirstNet's proposed fees, in aggregate, when combined with any projected non-fee-based income to be received by FirstNet, exceed FirstNet's projected total expenses. Upon making any of these determinations, NTIA will communicate its determination in writing to FirstNet. (d) Outcome of determination of fee review: (1) Should NTIA make the determination listed in paragraph (c)(1) of this section, FirstNet may assess the proposed fees. (2) Should NTIA make one of the determinations listed in paragraph (c)(2) or (3) of this section, NTIA will disapprove FirstNet's proposed fees, and FirstNet may not assess those proposed fees. (e) Revision of Proposed Fees: Upon a disapproval of FirstNet's proposed fees as described in paragraph (d)(2) of this section, or upon FirstNet's determination that it must revise NTIA-approved fees to ensure compliance with 47 U.S.C. 1428(b), FirstNet shall prepare a revised written submission to NTIA, which shall evaluate any proposed fees therein consistent with the rules in Sec. Sec. 500.1-500.5. (f) Communication of NTIA fee approval or disapproval. Approval or disapproval of FirstNet-proposed fees shall be communicated in writing by the Assistant Secretary for Communications and Information and Administrator, National Telecommunications and Information Administration, U.S. Department of Commerce, to the Chair of the FirstNet Board. Subchapter B--[Reserved] [FR Doc. 2015-31516 Filed 12-14-15; 8:45 am] BILLING CODE 3510-60-P
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EPA has already completed the first Group 1, and SO2 Group 2 allowances (or ultimately for allocation to existing
round of allocations of 2015 NUSA to eligible new units from each NUSA units).
allowances for all four CSAPR trading are calculated according to the Objections should be strictly limited
programs, as well as the second round procedures set forth in §§ 97.412(a)(9), to whether EPA has correctly identified
of 2015 NUSA allocations to units (10) and (12), 97.612(a)(9), (10), and the new units eligible for second-round
subject to the CSAPR Ozone Season (12), and 97.712(a)(9), (10), and (12), 2015 NUSA allocations of CSAPR NOX
Trading Program, as announced in respectively. Generally, the procedures Annual, SO2 Group 1, and SO2 Group 2
notices previously published in the call for each eligible unit to receive a allowances according to the criteria
Federal Register.3 The first and second- second-round 2015 NUSA allocation described above and should be emailed
round NUSA allocation process was equal to the positive difference, if any, to the address identified in ADDRESSES.
discussed in those previous notices. between its emissions during the 2015 Objections must include: (1) Precise
This notice of availability concerns the annual control periods (i.e., January 1, identification of the specific data the
second round of NUSA allowance 2015 through December 31, 2015) as commenter believes are inaccurate, (2)
allocations for the CSAPR NOX Annual, reported under 40 CFR part 75 and any new proposed data upon which the
SO2 Group 1, and SO2 Group 2 Trading first-round allocation the unit received, commenter believes EPA should rely
Programs for the 2015 control period.4 unless the total of such allocations to all instead, and (3) the reasons why EPA
The units eligible to receive second- eligible units would exceed the amount should rely on the commenter’s
round NUSA allocations for the CSAPR of allowances in the NUSA, in which proposed data and not the data
NOX Annual, SO2 Group 1, and SO2 case the allocations are reduced on a referenced in this notice of availability.
Group 2 Trading Programs are defined pro-rata basis.
Authority: 40 CFR 97.411(b), 97.611(b),
in §§ 97.411(b)(1)(iii) and 97.412(a)(9)(i), Any allowances remaining in the
and 97.711(b).
97.611(b)(1)(iii) and 97.612(a)(9)(i), and CSAPR NOX Annual, SO2 Group 1, or
97.711(b)(1)(iii) and 97.712(a)(9)(i), SO2 Group 2 NUSA for a given state and Dated: December 7, 2015.
respectively. Generally, eligible units control period after the second round of Reid P. Harvey,
include any CSAPR-affected unit that NUSA allocations to new units will be Director, Clean Air Markets Division, Office
commenced commercial operation allocated to the existing units in the of Atmospheric Programs, Office of Air and
between January 1 of the year before the state according to the procedures set Radiation.
control period in question and forth in §§ 97.412(a)(10) and (12), [FR Doc. 2015–31461 Filed 12–14–15; 8:45 am]
November 30 of the year of the control 97.612(a)(10) and (12), and 97.712(a)(10) BILLING CODE 6560–50–P
period in question. In the case of the and (12), respectively.
2015 control period, an eligible unit EPA notes that an allocation or lack
therefore must have commenced of allocation of allowances to a given DEPARTMENT OF COMMERCE
commercial operation between January EGU does not constitute a determination
1, 2014 and November 30, 2015 that CSAPR does or does not apply to National Telecommunications and
(inclusive). the EGU. EPA also notes that allocations Information Administration
The total quantity of allowances to be are subject to potential correction if a
allocated through the 2015 NUSA unit to which NUSA allowances have 47 CFR Chapter V
allowance allocation process for each been allocated for a given control period
[Docket Number: 151209999–5999–01]
state and emissions trading program—in is not actually an affected unit as of the
the two rounds of the allocation process start of that control period.6 RIN 0660–AA30
combined—is generally the state’s 2015 The preliminary lists of units eligible
emissions budget less the sum of (1) the for second-round 2015 NUSA allowance Proposed Scope of NTIA’s Authority
total of the 2015 CSAPR FIP allowance allocations for the three CSAPR annual Regarding FirstNet Fees
allocations to existing units and (2) the trading programs are set forth in Excel
AGENCY: National Telecommunications
amount of the 2015 Indian country spreadsheets titled ‘‘CSAPR_NUSA_
and Information Administration, U.S.
NUSA, if any.5 The amounts of CSAPR 2015_NOx_Annual_2nd_Round_
Department of Commerce.
NOX Annual, SO2 Group 1, and SO2 Prelim_Data,’’ ‘‘CSAPR_NUSA_2015_
Group 2 NUSA allowances may be SO2_Group_1_2nd_Round_Prelim_ ACTION: Notice of proposed rulemaking.
increased in certain circumstances as set Data,’’ and ‘‘CSAPR_NUSA_2015_SO2_
SUMMARY: The National
forth in §§ 97.412(a)(2), 97.612(a)(2), Group_2_2nd_Round_Prelim_Data’’
Telecommunications and Information
and 97.712(a)(2), respectively. available on EPA’s Web site at http://
Administration (NTIA) publishes this
Second-round NUSA allocations for a www.epa.gov/crossstaterule/
notice of proposed rulemaking to
given state, trading program, and control actions.html. Each spreadsheet contains
request public comment as it develops
period are made only if the NUSA a separate worksheet for each state
rules related to its review and approval
contains allowances after completion of covered by that program showing each
of fees imposed by the First Responder
the first-round allocations. unit preliminarily identified as eligible
The amounts of second-round Network Authority (FirstNet) as
for a second-round NUSA allocation.
allocations of CSAPR NOX Annual, SO2 Each state worksheet also contains a authorized by the Middle Class Tax
summary showing (1) the quantity of Relief and Job Creation Act of 2012 (the
3 80 FR 30988 (June 1, 2015); 80 FR 44882 (July
allowances initially available in that Act).
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
28, 2015); 80 FR 55061 (September 14, 2015); 80 FR state’s 2015 NUSA, (2) the sum of the DATES: Submit comments on or before
69883 (November 12, 2015). January 14, 2016.
4 At this time, EPA is not aware of any unit
2015 NUSA allowance allocations that
eligible for a second-round allocation from any were made in the first-round to new ADDRESSES: The public is invited to
Indian country NUSA. units in that state (if any), and (3) the submit written comments to this
5 The quantities of allowances to be allocated
quantity of allowances in the 2015 proposed rule. Written comments may
through the NUSA allowance allocation process NUSA available for distribution in be submitted electronically through
may differ slightly from the NUSA amounts set
forth in §§ 97.410(a), 97.510(a), 97.610(a), and second-round allocations to new units www.regulations.gov or by mail (to
97.710(a) because of rounding in the spreadsheet of Office of Public Safety Communications;
CSAPR FIP allowance allocations to existing units. 6 See 40 CFR 97.411(c), 97.611(c), and 97.711(c). National Telecommunications and
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In Section V, NTIA discusses the fees FirstNet’s authority to operate as a result in FirstNet’s collection of income
that NTIA has specific jurisdiction to business can and should further its that does not fall within the fees
review; if, in its review of aggregate ability to meet the Act’s mandate that it specified in Section 6208(a).13
revenues and costs, it determines that become a self-sustaining enterprise.
B. FirstNet’s Finances are Subject to
FirstNet has not satisfied the legal Section 6208 of the Act makes clear that
Broader, Independent Review
standard, FirstNet must adjust its fees or FirstNet must establish permanent self-
otherwise make budgetary changes to funding and is authorized to collect fees NTIA’s approach in this proposed
ensure that the standard is met. for specified uses of the Network or its rule reflects the scope of its fees review
Specifically, NTIA proposes to define components in furtherance of that authority in the context of other
the term ‘‘fee,’’ for purposes of its obligation. supervision of FirstNet’s finances and
statutory obligations under Section The Act established specific operations, which taken together, ensure
6208(c) of the Act, to mean FirstNet’s parameters for FirstNet’s fee a high degree of oversight over
direct collection of money that is assessments described in Section FirstNet’s finances under the Act. The
generated from the three categories 6208(a) to drive sustainability and Act sets forth multiple methods of
established in Section 6208(a) of the continual reinvestment of FirstNet oversight of FirstNet well beyond the
Act: (1) Network user fees; (2) lease fees revenues into the Network. Section limited review and approval of fees
pursuant to a covered leasing agreement 6208(b), entitled, ‘‘Establishment of Fee required of NTIA under Section 6208(c).
(CLA); and (3) fees from entities seeking Amounts; Permanent Self-Funding,’’ For example, FirstNet is subject to an
access to or use of any network requires that the total amount of the fees independent financial audit. Section
equipment or infrastructure constructed assessed under Section 6208(c) for each 6209 of the Act requires that the
or otherwise owned by FirstNet.5 Under fiscal year shall be sufficient, but cannot Secretary of Commerce engage an
this proposed rule, NTIA can direct exceed, the amount necessary to recoup independent auditor to conduct an
FirstNet to address only those proposed the total expenses of FirstNet as it annual audit of all of FirstNet’s
fees that fall into one of these three carries out its duties under the Act.9 commercial corporate transactions
categories. Further, NTIA proposes that Moreover, FirstNet must reinvest which the auditor will submit to
it will not evaluate the reasonableness, amounts received from the assessment Congress, the President, and FirstNet.14
or similar subjective attributes, of the of fees under Section 6208 for In addition, the Act requires an annual,
specific fees assessed by FirstNet or its constructing, maintaining, operating, or ‘‘comprehensive and detailed report of
prospective partner or partners as improving the Network.10 Specific to the operations, activities, financial
contemplated in the Act. Specific NTIA FirstNet’s authority to assess and collect condition, and accomplishments of
rules are proposed in new 47 CFR these fees, Section 6208(c) requires that [FirstNet],’’ to be submitted to Congress
Chapter V; Subchapter A will be NTIA review such fees ‘‘on an annual along with ‘‘recommendations or
utilized for NTIA rules that relate to basis, and such fees may only be proposals for legislative or
FirstNet, and Subchapter B will be assessed if approved by . . . NTIA.’’ 11 administrative action as [FirstNet]
Additionally, the Act makes clear that deems appropriate.’’ 15 Furthermore,
reserved for rules promulgated by
FirstNet should consider public-private FirstNet must comply on a day-to-day
FirstNet itself.
We seek comment on these partnerships, affording it additional basis with all other applicable federal
preliminary proposals. We also look authority to creatively support the financial laws and regulations. In light
forward to FirstNet’s progress in its provision of a self-funded broadband of these broader oversight provisions,
procurement process, which may network for use by public safety NTIA’s narrow scoping of its fee review
entities.12 Such partnerships might authority is appropriate.
provide additional information relevant
to NTIA’s duties under Section 6208(c). III. NTIA’s Annual Fee Review Focuses
fiduciary and operational functions assigned to
With such information from boards of corporations. See 47 U.S.C. 1424(b). on Whether FirstNet Fees and Other
stakeholders and FirstNet, NTIA will be Furthermore, Board members appointed by the Income, in Aggregate, Are Sufficient,
better informed to solidify the scope of Secretary of Commerce must include individuals
and Do Not Exceed the Amount
with various types of business experience,
its fee review and approval process as including expertise in building, deploying, and Necessary, To Recoup FirstNet’s Total
appropriate. operating commercial telecommunications Expenses
networks, and in financing and funding
II. Background: Relevant Statutory telecommunications networks. See id. FirstNet may A. Standard of NTIA Fee Review and
Provisions only act as authorized by the Board to execute any Approval
powers granted by the Act to FirstNet, spend funds,
A. FirstNet-Assessed Fees Must Ensure or take other actions deemed necessary, The Act does not provide a specific
Self-Funding and Be Approved by NTIA appropriate, or advisable to accomplish the standard of review for NTIA’s annual
purposes of the Act. See 47 U.S.C. 1426(a)(1); see
The Act established FirstNet as an also 47 U.S.C. 1426(a)(5). As a business enterprise,
fee review and approval process under
independent authority within NTIA.6 FirstNet may contract with individuals; private Section 6208(c).16 However,
The Act authorizes FirstNet to take all companies; organizations; institutions; and Federal, examination of other provisions in
State, regional, and local agencies. See 47 U.S.C. Section 6208 and the Act at large inform
actions necessary to ensure the building, 1426(a)(3). The Act allows FirstNet to engage in
deployment, and operation of the other business activities, including selecting agents,
NTIA’s proposed approach to FirstNet
Network.7 To achieve this significant consultants, or experts and hiring a program
and unprecedented task, FirstNet must manager to carry out key aspects of deploying the existing commercial mobile providers to utilize
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
NPSBN. See 47 U.S.C. 1425(b). cost- effective opportunities to speed deployment in
operate in many respects as a private 9 See 47 U.S.C. 1428(b). rural areas’’).
sector business enterprise.8 10 See 47 U.S.C. 1428(d). 13 See, e.g., § 1426(a)(3) (referencing ‘‘grants and
11 47 U.S.C. 1428(c). funds from . . . individuals, private companies,
5 See 47 U.S.C. 1428(a). organizations, institutions, and Federal, State,
12 See, e.g., 47 U.S.C. 1428(a) (describing public-
6 See 47 U.S.C. 1424(a). private arrangements to construct, manage, and regional, and local agencies’’); § 1426(a)(4)
7 See 47 U.S.C. 1426(b).
operate the nationwide public safety broadband (referencing ‘‘gifts, donations, and bequests of
8 To that end, the Act set forth several key network between FirstNet and a secondary user); property, both real and personal’’).
14 See 47 U.S.C. 1429.
provisions establishing FirstNet as a business see also 47 U.S.C. 1426(b)(3) (requiring that FirstNet
15 47 U.S.C. 1430.
enterprise. For example, the Act requires the requests for proposals, to the maximum extent
creation of the FirstNet Board, which has the economically feasible, ‘‘include partnerships with 16 See 47 U.S.C. 1428(c).
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fee review. FirstNet has a duty under assessed fees drive a self-funded IV. Methodology of NTIA Fee Review
Section 6208(b) to ensure that, during a network. and Approval Process
given fiscal year, the fees it assesses are A review of other provisions of Title A. Focus of NTIA Fee Review
sufficient, and shall not exceed the 47 demonstrates that when Congress Methodology
amount necessary, to recoup the ‘‘total intends for rates to be subject to a
expenses’’ associated with carrying out Based on the preliminary conclusions
review for ‘‘reasonableness’’ or other above, NTIA proposes to base its
its duties as specified under the Act.17
subjective standards, it states this approval of fees upon a determination of
Given this overarching directive in
intention explicitly. For example, whether the proposed fees, in aggregate,
Section 6208(b), which immediately
precedes the Act’s assignation of fee Section 201 of the Communications Act when combined with any projected non-
review to NTIA in Section 6208(c), directs the Federal Communications fee-based income that FirstNet receives,
NTIA proposes that the Act’s purpose Commission (FCC) to determine meet but do not exceed FirstNet’s
for the fee review is solely to support whether the charges of anticipated total expenses associated
FirstNet’s obligation under Section telecommunications carriers are ‘‘just with carrying out its duties as specified
6208(b) to be self-funding. Thus, NTIA and reasonable.’’ 21 Similarly, Section under the Act in a given year. As
intends to base its decisions on 224 of the Communications Act directs required by the Act, NTIA will conduct
FirstNet’s proposed fees by only the FCC to regulate the rates, terms, and its fee review and approval process on
examining whether the fees are, in conditions of pole attachments to ensure an annual basis. Further, NTIA’s
aggregate and combined with other non- they are ‘‘just and reasonable.’’ 22 Here, proposed fee review and approval
fee-based income, sufficient, but not in with respect to FirstNet’s assessment of process will occur before a fee is
excess, of the projected funds FirstNet fees under Section 6208, and NTIA’s assessed as required by the Act, and
needs to carry out its statutory review and approval of such fees, the NTIA expects that FirstNet will propose
obligations in a given fiscal year. In this such fees to NTIA in writing. Because
Act established no such ‘‘just and
way, NTIA’s review and approval of FirstNet must compete in a broader
reasonable’’ standard. marketplace for the opportunity to
FirstNet-proposed fees under Section Moreover, a reasonableness review of
6208 will exclusively focus on provide broadband service to public
FirstNet fees is unnecessary as a matter safety entities, it will need the flexibility
FirstNet’s projected income and
of policy. The Act does not mandate or over the course of a fiscal year to adjust
expenses to further the self-funding
require any public safety entity to specific fees it wishes to assess pursuant
requirements and limitations of Section
purchase services from FirstNet. to Section 6208(a).
6208(b). We seek comment on this Thus, to empower FirstNet with the
proposed approach. FirstNet must compete for subscribers
by offering a compelling value flexibility needed to compete in the
B. NTIA’s Fee Review and Approval proposition to prospective public safety marketplace, NTIA proposes that, as
Process Does Not Assess the customers. Public safety users part of its annual fee review, it will also
Reasonableness of a Proposed Fee themselves will determine whether review FirstNet’s actual fees and
expenses from the previous four fiscal
The scope of review of a fee is FirstNet’s proposed user fees are
quarters. This process will afford
established by the statute.18 As a result, reasonable in comparison to the fees
FirstNet the opportunity to describe any
we propose that NTIA’s fee review is they are offered by competing providers. significant discrepancies between
scoped to self-sustainability and does Thus, NTIA proposes that it will not projected and actual expenses and
not include review of the assess whether individual or total fees revenue of that previous fiscal year and
reasonableness of any fee assessed by in any given category described in detail how its projected fees and
FirstNet or its prospective partner or Section 6208(a) are reasonable, revenues for the upcoming fiscal year
partners as contemplated in the Act. have addressed these discrepancies. In
proportionate, or otherwise subjectively
The wording of the Act itself does not doing so, FirstNet will have an
appropriate in light of individual or
direct NTIA to perform a reasonableness opportunity on an annual basis to
total fees in that category, or any other
review. Section 6208(b), entitled, ensure that its duty under Section
‘‘Establishment Of Fee Amounts; category of fees listed in Section
6208(a). With the proposed scope of its 6208(b) is met. To determine FirstNet’s
Permanent Self-Funding,’’ requires that anticipated expenses, among the
the total amount of the fees assessed by fee review, NTIA meets the intent of the
self-funding provisions, but does not specific costs areas that NTIA may
FirstNet for each fiscal year must be consider are: (1) Salaries and Benefits;
sufficient, but cannot exceed, the import ‘‘just and reasonable’’ review
(2) Travel; (3) Services: Federal Sources;
amount necessary to recoup the total parameters that Congress clearly could
(4) Services: Non-Federal Sources; (5)
expenses of FirstNet as it carries out its have, but did not, include in the statute.
Facilities Rental; (6) Supplies, Materials,
duties under the Act.19 NTIA’s mandate We seek comment on these preliminary and Printing; (7) Equipment; and (8)
to review and approve FirstNet fees proposals. Other expenses or obligations incurred
directly follows this fee structure for future contract award, capital
requirement in Section 6208(c).20 The 21 See 47 U.S.C 201 (stating that, for common
reserves, or other permitted expenses or
Act provides no other direction carrier services, ‘‘[a]ll charges . . . for and in
connection with such communication service, shall
obligations. NTIA anticipates deferring
regarding fee review, but the structure of to FirstNet to determine the
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
be just and reasonable, and any such charge,
the statute clearly indicates practice, classification, or regulation that is unjust reasonableness of projected obligations
congressional intent to ensure that the or unreasonable is hereby declared to be in the aforementioned or other
unlawful.’’). categories.
17 See 47 U.S.C. 1428(b). 22 See 47 U.S.C 224 (b)(1) (stating that ‘‘the
Throughout the fee review and
18 See Principles of Federal Appropriations Law, Commission shall regulate the rates, terms, and approval process, NTIA anticipates
Volume III, Third Edition, GAO, pp 12–140–12– conditions for pole attachments to provide that
181. GAO 08–978 SP (Washington, DC, September such rates, terms, and conditions are just and
utilizing the budget documents and
2008). reasonable, and shall adopt procedures necessary financial statements produced in the
19 See 47 U.S.C. 1428(b).
and appropriate to hear and resolve complaints normal course of FirstNet’s business.
20 See 47 U.S.C. 1428(c). concerning such rates, terms, and conditions.’’) NTIA might also utilize FirstNet’s
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annual budget reports as approved by FirstNet’s total expenses. In doing so, Section 6208(c) is FirstNet’s collection
the FirstNet Board and submitted as part NTIA will deem such funds to be a part of money that falls within the three
of the President’s Budget and FirstNet’s of FirstNet’s projected total expenses categories in Section 6208(a): (1)
mandated annual report to Congress. under Section 6208(b) of the Act. We Network user fees; (2) lease fees related
Therefore, NTIA proposes that it will seek comment on this proposal. to network capacity, pursuant to a
make, on an annual basis, one of three covered leasing agreement; and (3) fees
determinations with regard to proposed V. FirstNet-Proposed Fees Subject to
from entities seeking access to or use of
fees: (1) FirstNet’s proposed fees, in NTIA Review Under Section 6208 Must
any equipment or infrastructure
aggregate, when combined with any Be Addressed Upon NTIA Disapproval
constructed or otherwise owned by
projected non-fee-based income to be A. Fees Subject to NTIA Review and FirstNet.26 Given the clear language in
received by FirstNet, meet but do not FirstNet Reconsideration Upon NTIA Section 6208(a) defining the fees that
exceed FirstNet’s projected total Disapproval FirstNet may assess, and the
expenses; (2) FirstNet’s proposed fees, The Act assigns a clear duty to NTIA corresponding language in Section
in aggregate, when combined with any under Section 6208: approve or 6208(c) directing NTIA to review fees
projected non-fee-based income to be disapprove the specific fees FirstNet ‘‘assessed under [Section 6208],’’ NTIA
received by FirstNet, do not meet aspires to assess under Section 6208. proposes that its fee review authority,
FirstNet’s projected total expenses; or Under Section 6208(a) of the Act, and FirstNet’s obligation to address fees
(3) FirstNet’s proposed fees, in FirstNet is authorized to assess and upon NTIA disapproval of proposed
aggregate, when combined with any collect the following fees: fees, is scoped to the three above-
projected non-fee-based income to be referenced categories. We seek comment
received by FirstNet, exceed FirstNet’s 1. A Network User Fee: ‘‘A user or on this preliminary proposal.
subscription fee from each entity, including
projected total expenses. Upon making
any public safety entity or secondary user, B. Income Other Than Fees Is Not
any of these determinations, NTIA will that seeks access to or use of the
communicate its determination in Subject to NTIA Fee Review
[Network].’’ 23
writing to FirstNet. Should NTIA make 2. Fees Pursuant to a Covered Leasing As noted above, NTIA recognizes that,
the second or third determination listed Agreement: ‘‘A fee from any entity that seeks under the Act, FirstNet may receive
above, NTIA will not approve FirstNet’s to enter into a [CLA].’’ 24 income that is separate and distinct
proposed fees, and FirstNet may not 3. Lease Fees Related to Network from the fees defined in Section 6208(a).
assess them. NTIA proposes that it will Equipment and Infrastructure: ‘‘A fee from Such income must be factored into
any entity that seeks access to or use of any NTIA’s determination of whether
accept any revised proposed fees or
equipment or infrastructure, including
FirstNet approved revised budgets when proposed fees, in aggregate, will meet
antennas or towers, constructed or otherwise
provided by FirstNet in writing and owned by the First Responder Network but not exceed the funds needed by
evaluate them consistent with the scope Authority resulting from a public-private FirstNet on an annual basis. However,
and methodology proposed above. arrangement to construct, manage, and as the Act limits NTIA’s review and
We seek comment on this proposed operate the [Network]’’ 25 approval authority to ‘‘the fees assessed
approach to NTIA’s fee review and As a threshold matter for purposes of in [Section 6208],’’ NTIA proposes that
approval process. We also seek this proposed rule and NTIA’s duty the Act gives it no authority to review
comment on alternative methodologies under Section 6208 of the Act, the word or approve as a ‘‘fee’’ any other form of
that will further our fee review and ‘‘fee,’’ as used in Section 6208(c) of the income FirstNet might receive. NTIA
approval process consistent with the Act, must be defined. By defining the proposes that non-fee-based income,
Act’s directives. fees NTIA is to review, NTIA identifies emanating from arrangements allowed
the specific fees FirstNet must address by statute, is not a ‘‘fee’’ under Section
B. NTIA’s Fee Review and Approval
prior to NTIA approval in the event 6208(a). Furthermore, NTIA proposes
Process Defers to FirstNet on Necessary
NTIA must disapprove FirstNet- that it will consider any non-fee income
Reserves
approved fees under the standards set only as part of its determination of
NTIA proposes that it should defer to whether such income, when combined
forth above.
FirstNet, in the context of its budgetary To implement its fee review in aggregate with the fees defined in
planning process, regarding the use and obligations under the Act, NTIA must Section 6208(a), will be sufficient to
retention of reserves or working capital determine the meaning of the term ‘‘fee’’ recoup FirstNet’s total expenses, but not
funds. By doing so, NTIA will not, in its as used in Section 6208. In the case of exceed the amount necessary, to carry
fee review and approval process, assess the Act, the three sets of fees, which out its statutory duties and
whether or what level of funds FirstNet FirstNet may assess, and which NTIA responsibilities for the fiscal year
should maintain in reserves, capital must review if assessed, are clearly involved. Moreover, NTIA proposes that
accounts, or other funding categories. defined within Section 6208(a). Thus, it will not analyze the terms and
FirstNet’s routine budget, auditing, and NTIA proposes that a ‘‘fee’’ that will be conditions of any CLA, or any other
accounting processes will presumably subject to its review and approval under agreement between FirstNet and another
determine the need for such capital entity, beyond those specific terms and
reserve funds. NTIA plans to defer to 23 47 U.S.C. 1428(a)(1). conditions which establish any fees that
FirstNet’s determination of need for 24 47 U.S.C. 1428(a)(2)(A); See also 47 U.S.C. meet the three categories described in
such funds through these processes. We
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
1428(a)(2)(B) (stating that the Act defines a CLA as Section 6208(a). We seek comment on
seek comment on this proposed ‘‘a written agreement resulting from a public-private
arrangement to construct, manage, and operate the
these preliminary proposals.
approach to NTIA’s fee review and nationwide public safety broadband network
approval process. VI. Ex Parte Communications
between the First Responder Network Authority
Moreover, NTIA proposes that, in its and secondary user to permit—(i) access to network Any non-public oral presentation to
fee review and approval process, it will capacity on a secondary basis for non-public safety NTIA regarding the substance of this
take into consideration reserve funds at services; and (ii) the spectrum allocated to such
entity to be used for commercial transmissions
proposed rule will be considered an ex
the levels designated in FirstNet’s along the dark fiber of the long-haul network of parte presentation, and the substance of
budget, to determine whether FirstNet’s such entity.’’).
proposed fees meet but not exceed 25 47 U.S.C. 1428(a)(3). 26 See 47 U.S.C. 1428(a).
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![77598 Federal Register / Vol. 80, No. 240 / Tuesday, December 15, 2015 / Proposed Rules
(1) FirstNet’s budget documents (f) Communication of NTIA fee FWS–R5–ES–2015–0015. Documents
produced in the normal course of its approval or disapproval. Approval or may also be obtained by mail from the
business; disapproval of FirstNet-proposed fees Northeast Regional Office (see FOR
(2) FirstNet’s financial statements shall be communicated in writing by the FURTHER INFORMATION CONTACT).
produced in the normal course of its Assistant Secretary for Communications Written comments: You may submit
business; and Information and Administrator, written comments by one of the
(3) FirstNet’s annual budget reports National Telecommunications and following methods:
submitted as part of the President’s Information Administration, U.S. (1) Electronically: Go to the Federal
Budget; and Department of Commerce, to the Chair eRulemaking Portal: http://
(4) FirstNet’s annual report to of the FirstNet Board. www.regulations.gov. In the Search box,
Congress. Subchapter B—[Reserved]
enter FWS–R5–ES–2015–0015, which is
(b) Deference to FirstNet on necessary the docket number for this rulemaking.
[FR Doc. 2015–31516 Filed 12–14–15; 8:45 am]
reserves. In executing NTIA’s fee review Then, in the Search panel on the left
BILLING CODE 3510–60–P side of the screen, under the Document
and approval process, NTIA shall defer
to FirstNet with respect to its use and Type heading, click on the Proposed
retention of reserve or working capital Rules link to locate the document. You
funds. NTIA shall consider any such DEPARTMENT OF THE INTERIOR may submit a comment by clicking on
designated funds to be a part of ‘‘Comment Now!’’
Fish and Wildlife Service (2) By hard copy: Submit by U.S. mail
FirstNet’s total expenses in carrying out
its duties and responsibilities under 47 or hand delivery to: Public Comments
50 CFR Part 17 Processing, Attn: FWS–R5–ES–2015–
U.S.C. 1401 et seq. for the fiscal year
involved. [Docket No. FWS–R5–ES–2015–0015; 0015, U.S. Fish and Wildlife Service,
(c) Determination of fee review: NTIA 4500030113] MS: BPHC, 5275 Leesburg Pike, Falls
shall make one of the following RIN 1018–BA85
Church, VA 22041–3803.
determinations annually upon review of We request that you send comments
FirstNet’s proposed fees: Endangered and Threatened Wildlife only by the methods described above.
(1) FirstNet’s proposed fees, in and Plants; Endangered Species We will post all comments on http://
aggregate, when combined with any Status for the Big Sandy Crayfish and www.regulations.gov. This generally
projected non-fee-based income to be the Guyandotte River Crayfish means that we will post any personal
received by FirstNet, meet but do not information you provide us (see the
exceed FirstNet’s projected total AGENCY: Fish and Wildlife Service, Public Comments section, below, for
expenses; Interior. more information).
(2) FirstNet’s proposed fees, in ACTION: Proposed rule; reopening of FOR FURTHER INFORMATION CONTACT:
aggregate, when combined with any comment period. Martin Miller, Chief, Endangered
projected non-fee-based income to be Species, U.S. Fish and Wildlife Service,
SUMMARY: We, the U.S. Fish and
received by FirstNet, do not meet Northeast Regional Office, 300 Westgate
Wildlife Service (Service), announce the
FirstNet’s projected total expenses; or Center Drive, Hadley, MA 01035;
reopening of the public comment period
(3) FirstNet’s proposed fees, in telephone 413–253–8615; or facsimile
on our April 7, 2015, proposed rule to
aggregate, when combined with any 413–253–8482. Persons who use a
list the Big Sandy crayfish (Cambarus
projected non-fee-based income to be telecommunications device for the deaf
callainus) and the Guyandotte River
received by FirstNet, exceed FirstNet’s (TDD) may call the Federal Information
crayfish (C. veteranus) as endangered
projected total expenses. Upon making Relay Service (FIRS) at 800–877–8339.
species under the Endangered Species
any of these determinations, NTIA will SUPPLEMENTARY INFORMATION:
Act of 1973, as amended. We are taking
communicate its determination in
this action to make the results of the Background
writing to FirstNet.
2015 summer surveys available for
(d) Outcome of determination of fee In our April 7, 2015, proposed rule
public review and comment. The
review: (80 FR 18710), we proposed to list the
surveys provide updated information on
(1) Should NTIA make the Big Sandy crayfish and the Guyandotte
the two species’ distribution and
determination listed in paragraph (c)(1) River crayfish as endangered species
abundance. Comments previously
of this section, FirstNet may assess the primarily due to the threats of land-
submitted on the April 7, 2015,
proposed fees. disturbing activities that increase
proposed rule need not be resubmitted,
(2) Should NTIA make one of the erosion and sedimentation, which
as they will be fully considered in
determinations listed in paragraph (c)(2) degrade the stream habitat required by
preparation of the final listing
or (3) of this section, NTIA will both species, and the effects of small
determination.
disapprove FirstNet’s proposed fees, population size. During the 60-day
and FirstNet may not assess those DATES: We will consider comments public comment period on the proposed
proposed fees. received or postmarked on or before rule, we received requests to extend the
(e) Revision of Proposed Fees: Upon a January 14, 2016. Comments submitted comment period beyond the June 8,
disapproval of FirstNet’s proposed fees electronically using the Federal 2015, closing date. For rulemaking and
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
as described in paragraph (d)(2) of this eRulemaking Portal (see ADDRESSES financial efficiency, we declined to
section, or upon FirstNet’s section, below) must be received by extend the comment period at that time
determination that it must revise NTIA- 11:59 p.m. Eastern Time on the closing because we were already planning to
approved fees to ensure compliance date. reopen the comment period in the fall
with 47 U.S.C. 1428(b), FirstNet shall ADDRESSES: Document availability: You of 2015 to make available the results of
prepare a revised written submission to may obtain copies of the April 7, 2015, rangewide surveys that would be
NTIA, which shall evaluate any proposed rule and supporting material conducted for each species in the
proposed fees therein consistent with on the Internet at http:// summer of 2015. The final reports for
the rules in §§ 500.1–500.5. www.regulations.gov at Docket No. the 2015 summer surveys are now
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Document Created: 2018-03-02 09:16:29
Document Modified: 2018-03-02 09:16:29
| 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 | Proposed Rules | |
| Action | Notice of proposed rulemaking. | |
| Dates | Submit comments on or before January 14, 2016. | |
| Contact | Patrick Sullivan; Office of Public Safety Communications; National Telecommunications and Information Administration; U.S. Department of Commerce; 1401 Constitution Avenue NW., Washington, DC 20230; [email protected]; (202) 482-5948. | |
| FR Citation | 80 FR 77592 | |
| RIN Number | 0660-AA30 |
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