81 FR 64825 - Procedures for Commission Review of State Opt-Out Requests From the FirstNet Radio Access Network

FEDERAL COMMUNICATIONS COMMISSION

Federal Register Volume 81, Issue 183 (September 21, 2016)

In this document the Commission opens a new proceeding relating to the National Public Safety Broadband Network being implemented by the First Responder Network Authority (FirstNet). The proceeding seeks comment on proposed procedures for administering the Commission's role in the State opt-out process from the FirstNet radio access network as provided under the Middle Class Tax Relief and Job Creation Act of 2012, as well as on the Commission's implementation of the specific statutory standards by which it is obligated to evaluate State opt-out applications.

[Federal Register Volume 81, Number 183 (Wednesday, September 21, 2016)]
[Proposed Rules]
[Pages 64825-64829]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-22714]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 90

[PS Docket No. 16-269, FCC 16-117]


Procedures for Commission Review of State Opt-Out Requests From 
the FirstNet Radio Access Network

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document the Commission opens a new proceeding 
relating to the National Public Safety Broadband Network being 
implemented by the First Responder Network Authority (FirstNet). The 
proceeding seeks comment on proposed procedures for administering the 
Commission's role in the State opt-out process from the

[[Page 64826]]

FirstNet radio access network as provided under the Middle Class Tax 
Relief and Job Creation Act of 2012, as well as on the Commission's 
implementation of the specific statutory standards by which it is 
obligated to evaluate State opt-out applications.

DATES: Comments are due on or before October 21, 2016 and reply 
comments are due on or before November 21, 2016.

ADDRESSES: You may submit comments, identified by PS Docket No. 16-269-
87, by any of the following methods:
     Federal Communications Commission's Web site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Roberto Mussenden, Policy and 
Licensing Division, Public Safety and Homeland Security Bureau, (202) 
418-1428.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
document, PS Docket No. 16-269, FCC 16-117, released on August 25, 
2016. The document is available for download at http://fjallfoss.fcc.gov/edocs_public/. The complete text of this document is 
also available for inspection and copying during normal business hours 
in the FCC Reference Information Center, Portals II, 445 12th Street 
SW., Room CY-A257, Washington, DC 20554. To request materials in 
accessible formats for people with disabilities (Braille, large print, 
electronic files, audio format), send an email to [email protected] or 
call the Consumer & Governmental Affairs Bureau at 202-418-0530 
(voice), 202-418-0432 (TTY).
    1. In the Notice of Proposed Rulemaking (NPRM), the Commission 
opens a new proceeding relating to the National Public Safety Broadband 
Network (NPSBN) being implemented by the First Responder Network 
Authority (FirstNet) pursuant to the provisions of the Middle Class Tax 
Relief and Job Creation Act of 2012 (``Public Safety Spectrum Act'' or 
``Act''). The NPRM seeks comment on proposed procedures for 
administering the Commission's role in the State opt-out process from 
the FirstNet radio access network as provided under the Act, as well as 
on the Commission's implementation of the specific statutory standards 
by which it is obligated to evaluate State opt-out applications.
    2. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 
47 CFR 1.415, 1.419, interested parties may file comments and reply 
comments in PS Docket No. 16-269 on or before the dates indicated on 
the first page of this document. Comments may be filed using the 
Commission's Electronic Comment Filing System (ECFS). See Electronic 
Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. If more than one docket 
or rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number.
    3. Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours 
are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together 
with rubber bands or fasteners. Any envelopes and boxes must be 
disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street SW., Washington, DC 20554.
    4. People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an email to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
    5. Commenters who file information that they believe should be 
withheld from public inspection may request confidential treatment 
pursuant to Sec.  0.459 of the Commission's rules. Commenters should 
file both their original comments for which they request 
confidentiality and redacted comments, along with their request for 
confidential treatment. Commenters should not file proprietary 
information electronically. See Examination of Current Policy 
Concerning the Treatment of Confidential Information Submitted to the 
Commission, Report and Order, 13 FCC Rcd 24816 (1998), Order on 
Reconsideration, 14 FCC Rcd 20128 (1999). Even if the Commission grants 
confidential treatment, information that does not fall within a 
specific exemption pursuant to the Freedom of Information Act (FOIA) 
must be publicly disclosed pursuant to an appropriate request. See 47 
CFR 0.461; 5 U.S.C. 552. We note that the Commission may grant requests 
for confidential treatment either conditionally or unconditionally. As 
such, we note that the Commission has the discretion to release 
information on public interest grounds that does fall within the scope 
of a FOIA exemption.
    6. This proceeding shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules. Persons 
making ex parte presentations must file a copy of any written 
presentation or a memorandum summarizing any oral presentation within 
two business days after the presentation (unless a different deadline 
applicable to the Sunshine period applies). Persons making oral ex 
parte presentations are reminded that memoranda summarizing the 
presentation must (1) list all persons attending or otherwise 
participating in the meeting at which the ex parte presentation was 
made, and (2) summarize all data presented and arguments made during 
the presentation. If the presentation consisted in whole or in part of 
the presentation of data or arguments already reflected in the 
presenter's written comments, memoranda or other filings in the 
proceeding, the presenter may provide citations to such data or 
arguments in his or her prior comments, memoranda, or other filings 
(specifying the relevant page and/or paragraph numbers where such data 
or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with Sec.  1.1206(b). In proceedings governed by 
Sec.  1.49(f) or for which the Commission has made available a method 
of electronic filing, written ex parte presentations and memoranda

[[Page 64827]]

summarizing oral ex parte presentations, and all attachments thereto, 
must be filed through the electronic comment filing system available 
for that proceeding, and must be filed in their native format (e.g., 
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding 
should familiarize themselves with the Commission's ex parte rules.

Procedural Matters

A. Initial Regulatory Flexibility Analysis

    7. The Initial Regulatory Flexibility Analysis required by section 
604 of the Regulatory Flexibility Act, 5 U.S.C. 604, is included in 
appendix C of the NPRM.
    8. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Commission prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on a substantial number of small entities by the policies and rules 
proposed in this Notice of Proposed Rulemaking (NPRM). Written public 
comments are requested on this IRFA. Comments must be filed by the same 
dates as listed on the first page of the NPRM and must have a separate 
and distinct heading designating them as responses to this IRFA. The 
Commission will send a copy of the NPRM, including this IRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration (SBA). 
In addition, the NPRM and IRFA (or summaries thereof) will be published 
in the Federal Register.

B. Need for, and Objectives of, the Proposed Rules

    9. The NPRM seeks comment on proposals to implement provisions of 
the Middle Class Tax Relief and Job Creation Act of 2012 (``Public 
Safety Spectrum Act'' or ``Act'') governing deployment of the 
Nationwide Public Safety Broadband Network (NPSBN) in the 700 MHz band.
    10. The Public Safety Spectrum Act establishes the First Responder 
Network Authority (FirstNet) to oversee the construction and operation 
of the NPSBN as licensee of both the existing public safety broadband 
spectrum (763-769/793-799 MHz) and the spectrally adjacent D Block 
spectrum (758-763/788-793 MHz). The Act directs the Federal 
Communications Commission (FCC or Commission) to reallocate the D Block 
for public safety services, to license the D Block and the existing 
public safety broadband spectrum to FirstNet and to take other actions 
necessary to ``facilitate the transition'' of such existing spectrum to 
FirstNet. The Act gives each State the option to opt out of FirstNet's 
Radio Access Network (RAN) deployment within that State and conduct its 
own RAN deployment.
    11. Proposals in the NPRM are intended to provide States and other 
interested parties with clarity and an opportunity to comment on the 
procedures that the Commission will establish for filing and review of 
State opt-out requests and associated alternative State plans, the 
content to be included in state opt-out filings with the Commission, 
and the evaluation process that the Commission will use to approve or 
disapprove State opt-out requests in accordance with the criteria 
specified in the Act.

C. Legal Basis

    12. The proposed action is authorized under pursuant to sections 1, 
4(i), 4(j), 301, 303, and 316 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 154(i), 154(j), 301, 303, 316, as well as title 
VI of the Middle Class Tax Relief and Job Creation Act of 2012, Public 
Law 112-96, 126 Stat. 156.

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

    13. The RFA directs agencies to provide a description of, and, 
where feasible, an estimate of, the number of small entities that may 
be affected by the rules proposed herein. The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A ``small business concern'' is one which: (1) is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the Small Business 
Administration (``SBA''). Below, we further describe and estimate the 
number of small entity licensees and regulatees that may be affected by 
the rules changes we propose in this document.
    14. As an initial matter, we observe that the Public Safety 
Spectrum Act does not contemplate that ``small governmental 
jurisdictions'' would be directly authorized to serve as operators of 
their own 700 MHz public safety broadband networks. Rather, the Act 
charges a single entity, FirstNet, with constructing, operating, and 
maintaining the NPSBN on a nationwide basis. Accordingly, the 
requirements the NPRM proposes or considers for the combined 700 MHz 
public safety broadband spectrum--in which FirstNet will operate on a 
nationwide basis--will not directly affect a substantial number of 
small entities. The absence of a direct effect on a substantial number 
of small entities suggests that it is not necessary to prepare a 
regulatory flexibility analysis in connection with these proposed 
requirements.

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

    15. The NPRM seeks comment on when State Governors will be required 
to notify FirstNet, NTIA, and the Commission if they wish to opt out of 
the NPSBN. Specifically the NPRM proposes to require States electing to 
opt out of the NPSBN to file a notification with the Commission no 
later than 90 days after the date they receive electronic notice of 
FirstNet's final proposed plan for the State. The NPRM also seeks 
comment how notice should be provided and on whether an entity other 
than a State Governor, such as the Governor's designee should be 
permitted to complete this filing requirement.
    16. The NPRM seeks comment on the Act's provision that States 
choosing to opt out have 180 days to ``develop and complete'' requests 
for proposals (RFPs). In particular, the NPRM seeks comment on what 
showing is sufficient to demonstrate that a State has ``completed'' its 
RFP within the 180-day period. The NPRM further proposes that, if a 
State notifies the Commission of its intention to opt out of the NPSBN, 
the State will have 180 days from the date it provides such 
notification to submit its alternative plan to the Commission. The NPRM 
proposes to treat a State's failure to submit an alternative plan 
within the 180-day period as discontinuing that State's opt out process 
and forfeiting its right to further consideration of its opt-out 
request. The NPRM seeks comment on what an opt-out State should be 
required to include in its alternative plan for the plan to be 
considered complete for purposes of the Commission's review.
    17. The NPRM seeks comment on whether States should be required to 
file their alternative plans in PS Docket No. 16-269, and the scope and 
types of information that must be included in the submission. The NPRM 
also seeks comment on whether States should be allowed to file 
amendments or provide supplemental information to the plan once it is 
filed with the Commission and prior to the Commission's decision. 
Should Commission staff be permitted

[[Page 64828]]

to discuss or seek clarification of the alternative plan contents with 
the filer? If a plan is deemed sufficient for our purposes before a 
State awards a contract pursuant to its RFP, should the Commission 
condition approval on substantial compliance with the approved plan 
under the awarded contract, or should this be addressed by NTIA under 
its ``ongoing'' interoperability evaluation?
    18. The NPRM also seeks comment on who should have access to and 
the ability to comment on State alternative plans. In this regard, the 
NPRM seeks comment on the extent to which State alternative plans may 
contain confidential, competitive, or sensitive information or 
information that implicates national security. Should State plans be 
treated as confidential, with public notice limited to identifying 
which States have elected to opt out and filed an alternative plan? If 
so, should the Commission require such filing, and should the public be 
given an opportunity to comment on them? If State plans were filed 
publicly, would the Commission's existing rules allowing parties to 
request confidential treatment for their filings provide adequate 
protection of sensitive information? Alternatively, given the 
likelihood of sensitive information and the limited scope of the 
Commission's review of State plans under section 6302(e)(3)(C)(i) of 
the Act, should the Commission limit the parties that are entitled to 
review and comment on such plans? Should comment be limited to specific 
issues?
    19. The NPRM also seeks comment on whether FirstNet and/or NTIA 
should be allowed access and the ability to comment to the Commission 
on State plans within a defined comment period. Assuming that FirstNet 
and NTIA are afforded a right to comment on State plans, should States 
have the right to respond to such comments? What rights, if any, should 
States have to review or comment on alternative plans submitted by 
other States? What other procedures are appropriate for the 
Commission's review of such plans? How can the Commission most 
appropriately ensure that it has heard all ``evidence pertinent and 
material to the decision''?
    20. The NPRM proposes that each alternative plan submitted to the 
Commission should receive expeditious review. The NPRM proposes to 
establish a ``shot clock'' for Commission action on alternative plans 
to provide a measure of certainty and expedience to the process. The 
NPRM seeks comment on what an appropriate shot clock period would be.
    21. The NPRM seeks comment on the standard against which 
alternative State plans will be evaluated, specifically with respect to 
the Act's requirements that alternative plans demonstrate: (1) that the 
State will be in compliance with the minimum technical interoperability 
requirements developed under section 6203, and (2) interoperability 
with the nationwide public safety broadband network.
    22. Under the first prong, the NPRM seeks comment on the 
utilization of RAN-related requirements specified in the minimum 
technical interoperability requirements. Specifically, the NPRM 
proposes that review under this prong would include requirements (1)-
(3), (7)-(10), (20)-(25), (29), (39), (41)-(42) from the Board Report, 
as documented in Appendix B of the NPRM.
    23. Under the second prong, the NPRM proposes a broader view than 
the first prong in demonstrating ``interoperability'' with the NPSBN, 
but still limited to the RAN. In particular, the NPRM seeks comment on 
the role of the Commission to independently and impartially evaluate 
whether alternative plans comply with the interoperability-related 
requirements established by FirstNet, and suggests that the Commission 
does not have the ability to impose network policies or 
interoperability requirements on FirstNet.
    24. The NPRM seeks comment on the view that if the Commission 
disapproves a plan, the opportunity for a State to conduct its own RAN 
deployment will be forfeited and FirstNet ``shall proceed in accordance 
with its proposed plan for that State.''
    25. The NPRM seeks comment on the view that the Commission's 
approval of a State opt-out plan as meeting the interoperability 
criteria in ection 6302(e)(3)(C) of the Act would not create a 
presumption that the State plan meets any of the criteria that NTIA is 
responsible for evaluating under section 6302(e)(3)(D) of the Act.
    26. The NPRM seeks comment on how the Commission should document 
its decisions to approve or disapprove State opt-out requests under the 
statutory criteria. Should it issue a written decision or order 
explaining the basis for each decision, or would it be sufficient to 
provide more limited notice of approval or disapproval in each case 
without a detailed explanation?

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

    27. The RFA requires an agency to describe any significant, 
specifically small business, alternatives that it has considered in 
reaching its proposed approach, which may include the following four 
alternatives (among others): (1) The establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance and 
reporting requirements under the rule for small entities; (3) the use 
of performance rather than design standards; and (4) an exemption from 
coverage of the rule, or any part thereof for small entities.
    28. The proposed rules will not affect any small entities.

G. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    29. None.

H. Paperwork Reduction Act of 1995 Analysis

    30. This NPRM seeks comment on potential new information collection 
requirements. If the Commission adopts any new information collection 
requirements, the Commission will publish a document in the Federal 
Register inviting the public to comment on the requirements, as 
required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 
U.S.C. 3501-3520). In addition, pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4), the Commission seeks specific comment on how it might 
``further reduce the information collection burden for small business 
concerns with fewer than 25 employees.''

Ordering Clauses

    31. Accordingly, it is ordered that, pursuant to sections 1, 4(i), 
4(j), 301, 303, and 316 of the Communications Act of 1934, as amended, 
47 U.S.C. 151, 154(i), 154(j), 301, 303, 316, as well as title VI of 
the Middle Class Tax Relief and Job Creation Act of 2012, Public Law 
112-96, 126 Stat. 156, the Notice of Proposed Rulemaking is hereby 
adopted.
    32. It is further ordered that pursuant to applicable procedures 
set forth in Sec. Sec.  1.415 and 1.419 of the Commission's rules, 47 
CFR 1.415, 1.419, interested parties may file comments on the NPRM on 
or before October 21, 2016 and reply comments on or before November 21, 
2016.

List of Subjects in 47 CFR Part 90

    Radio.


[[Page 64829]]


Federal Communications Commission.
Marlene Dortch,
Secretary.
    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 90 as follows:

PART 90--PRIVATE LAND MOBILE RADIO SERVICES

0
1. The authority citation for part 90 continues to read as follows:

    Authority:  Sections 4(i), 11, 303(g), 303(r) and 332(c)(7) of 
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 
303(g), 303(r) and 332(c)(7), and Title VI of the Middle Class Tax 
Relief and Job Creation Act of 2012, Pub. L. 112-96, 126 Stat. 156.

0
2. Revise Sec.  90.532 to read as follows:


Sec.  90.532  Licensing of the 758-769 MHz and 788-799 MHz Bands; State 
opt-out election and alternative plans.

    (a) First Responder Network Authority license and renewal. Pursuant 
to section 6201 of the Middle Class Tax Relief and Job Creation Act of 
2012, Public Law 112-96, 126 Stat. 156 (2012), a nationwide license for 
use of the 758-769 MHz and 788-799 MHz bands shall be issued to the 
First Responder Network Authority for an initial license term of ten 
years from the date of the initial issuance of the license. Prior to 
expiration of the term of such initial license, the First Responder 
Network Authority shall submit to the Commission an application for the 
renewal of such license. Such renewal application shall demonstrate 
that, during the preceding license term, the First Responder Network 
Authority has met the duties and obligations set forth under the 
foregoing Act. A renewal license shall be for a term not to exceed ten 
years.
    (b) State election to opt out of the First Responder Network 
Authority Nationwide Network. No later than 90 days after receipt of 
notice from the First Responder Network Authority under section 
6302(e)(1) of the Middle Class Tax Relief and Job Creation Act of 2012, 
Public Law 112-96, 126 Stat. 156 (Spectrum Act), any State governor 
electing to opt out and conduct its own deployment of a State radio 
access network pursuant to section 6302(e)(2)(B) of the Middle Class 
Tax Relief and Job Creation Act of 2012 shall file a notification of 
its election with the Commission. Such notification shall also certify 
that the State has notified the First Responder Network Authority and 
the National Telecommunications and Information Administration of its 
election.
    (c) Filing of alternative State plans by States electing to opt 
out. No later than 180 days after filing notice of a State's election 
with the Commission under paragraph (b) of this section, the State 
Governor or the Governor's designee shall file an alternative plan with 
the Commission for the construction, maintenance, operation and 
improvements of the State radio access network. Such a plan shall 
demonstrate:
    (1) That the State will be in compliance with the minimum technical 
interoperability requirements developed under section 6203 of the 
Middle Class Tax Relief and Job Creation Act of 2012; and
    (2) Interoperability with the nationwide public safety broadband 
network.

[FR Doc. 2016-22714 Filed 9-20-16; 8:45 am]
 BILLING CODE 6712-01-P