83 FR 63806 - Aviation Radio Service

FEDERAL COMMUNICATIONS COMMISSION

Federal Register Volume 83, Issue 238 (December 12, 2018)

Page Range		63806-63812
FR Document		2018-26413
In this document, the Federal Communications Commission (Commission or FCC) adopts a rule that prohibits the certification, and after a six-month transition period, the manufacture, importation, or sale of 121.5 MHz Emergency Locator Transmitters (ELTs), but declines to prohibit the use of 121.5 MHz ELTs. By accelerating the transition from 121.5 MHz ELTs to 406 MHz ELTs, this rule change will enhance the ability of search and rescue personnel to locate and bring aid to the victims of plane crashes.
Federal Register, Volume 83 Issue 238 (Wednesday, December 12, 2018)
[Federal Register Volume 83, Number 238 (Wednesday, December 12, 2018)]
[Rules and Regulations]
[Pages 63806-63812]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-26413]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 87

[WT Docket No. 01-289; FCC 18-155]


 Aviation Radio Service

AGENCY: Federal Communications Commission.

ACTION: Final rule; lifting of stay.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission or FCC) adopts a rule that prohibits the certification, and 
after a six-month transition period, the manufacture, importation, or 
sale of 121.5 MHz Emergency Locator Transmitters (ELTs), but declines 
to prohibit the use of 121.5 MHz ELTs. By accelerating the transition 
from 121.5 MHz ELTs to 406 MHz ELTs, this rule change will enhance the 
ability of search and rescue personnel to locate and bring aid to the 
victims of plane crashes.

DATES: The rule is effective January 11, 2019. The stay of Sec.  87.195 
is lifted effective January 11, 2019.

ADDRESSES: Federal Communications Commission, 445 12th Street SW, 
Washington DC 20554.

FOR FURTHER INFORMATION CONTACT: Jeffrey Tobias, [email protected], 
Wireless Telecommunications Bureau, (202) 418-1617, or TTY (202) 418-
7233.

SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communications Commission's Fourth Report and Order in WT Docket No. 
01-289, FCC 18-155, adopted on November 7, 2018, and released on 
November 8, 2018. The full text of this document is available for 
inspection and copying during normal business hours in the FCC 
Reference Information Center, Portals II, 445 12th Street SW, 
Washington, DC 20554. Alternative formats are available to persons with 
disabilities by sending an email to [email protected] or by calling the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty). To request materials in accessible formats for persons 
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). The complete text is also available on the Commission's website 
at: www.fcc.gov.
    1. Emergency Locator Transmitters (ELTs) are radio beacons that are 
carried on board aircraft and triggered in the event of a crash or 
other unplanned downing. The Commission authorizes these devices to 
serve as an effective locating aid for survival purposes. For years, 
the ELTs operated only at 121.5 MHz, with their transmissions monitored 
by an international satellite-based system (the Cospas-Sarsat system) 
that could determine their location over most of the world's major air 
and sea travel paths. By 2010, however, the Cospas-Sarsat system 
limited tracking of ELTs to a newer type operating primarily at 406 
MHz, thus eroding the utility of the 121.5 MHz ELTs as an effective 
locating aid. By accelerating the transition to 406 MHz ELTs with the 
rule changes we adopt in this Fourth Report and Order, we will enhance 
the ability of search and rescue personnel to locate and bring aid to 
the victims of plane crashes.
    2. Section 332 of the Communications Act of 1934, as amended (the 
Act), states that the Commission, ``[i]n taking actions to manage the 
spectrum to be made available for use by the private mobile services . 
. . shall consider . . . whether such actions will . . . promote the 
safety of life and property; [or] (2) improve the efficiency of 
spectrum use and reduce the regulatory burden upon spectrum users, 
based upon sound engineering principles, user operational requirements, 
and marketplace demands . . . .'' Section 303 of the Act further 
requires the Commission, pursuant to its licensing authority, to 
``prescribe the nature of the service to be rendered by each class of 
licensed stations and each station within any class.'' In concert with 
these direct statutory mandates, the Commission has an obligation to 
advance the goal ``of obtaining maximum effectiveness from the use of 
radio and wire communications in connection with safety of life and 
property.'' \1\
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    \1\ The Act also mandates that the Commission ``encourage the 
larger and more effective use of radio in the public interest.'' In 
addition, the Act and its statutory predecessors, the Radio Acts of 
1912 and 1927, have long reflected Congress's special concern about 
protecting the integrity of distress communications.
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    3. In furtherance of these statutory responsibilities, the 
Commission authorizes and regulates three types of satellite emergency 
radiobeacons: Emergency Position-Indicating Radiobeacons (EPIRBs),\2\ 
Personal Locator Beacons (PLBs),\3\ and ELTs.\4\ ELTs are activated 
after an aircraft crash to alert search and rescue personnel of the 
incident and to identify the location of the aircraft and any 
survivors. Most aircraft, including most general aviation (GA) 
aircraft, are required by federal statute to carry an ELT.
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    \2\ EPIRBs are float-free emergency transmitters carried on 
marine vessels that alert maritime search and rescue authorities 
that the vessel is in distress.
    \3\ PLBs are emergency transmitters available to the general 
public to alert search and rescue personnel in case of a life-
threatening emergency in a remote area.
    \4\ See 47 CFR 87.199.
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    4. The two types of ELT now in service are the 406 MHz ELT and the 
121.5 MHz ELT.\5\ 406 MHz ELTs transmit a 406 MHz digital distress 
signal containing information on the type of emergency, the country and 
identification code of the beacon, and

[[Page 63807]]

other data to assist search and rescue operations; and a lower-powered 
homing signal on 121.5 MHz to guide search and rescue teams to the 
aircraft once they arrive in the general area. 121.5 MHz ELTs transmit 
an analog signal on 121.5 MHz containing only an audio alert, intended 
to serve both as a distress signal and a homing signal.\6\
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    \5\ ELTs, like EPIRBs, were initially authorized to operate only 
on 121.5 MHz and (primarily for military use) on 243 MHz. In 1988, 
the Commission amended the part 80 rules to permit EPIRBs to operate 
on the frequency 406.025 MHz as well. In 1993, the Commission 
likewise authorized the use of 406.025 MHz by ELTs, noting that 
doing so had ``overwhelming support.'' PLBs have never been 
authorized to transmit a distress signal on 121.5 MHz, but only on 
406.025 MHz.
    \6\ The term ``121.5 MHz ELTs,'' as used here, refers only to 
ELTs designed to transmit the distress alert on the frequency 121.5 
MHz. (Such ELTs are sometimes referred to as 121.5/243 MHz ELTs.) It 
does not include 406 MHz ELTs, notwithstanding that 406 MHz ELTs use 
121.5 MHz for a homing signal, and we emphasize that nothing we do 
here prevents the certification, manufacture, importation, sale, or 
use of 406 MHz ELTs, or is intended to restrict the use of the 121.5 
MHz frequency for homing.
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    5. As technology continues to evolve, the Commission must 
periodically reevaluate and, to the extent necessary, modify the 
requirements for services it regulates. Developments in the satellite 
monitoring framework used by EPIRBs and ELTs have undermined their 
reliance on 121.5 MHz as the key frequency that enables them to 
effectively perform the public safety functions for which they were 
authorized. More specifically, the Cospas-Sarsat satellite system \7\ 
had formerly monitored both the 121.5 MHz and 406 MHz bands for EPIRBs 
and ELTs and had relayed distress alerts to the appropriate search and 
rescue authority. In 2000, however, Cospas-Sarsat announced that, 
beginning in 2009, it would cease monitoring 121.5 MHz because of 
reliability and false alert concerns with 121.5 MHz radiobeacons, and 
it urged 121.5 MHz radiobeacon users to switch to 406 MHz radiobeacons. 
The National Oceanic and Atmospheric Administration (NOAA), the U.S. 
Coast Guard (USCG), the U.S. Air Force, and the National Aeronautics 
and Space Administration (NASA)--which administer the Cospas-Sarsat 
system in the United States--also advised users to switch to 406 MHz 
radiobeacons.
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    \7\ Cospas-Sarsat is an international satellite-based search and 
rescue system established by Canada, France, Russia, and the United 
States. Cospas is an acronym for a Russian phrase meaning space 
system for search and distress vessels. Sarsat stands for Search and 
Rescue Satellite Aided Tracking. ELTs also can be monitored by 
ground-based air traffic control facilities and by passing aircraft.
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    6. Because of these developments, the Commission in 2002 modified 
the rules governing EPIRBs to phase out use of EPIRBs designed to 
transmit distress alerts on the 121.5 MHz frequency (121.5 MHz EPIRBs); 
certification of 121.5 MHz EPIRBs ceased immediately, sale and 
manufacture of 121.5 MHz EPIRBs was prohibited as of 2003, and use of 
121.5 MHz EPIRBs was prohibited effective December 31, 2006.
    7. The Commission in 2006 requested comment on actions it should 
take with regard to 121.5 MHz ELTs in light of the scheduled 
termination of Cospas-Sarsat monitoring of 121.5 MHz. Commenters 
generally supported a phase-out of 121.5 MHz ELTs.\8\
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    \8\ The National Telecommunications and Information 
Administration (NTIA) and Federal Aviation Administration (FAA) 
stated that they generally supported the proposals in the Second 
FNPRM (71 FR 70710, December 6, 2006), but did not specifically 
address the issue of 121.5 MHz ELTs. Only one commenter opposed a 
phase-out of 121.5 MHz ELTs, arguing without elaboration that 
``alternative ELT surveillance technology will emerge'' and stating 
that 406 MHz ELT prices were ``exorbitant.''
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    8. In 2010, after Cospas-Sarsat stopped monitoring 121.5 MHz, the 
Commission amended Sec.  87.195 of the rules in the Third Report and 
Order (3rd R&O) (76 FR 17347, March 29, 2011) in this proceeding to 
prohibit the continued certification, manufacture, importation, sale, 
and use of 121.5 MHz ELTs.\9\ After the 3rd R&O was released in 2010, 
the Federal Aviation Administration (FAA) and the Aircraft Owners and 
Pilots Association (AOPA) asked the Commission to revisit its decision 
to prohibit 121.5 MHz ELTs.\10\ In response to their concerns, the 
Commission stayed its amendment of Sec.  87.195.
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    \9\ The Commission concluded that the benefits of mandating a 
transition to 406 MHz ELTs outweighed the compliance costs, 
especially since the GA community had been on notice for ten years 
that satellite monitoring of 121.5 MHz would end.
    \10\ Both the FAA and AOPA said that 121.5 MHz ELTs retain 
safety value even after the termination of Cospas-Sarsat monitoring 
of the frequency, and expressed concern about the cost and 
availability of 406 MHz ELTs for those who would be required to 
replace a 121.5 MHz ELT.
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    9. In the 2013 Third Further Notice of Proposed Rule Making (3rd 
FNPRM) (78 FR 6276, January 30, 2013) in this proceeding, the 
Commission requested additional comment on the appropriate regulatory 
treatment of 121.5 MHz ELTs.\11\ Stating that it ``continue[d] to 
believe that a phase-out of 121.5 MHz ELTs is in the public interest'' 
based on the record established to that date, even as augmented by the 
information and arguments submitted after the release of the 3rd R&O, 
the Commission proposed to prohibit further certification of new 121.5 
MHz ELTs immediately and to prohibit any further manufacture, 
importation, or sale of 121.5 MHz ELTs one year after the effective 
date of the rule amendments. The Commission also sought comment on 
whether to prohibit the use of 121.5 MHz ELTs. It also asked whether it 
should grandfather continued use of installed 121.5 MHz ELTs only for a 
defined time period, and, if so, how long; or whether installed 121.5 
MHz ELTs should be grandfathered indefinitely, so that GA aircraft 
owners and pilots would not have to replace their 121.5 MHz ELTs until 
the end of the equipment's useful life.
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    \11\ The initial pleading cycle required the filing of comments 
by March 1 and reply comments by March 18, 2013. The Wireless 
Telecommunications Bureau extended those deadlines to April 1 and 
May 2, 2013. The U.S. Department of Transportation (DOT) and the 
National Telecommunications and Information Administration (NTIA) 
separately filed comments after the close of the pleading cycle, 
which we will treat as ex parte presentations and accept into the 
record of this proceeding in the interest of having as complete a 
record as possible to inform our decisions.
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    10. In addition, the Commission requested information on matters 
that had not been fully addressed by commenters prior to adoption of 
the 3rd R&O. It requested data on the costs and benefits of a mandatory 
phase-out of 121.5 MHz ELTs, both for aircraft owners and pilots and 
for search and rescue agencies and personnel. It also asked for comment 
on the sufficiency of the inventory of 406 MHz ELTs to satisfy the 
expected demand if a transition to such equipment is mandated, on the 
residual safety benefits, if any, of 121.5 MHz ELTs, and on whether 
mandating a transition from 121.5 MHz to 406 MHz ELTs is warranted in 
light of the availability of alternative technologies that may provide 
similar or arguably greater safety benefits, such as Automatic 
Dependent Surveillance--Broadcast (ADS-B) service.\12\
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    \12\ ADS-B service automatically broadcasts GPS-derived data on 
the location, velocity, altitude, heading, etc., of an ADS-B-
equipped aircraft to other ADS-B-equipped aircraft and ground 
stations for distribution to air traffic control systems. ADS-B is 
the foundation of the Next Generation Air Transportation System, or 
NextGen, which is designed to transform the air traffic control 
system in United States airspace by shifting from reliance on ground 
radar and navigational aids to satellite-based tracking.
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    11. In this Fourth Report and Order, we prohibit the certification 
and, after a six-month transitional period, the manufacture, 
importation, and sale of 121.5 MHz ELTs. This will accelerate the 
transition to 406 MHz ELTs and, as a consequence, enhance the ability 
of search and rescue personnel to locate and bring aid to the victims 
of plane crashes and provide safety benefits to search and rescue 
personnel as well as pilots and passengers.
    12. Certification. As proposed in the 3rd FNPRM, we prohibit 
certification of new models of 121.5 MHz ELTs as of the effective date 
of this Fourth Report

[[Page 63808]]

and Order.\13\ Several commenters confirm that, as the Commission 
previously noted, there should be no new models of 121.5 MHz ELTs to 
certify because in 2012 the FAA canceled its Technical Standard Order 
for 121.5 MHz ELTs, which precludes approval of any new models. We 
agree with the National Telecommunications and Information 
Administration (NTIA) and ELT manufacturers that there is no reason to 
hold open the possibility of certifying new 121.5 MHz ELTs. Although 
some commenters oppose any measure that might restrict the availability 
of 121.5 MHz ELTs, including prohibiting the certification of new 
models of 121.5 MHz ELTs, they do not offer a rationale for allowing 
such continued certification.\14\ Accordingly, we amend Sec.  87.195 of 
our rules to discontinue such certification.
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    \13\ The effective date is 30 days after Federal Register 
publication.
    \14\ GAMA argues that prohibiting certification of 121.5 MHz 
ELTs would impose an unnecessary regulatory mandate. We disagree. A 
Commission determination not to certify any additional models of 
121.5 MHz ELTs does not mandate that private sector entities take 
any actions or expend any funds.
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    13. Manufacture, importation, and sale. We will prohibit the 
manufacture, importation, and sale of 121.5 MHz ELTs, beginning six 
months after the effective date of this Fourth Report and Order, as 
suggested by NTIA. We conclude that this action is necessary to ensure 
that ELTs continue to serve their authorized purpose of providing an 
effective, spectrum-based way to facilitate locating aircraft for 
survival purposes; and to manage the spectrum available for use by the 
private mobile service to ensure the effective and efficient use of 
that spectrum for safety-related communications. These rule changes 
will substantially improve the efficiency and reliability of the 
services using this spectrum.\15\
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    \15\ This action is consistent with previous Commission efforts 
establishing technical requirements specifically for ELTs and other 
emergency radiobeacons to ensure that they work efficiently and 
reliably as intended.
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    14. The record demonstrates that 121.5 MHz ELTs were clearly 
inferior to 406 MHz ELTs due to interference and other concerns even 
prior to the termination of satellite monitoring of 121.5 MHz,\16\ and 
that the advantages of 406 MHz ELTs have increased since then.\17\ The 
global coverage,\18\ reduction in false alerts,\19\ and more precise 
identification of crash sites \20\ provided by 406 MHz ELTs can save 
the lives of pilots and passengers,\21\ and reduce both the cost to 
taxpayers of search and rescue operations and the risks borne by search 
and rescue personnel.\22\ 406 MHz ELTs also are more likely than 121.5 
MHz ELTs to activate in the event of an actual crash. They have safer, 
more reliable batteries; and better heat, cold, vibration, and fire 
resistance.
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    \16\ ELTech notes that 121.5 MHz ELT transmissions are 
``problematic due to their harmonics.'' It states that the United 
States Air Force Rescue Command Center ``has reported looking for 
downed aircraft and being thwarted by 121.5 signals being 
`retransmitted' along the power grid,'' and many unintentional 
radiators on 121.5 MHz interfered with Cospas-Sarsat's ability to 
respond to actual distress transmissions on the frequency. In 
determining that helicopters conducting over-water operations be 
required to carry 406 MHz ELTs, the FAA cited ``a stronger signal 
resulting in less interference'' as one of the benefits of 406 MHz 
ELTs vis-a-vis 121.5 MHz ELTs.
    \17\ NTIA submitted with its comments a 1996 NOAA report 
quantifying the benefits of 406 MHz ELTs compared to 121.5 MHz ELTs. 
Similarly, with respect to EPIRBs, the Commission noted that even 
before the termination of satellite monitoring, ``[l]ifesaving 
efforts [we]re often ineffective when 121.5/243 MHz EPIRBs transmit 
because there [wa]s no available registration information to aid 
detection [and] . . . 406 MHz EPIRBs [we]re responsible for four 
times the number of lives saved as 121.5/243 MHz EPIRBs, while being 
responsible for only two percent of the total number of false alerts 
attributed to 121.5/243 MHz EPIRBs.''
    \18\ In contrast to the global coverage of a 406 MHz ELT, a 
121.5 MHz ELT distress signal may not be detected ``unless the 
incident occurs near an airport, the plane's 121.5 MHz signal is 
detected by an overflying aircraft, or the downed plane fails to 
arrive at its intended destination,'' and any notification that does 
occur may be hours after the crash.
    \19\ The National Transportation Safety Board (NTSB) has noted 
that detectable 121.5 MHz signals can be emitted by, e.g., automated 
teller machines, pizza ovens, CD players, and stadium scoreboards. 
Moreover, a significant number of alerts from 121.5 MHz ELTs turn 
out to be false alarms. As noted above, 406 MHz ELTs transmit a 
digital signal encoded with unique information about the aircraft 
and its owner that permits speedy verification that a distress 
situation is real.
    \20\ NTIA says that the greater accuracy of 406 MHz ELTs reduces 
the search area for a crash to less than two nautical miles (3.7 km) 
in radius, or approximately 43 square kilometers, and that 406 MHz 
ELTs, unlike 121.5 MHz ELTs, can be equipped with a GPS chip that 
can further refine the search area to within 100 meters of a crash. 
In contrast, ``The U.S. SARSAT program estimates that, if a 
commercial airliner flying at 30,000 feet detects a 121.5 MHz 
signal, the probable search area would have a radius of 198 miles 
(about 317 km), and an area of 123,613 square miles (315,696 
km\2\).''
    \21\ Under FAA regulations, planes designed to carry not more 
than one person are exempt from the ELT carriage requirement.
    \22\ ACR notes that the greater precision of 406 MHz ELTs not 
only enhances the likelihood that a survivor will receive medical 
care more quickly but also minimizes risk to search and rescue 
personnel by allowing them to reach the crash scene with less 
flying, hiking, etc.
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    15. Although it appears that most GA aircraft owners and pilots are 
aware that satellite monitoring of 121.5 MHz ELTs has ceased,\23\ some 
users may place unwarranted reliance on the protective value of 121.5 
MHz ELTs based on a mistaken understanding of the scope and efficacy of 
non-satellite-based monitoring of the frequency, if these ELTs continue 
to be marketed indefinitely. As discussed below, despite the claims of 
some commenters regarding the vestigial benefits of 121.5 MHz ELTs, the 
great weight of the record evidence indicates that these benefits are 
marginal at best and more than offset by the difficulties for search 
and rescue efforts that would attend allowing the indefinite continued 
installation of such ELTs. Finally, while the FAA and AOPA expressed 
concern in 2010 about the availability of 406 MHz ELTs, more recent 
filings in the record establish that manufacturers have more than 
sufficient manufacturing capacity and depth of supply chain to meet 
demand for such ELTs.
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    \23\ In the 3rd FNPRM, the Commission asked whether, if it 
permitted the continued sale of 121.5 MHz ELTs, it should enact 
additional requirements, such as labeling or point-of-sale 
disclosure requirements, to ensure that purchasers are aware that 
121.5 MHz ELTs lack satellite alerting capability. NTSB states that 
it does not believe such requirements are necessary in light of 
survey data indicating that 96 percent of AOPA's members are aware 
that Cospas-Sarsat no longer monitors 121.5 MHz. We agree and 
therefore decline to adopt any labeling or point-of-sale disclosure 
requirements during the remaining period when sale of 121.5 MHz ELTs 
will be permitted.
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    16. Commenters opposed to prohibiting the manufacture, importation, 
and sale of 121.5 MHz ELTs argue that such action will impose costs 
that outweigh the benefits. Some commenters argue that the benefits of 
phasing out 121.5 MHz ELTs in favor of 406 MHz ELTs have been 
overstated because 121.5 MHz ELTs' continued safety benefits have not 
been fully recognized.\24\ The record indicates, however, that current 
monitoring of 121.5 MHz distress transmissions is sporadic \25\ and 
geographically limited.
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    \24\ DOT states, for example, that 121.5 MHz ELTs ``continue to 
provide a beneficial means of locating missing aircraft in critical 
emergency situations'' because 121.5 MHz ELT signals ``continue to 
be monitored by the search and rescue community, most notably the 
Civil Air Patrol . . . .'' The record indicates, however, that there 
is no formal CAP monitoring of the frequency, and that CAP supports 
a deliberate transition to 406 MHz technology. (Moreover, as noted, 
the position of the Executive Branch, as reflected in the NTIA Ex 
Parte filed six months after the DOT Ex Parte, reflects support for 
a complete switchover to 406 MHz ELTs.) Others argue that since 
121.5 MHz ELTs were deemed to promote aviation safety prior to 
satellite monitoring, they should be deemed to continue to have such 
value even after the cessation of satellite monitoring.
    \25\ NTIA, for example, notes that the FAA Aeronautical 
Information Manual states only that pilots are ``encouraged'' to 
monitor 121.5 MHz while in flight to assist in identifying possible 
ELT transmissions.
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    17. There is no evidence, moreover that the costs to ELT 
manufacturers and distributors would be substantial, for manufacturers 
indicate that they would not be burdened with stranded

[[Page 63809]]

inventory. The record indicates that manufacturers, distributors, and 
retailers do not have significant on-the-shelf inventories of 121.5 MHz 
ELTs due to battery life issues.
    18. The Aviation Suppliers Association (ASA) does not dispute that 
existing inventories can be depleted quickly, but argues that 
prohibiting the sale of 121.5 MHz ELTs would work an unconstitutional 
taking of property under the Fifth Amendment by rendering distributors' 
inventory of 121.5 MHz ELTs worthless. The Supreme Court has 
established a three-part test for determining whether a regulatory 
taking has occurred, in which a court will consider (1) the economic 
impact of the regulation on the claimant, (2) the extent to which the 
regulation interferes with the claimant's investment-backed 
expectations, and (3) the character of the government regulation or 
action. There is no evidence in the record to suggest that these 
criteria have been met. Moreover, ASA does not cite, and we are 
otherwise are not aware of, any authority for the proposition that 
prohibiting the sale of legacy devices, particularly following a 
transition period, constitutes a Fifth Amendment regulatory taking. 
Phasing in prohibitions such as the ones adopted herein is a common and 
necessary approach where the Commission has determined that ongoing use 
of legacy devices will be incompatible with changes in spectrum use 
mandated by the public interest, and operates to mitigate the 
``economic impact'' of the governmental regulatory action.
    19. It also does not appear that removing 121.5 MHz ELTs from the 
marketplace will impose significant costs on users in terms of a future 
price differential between 406 MHz ELTs and 121.5 MHz ELTs. The only 
responsive data to the Commission's request for ``specific data on the 
costs of purchasing and installing a 406 MHz ELT'' suggests that the 
price differential between 406 MHz ELTs and 121.5 MHz ELTs has 
decreased significantly in the last few years, and will decrease 
further: In 2010, the FAA estimated the average cost of a 406 MHz ELT 
to be more than $2,500, but comments submitted in 2013 indicate that 
the price had already dropped to less than half of that.\26\ Based on 
staff review of publicly available information, we believe that 406 MHz 
ELTs are now available for less than $600. Commenters who oppose the 
proposed prohibitions have not offered any information to quantify 
costs to the GA community from prohibiting the manufacture, 
importation, or sale of 121.5 MHz ELTs. Consequently, we are not 
persuaded by unsubstantiated claims that costs to GA aircraft owners 
and pilots resulting from the removal of 121.5 MHz ELTs from the market 
would hinder them from investing in other equipment or measures that 
would make more efficient use of this spectrum and better promote 
aviation safety.
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    \26\ ACK states that commenters opposing the Commission's 
proposals rely on outdated FAA data estimating the average cost of a 
406 MHz ELT at $2,800, and that retail costs of GPS-capable 406 MHz 
ELTs have fallen to as low as $550. It adds that a complete new 
installation, including parts and labor, would cost between $830 and 
$1,100. ELTech says that 406 MHz ELTs are now available for between 
$600 and $1600, with an additional $250 to $400 in labor costs for 
installation. ELTech Comments at 3.
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    20. Nor do we agree that prohibiting the manufacture, importation, 
and sale of 121.5 MHz ELTs is unnecessary because a transition to 406 
MHz ELTs will occur naturally over time without Commission 
intervention. That a migration would occur eventually does not justify 
inaction, when the modest action that we are taking here should 
expedite the changes to the nature of this service that we have 
determined, pursuant to section 303(b), will maximize the efficient use 
of spectrum and best serve the public interest, convenience, and 
necessity. Similarly, in considering whether this action in managing 
the spectrum will promote the safety of life and property, as required 
by section 332(a), we find that it would disserve the public interest 
to take a slower path than the one we have chosen here. Moreover, for 
the reasons discussed below, we have determined that imposing a direct 
ban on licensee use of 121.5 MHz ELTs would be unlikely to produce a 
substantially quicker transition to 406 MHz ELT use. Accordingly, we 
impose this phased-in prohibition on the manufacture, importation, and 
sale of 121.5 ELTs to fulfill our statutory responsibilities 
effectively.
    21. Commenters who favor prohibiting the manufacture, importation, 
and sale of 121.5 MHz ELTs support a transition period of one year (as 
proposed in the 3rd FNPRM) or less. We believe that, at this juncture, 
a six-month transition period strikes a reasonable compromise in 
accelerating the removal of 121.5 MHz ELTs from the stream of commerce 
while avoiding undue hardship to manufacturers, importers, vendors, and 
users of the devices. Manufacturers, importers, vendors, and users have 
been on notice for many years that 121.5 MHz ELTs would have a 
diminishing role in avionics, and it appears that there is currently 
very little manufacturing or sales activity involving 121.5 MHz ELTs. 
We therefore amend Sec.  87.195 of our rules to prohibit the 
manufacture, importation, or sale of 121.5 MHz ELTs, beginning six 
months from the effective date of this Fourth Report and Order.\27\
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    \27\ ACR also favors a one-year phase-out of the sale and 
installation of replacement batteries, and an immediate prohibition 
on the manufacture and importation of battery packs, replacement 
parts, and on-field servicing of 121.5 MHz ELTs. In the 3rd FNPRM, 
the Commission stated that it was ``not proposing any prohibition or 
restriction on the manufacture, sale, or installation of replacement 
components, such as batteries, for 121.5 MHz ELTs in use [because] . 
. . permitting the continued marketing of replacement components for 
121.5 MHz ELTs does not present the same concerns, and would not 
delay the transition to 406 MHz ELTs to the same extent, as 
permitting the continued marketing of stand-alone 121.5 MHz ELTs.'' 
The Commission also invited comment on this issue, however. We 
decline to prohibit the manufacture, importation, sale, or 
installation of replacement components for 121.5 MHz ELTs both for 
the reasons stated in the 3rd FNPRM and because we believe that such 
action would be inconsistent with our decision to permit the 
continued use of 121.5 MHz ELTs, as discussed below. If the 
continuing availability of replacement parts for 121.5 MHz ELTs 
appears to be frustrating our goal of speeding the transition to 406 
MHz ELTs, we may revisit this issue.
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    22. Use. After reviewing the record and the relevant statutory 
authority, we do not adopt a prohibition on the continued use of 
existing 121.5 MHz ELTs. Some commenters favor prohibiting the use of 
121.5 MHz ELTs based on the same considerations that underlie their 
support for the Commission's proposals to prohibit the manufacture, 
importation, and sale of 121.5 MHz ELTs, albeit after a longer 
transition period to minimize the cost burden on the GA community. NTIA 
recommends a transition period of eight years before the use of 121.5 
MHz ELTs is prohibited, while others advocate shorter grandfathering 
periods.
    23. Those who oppose a prohibition on the use of 121.5 MHz ELTs, 
even if accomplished gradually and with grandfathering protections, 
argue that it would impose costs on the GA community that outweigh the 
benefits; that it is unnecessary because a transition to exclusive use 
of 406 MHz ELTs will occur naturally over time; and that requiring 
users of 121.5 MHz ELTs to upgrade to 406 MHz ELTs by a specified 
deadline would foreclose them from investing in other equipment and 
measures that would better promote aviation safety. While these are 
generally the same arguments that these parties raise against 
prohibiting the manufacture, importation, and sale of 121.5 MHz ELTs, 
the record indicates that these parties' greatest concern is with 
prohibiting the use of 121.5 MHz ELTs, and that they are most strongly 
opposed to the adoption of a rule that might require GA aircraft owners 
to replace 121.5 MHz ELTs before the end

[[Page 63810]]

of their useful lives, especially given the imminence of an ADS-B 
mandate (scheduled to take effect in 2020) that would require an 
additional significant expenditure of funds for new equipment; they 
fear that, after purchasing and installing a 406 MHz ELT, they will be 
required a few years later to purchase ADS-B equipment that provides 
equivalent or greater safety benefits.
    24. Commenters also contend that the statutory provision requiring 
most fixed-wing powered civil aircraft to carry an ELT--section 44712 
of Title 49 of the United States Code, which provides that an 
``aircraft meets the [ELT carriage] requirement . . . if it is equipped 
with an emergency locator transmitter that transmits on the 121.5/243 
megahertz frequency or the 406 megahertz frequency or with other 
equipment approved by the Secretary for meeting the requirement''--
forecloses the Commission from prohibiting use of 121.5 MHz ELTs.\28\ 
Those who oppose a use prohibition also argue that the Commission 
should defer to the FAA on this issue, and that it would be 
inappropriate for the Commission to prohibit the use of 121.5 MHz ELTs 
when the FAA has declined to do so. The proponents of a use prohibition 
do not address the argument that section 44712 precludes such a 
prohibition.
---------------------------------------------------------------------------

    \28\ In comments filed in advance of the NTIA Ex Parte, DOT also 
asserts that the relevant statutory language reflects ``Congress's 
unequivocal intent to permit the use of 121.5 [MHz] ELTs in civil 
aircraft.'' We note that the DOT ex parte comments and the later-
filed NTIA Ex Parte take conflicting positions regarding a use 
prohibition. While the DOT Ex Parte opposing a prohibition on the 
use of 121.5 MHz ELTs state that ``DOT and FAA officials have shared 
the views expressed here with representatives of . . . NTIA,'' NTIA 
says that its later-filed comments supporting the prohibition on the 
use of 121.5 MHz ELTs include the input of the FAA, supersede the 
earlier DOT ex parte comments, and ``reflect the views of the 
Executive Branch on the issues raised in the [3rd FNPRM].''
---------------------------------------------------------------------------

    25. We decline to prohibit the use of 121.5 MHz ELTs at this 
time.\29\ The language of section 44712 casts doubt on our authority to 
prohibit the use of 121.5 MHz ELTs. Moreover, even if section 44712 
permits such action, we question whether prohibiting the use of 121.5 
MHz ELTs after a substantial transition period would bring about an end 
to the use of 121.5 MHz ELTs significantly sooner than what would occur 
naturally after such ELTs can no longer be certified, manufactured, 
imported, or sold. We anticipate that a transition to 406 MHz ELTs will 
occur naturally over time without additional Commission intervention 
beyond phasing out the certification, manufacture, importation, and 
sale of 121.5 MHz ELTs. It is possible, and perhaps likely, that a 
decision now to prohibit the use of 121.5 MHz ELTs after a transition 
period of up to eight years, as proposed by NTIA, could be overtaken by 
federal legislation, other legal developments, and/or technological 
advances, particularly with regard to ADS-B deployment.\30\ We have 
rejected the idea that we should take no action at all to remove 121.5 
MHz ELTs from the marketplace based on the argument that such devices 
would eventually cease to be marketed. However, we conclude that, in 
terms of accelerating the transition to exclusive use of 406 MHz ELTs, 
the marginal benefits of banning the use of 121 MHz ELTs, given the ban 
on future sales, do not outweigh the costs. Therefore, the public 
interest would not be advanced by a further rule change to the actions 
we are taking here, as it would not appear to provide any added net 
benefit. We reserve discretion to revisit this matter in furtherance of 
our statutory obligation to ensure the effective and efficient use of 
spectrum for safety-related communications if future events so warrant. 
Meanwhile, we encourage users to switch to 406 MHz radiobeacons at the 
earliest practical opportunity, in light of the safety benefits 
discussed above.
---------------------------------------------------------------------------

    \29\ In light of this decision, we need not address arguments 
that we may not prohibit the use of 121.5 MHz ELTs because the 
Commission failed to provide adequate notice in the 3rd FNPRM that 
it was contemplating a use prohibition, failed to provide an 
adequate cost/benefit analysis of such a prohibition, or relied on a 
deficient Supplemental Initial Regulatory Flexibility Analysis.
    \30\ Other commenters proposed shorter transition periods, but 
still long enough to raise questions regarding the incremental 
benefit of a use prohibition in light of these concerns. No party 
proposed an immediate or short-term transition.
---------------------------------------------------------------------------

    26. Finally, as proposed in the 3rd FNPRM, we revise Sec.  
87.147(b) of the rules to delete an outdated cross-reference. The rule 
cross-references subpart N of part 2 of the rules, but subpart N has 
been deleted. No commenter addressed this issue.\31\
---------------------------------------------------------------------------

    \31\ RTCM's recommendation that we remove the labeling 
requirement in Sec.  87.147(b) is beyond the scope of the 3rd FNPRM. 
In addition, as long as the manufacture, importation, and sale of 
121.5 MHz ELTs is permitted, we believe that the labeling 
requirement should remain unchanged in order to avoid any confusion 
about the standard to which the unit was certified.
---------------------------------------------------------------------------

    27. Procedural Matters. Final Regulatory Flexibility Analysis. As 
required by the Regulatory Flexibility Act of 1980, as amended (RFA), 
an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in 
the Third Further Notice of Proposed Rulemaking (Third FNPRM), at 78 FR 
6276, January 30, 2013. The Commission sought written public comment on 
the proposals in the Third FNPRM, including comment on the IRFA. This 
present Final Regulatory Flexibility Analysis (FRFA) conforms to the 
RFA.
    28. The rules adopted in the Fourth Report and Order are intended 
to promote aviation safety. Specifically, in the Fourth Report and 
Order, the Commission prohibits the certification and, after six 
months, the manufacture, importation, or sale 121.5 MHz ELTs in order 
to accelerate the transition to the more reliable and effective 406 MHz 
ELTs, which will enhance the ability of search and rescue personnel to 
rapidly and safely identify and come to the aid of the victims of 
airplane crashes.
    29. Commenters argued that that the IRFA was deficient because it 
did not provide an adequate costs/benefits analysis of prohibiting the 
continued use of 121.5 MHz ELTs, by understating the safety benefits of 
121.5 MHz ELTs even after the cessation of satellite monitoring of 
121.5 MHz, overstating the safety benefits of 406 MHz ELTs, and failing 
to fully recognize the compliance costs to general aviation aircraft 
owners and pilots of having to swap out a 121.5 MHz ELT for a 406 MHz 
ELT before the end of the useful life of the former. In the Fourth 
Report and Order, the Commission determined to not prohibit the use of 
121.5 MHz ELTs, mooting these issues.
    30. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the rules adopted herein. The RFA 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).
    31. Small businesses in the aviation and marine radio services use 
a marine very high frequency (VHF), medium frequency (MF), or high 
frequency (HF) radio, any type of emergency position indicating radio 
beacon (EPIRB) and/or radar, an aircraft radio, and/or any type of 
emergency locator transmitter (ELT). The Commission has not developed a 
definition of small entities specifically applicable to these small 
businesses. For purposes of this analysis, therefore, the Commission 
uses the SBA small business size standard for the category ``Wireless 
Telecommunications Carriers

[[Page 63811]]

(except satellite),'' which is 1,500 or fewer employees. Census data 
for 2012 shows that there were 967 firms in that category that operated 
for the entire year. Of those 967, 955 had fewer than 1,000 employees, 
and 12 firms had 1,000 or more employees. Thus, under this category and 
the associated small business size standard, the majority of firms can 
be considered small.
    32. Some of the rules adopted herein may also affect small 
businesses that manufacture aviation radio equipment. The Census Bureau 
does not have a category specific to aviation radio equipment 
manufacturers. The appropriate category is that for wireless 
communications equipment manufacturers. The Census Bureau defines this 
category as follows: ``This industry comprises establishments primarily 
engaged in manufacturing radio and television broadcast and wireless 
communications equipment. Examples of products made by these 
establishments are: Transmitting and receiving antennas, cable 
television equipment, GPS equipment, pagers, cellular phones, mobile 
communications equipment, and radio and television studio and 
broadcasting equipment.'' The SBA has developed a small business size 
standard for Radio and Television Broadcasting and Wireless 
Communications Equipment Manufacturing, which is: All such firms having 
750 or fewer employees. According to Census bureau data for 2012, there 
were a total of 841 firms in this category that operated that year. Of 
this total, 828 had fewer than 1,000 employees and 13 had 1,000 or more 
employees. Thus, under this size standard, the majority of firms can be 
considered small.
    33. The rule changes adopted in the Fourth Report and Order do not 
impose any new reporting or recordkeeping requirements on any entity. 
The rule changes in the Fourth Report and Order prohibit manufacturers 
from filing applications with the Commission for the certification of 
new models of 121.5 MHz ELTs. This prohibition should not create any 
new burden for manufacturers, however, because the Federal Aviation 
Administration's earlier cancellation of the Technical Standards Order 
(TSO) for 121.5 MHz ELTs already prohibits them from seeking such 
certifications. In addition, after a six-month transition period, no 
entity may manufacture, import or sell 121.5 MHz ELTs. This rule change 
does not directly impose any requirements on aircraft owners or pilots 
or other users of 121.5 MHz ELTs, but as a consequence of the rules 
adopted in the Fourth Report and Order, after the specified transition 
period, a user of a 121.5 MHz ELT that has reached the end of its 
useful life will be required to purchase a 406 MHz ELT rather than 
another 121.5 MHz ELT to replace it. Although some commenters expressed 
concern regarding the cost of 406 MHz ELTs, based on cost estimates 
exceeding $2,500 per aircraft, we believe that the price of 406 MHz 
ELTs has dropped significantly in the period after those cost estimates 
were derived, and that 406 MHz ELTs are now available at a cost of $600 
or less per aircraft. In the IRFA accompanying the Third FNPRM, the 
Commission specifically identified each of the above rule amendments as 
potentially affecting reporting, recordkeeping and other compliance 
requirements, and specifically requested comment on the economic impact 
of these changes.
    34. The RFA requires an agency to describe any significant 
alternatives that it has considered in developing its approach, which 
may include the following four alternatives (among others): ``(1) the 
establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance and reporting requirements under the rule for such small 
entities; (3) the use of performance rather than design standards; and 
(4) an exemption from coverage of the rule, or any part thereof, for 
such small entities.''
    35. We believe that the decision in the Fourth Report and Order to 
prohibit certification of 121.5 MHz ELTs should not have an impact on 
small entities, including manufacturers, because the Federal Aviation 
Administration's May 2012 cancellation of its Technical Standard Order 
(TSO) for 121.5 MHz ELTs, TSO C-91a, already precludes approval of any 
new models of 121.5 MHz ELTs.
    36. To minimize the economic impact on small entities of the 
decision in the Fourth Report and Order to prohibit the manufacture, 
importation and sale of 121.5 MHz ELTs, we provide for a six-month 
transition period. That is, the prohibition will not take effect until 
six months after the effective date of the Fourth Report and Order. The 
record indicates that this six-month transition period is more than 
sufficient to ensure that manufacturers and distributors of 121.5 MHz 
ELTs do not experience stranded inventory. In addition, the economic 
impact of these prohibitions on aircraft owners and pilots is minimized 
by the fact that we are not prohibiting the continued use of installed 
121.5 MHz ELTs, and we are not prohibiting the manufacture, importation 
or sale of replacement parts for those 121.5 MHz ELTs.
    37. Paperwork Reduction Act. This document does not contain new or 
modified information collection requirements subject to the Paperwork 
Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, 
it does not contain any new or modified information collection burden 
for small business concerns with fewer than 25 employees, pursuant to 
the Small Business Paperwork Relief Act of 2002, Public Law 107-198.
    38. Congressional Review Act. The Commission will send a copy of 
this Fourth Report and Order to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act.
    39. Ordering Clauses. Accordingly, it is ordered that, pursuant to 
sections 4(i), 4(j), 303(b), 303(r) and 332(a) of the Communications 
Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303(b) 303(r), and 
332(a), this Fourth Report and Order is hereby adopted.
    40. It is further ordered that the stay of the amendment to Sec.  
87.195 of the Commission's Rules adopted in the Third Report and Order 
in this proceeding is lifted, and the amendment to Sec.  87.195 of the 
Commission's Rules adopted in the Third Report and Order is superseded 
by the amendment to Sec.  87.195 of the Commission's Rules adopted in 
this Fourth Report and Order, effective 30 days after publication in 
the Federal Register.
    41. It is further ordered that part 87 of the Commission's Rules is 
amended as set forth in the Final Rules section, effective 30 days 
after publication in the Federal Register.
    42. It isfurther ordered that the Commission shall send a copy of 
the Fourth Report and Order in a report to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act, see 5 
U.S.C. 801(a)(1)(A).
    43. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of the Fourth Report and Order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.
    44. It is further ordered that this proceeding is terminated 
pursuant to section 4(i) and 4(j) of the Communications Act, 47 U.S.C. 
154(i) and (j).

[[Page 63812]]

List of Subjects in 47 CFR Part 87

    Aviation communications, Equipment.

Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer, Office of the Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 87 as follows:

PART 87--AVIATION SERVICES

0
1. The authority citation for part 87 continues to read as follows:

    Authority:  47 U.S.C. 154, 303 and 307(e), unless otherwise 
noted.


0
2. Section 87.147 is amended by revising paragraph (b) to read as 
follows:


Sec.  87.147  Authorization of equipment.

* * * * *
    (b) ELTs manufactured after October 1, 1988, must meet the output 
power characteristics contained in Sec.  87.141(i). A report of the 
measurements must be submitted with each application for certification. 
ELTs that meet the output power characteristics of the section must 
have a permanent label prominently displayed on the outer casing state, 
``Meets FCC Rule for improved satellite detection.'' This label, 
however, must not be placed on the equipment without authorization to 
do so by the Commission. Application for such authorization may be made 
either by submission of a new application for certification accompanied 
by the required fee and all information and test data required by parts 
2 and 87 of this chapter or, for ELTs approved prior to October 1, 
1988, a letter requesting such authorization, including appropriate 
test data and a showing that all units produced under the original 
equipment authorization comply with the requirements of this paragraph 
without change to the original circuitry.
* * * * *

0
3. Effective January 11, 2019, the stay of Sec.  87.195 is lifted and 
the section is revised to read as follows:


Sec.  87.195  121.5 MHz ELTs.

    ELTs that operate only on frequency 121.5 MHz will no longer be 
certified. The manufacture, importation, and sale of ELTs that operate 
only on frequency 121.5 MHz is prohibited beginning July 10, 2019. 
Existing ELTs that operate only on frequency 121.5 MHz must be operated 
as certified.

[FR Doc. 2018-26413 Filed 12-11-18; 8:45 am]
 BILLING CODE 6712-01-P
Federal Register / Vol. 83, No. 238 / Wednesday, December 12, 2018 / Rules and Regulations 63809

inventory. The record indicates that Based on staff review of publicly our rules to prohibit the manufacture,
manufacturers, distributors, and available information, we believe that importation, or sale of 121.5 MHz ELTs,
retailers do not have significant on-the- 406 MHz ELTs are now available for less beginning six months from the effective
shelf inventories of 121.5 MHz ELTs than $600. Commenters who oppose the date of this Fourth Report and Order.27
due to battery life issues. proposed prohibitions have not offered 22. Use. After reviewing the record
18. The Aviation Suppliers any information to quantify costs to the and the relevant statutory authority, we
Association (ASA) does not dispute that GA community from prohibiting the do not adopt a prohibition on the
existing inventories can be depleted manufacture, importation, or sale of continued use of existing 121.5 MHz
quickly, but argues that prohibiting the 121.5 MHz ELTs. Consequently, we are ELTs. Some commenters favor
sale of 121.5 MHz ELTs would work an not persuaded by unsubstantiated prohibiting the use of 121.5 MHz ELTs
unconstitutional taking of property claims that costs to GA aircraft owners based on the same considerations that
under the Fifth Amendment by and pilots resulting from the removal of underlie their support for the
rendering distributors’ inventory of 121.5 MHz ELTs from the market would Commission’s proposals to prohibit the
121.5 MHz ELTs worthless. The hinder them from investing in other manufacture, importation, and sale of
Supreme Court has established a three- equipment or measures that would 121.5 MHz ELTs, albeit after a longer
part test for determining whether a make more efficient use of this spectrum transition period to minimize the cost
regulatory taking has occurred, in which and better promote aviation safety. burden on the GA community. NTIA
a court will consider (1) the economic 20. Nor do we agree that prohibiting recommends a transition period of eight
impact of the regulation on the the manufacture, importation, and sale years before the use of 121.5 MHz ELTs
claimant, (2) the extent to which the of 121.5 MHz ELTs is unnecessary is prohibited, while others advocate
regulation interferes with the claimant’s because a transition to 406 MHz ELTs shorter grandfathering periods.
investment-backed expectations, and (3) will occur naturally over time without 23. Those who oppose a prohibition
the character of the government Commission intervention. That a on the use of 121.5 MHz ELTs, even if
regulation or action. There is no migration would occur eventually does accomplished gradually and with
evidence in the record to suggest that not justify inaction, when the modest grandfathering protections, argue that it
these criteria have been met. Moreover, action that we are taking here should would impose costs on the GA
ASA does not cite, and we are otherwise expedite the changes to the nature of community that outweigh the benefits;
are not aware of, any authority for the this service that we have determined, that it is unnecessary because a
proposition that prohibiting the sale of pursuant to section 303(b), will transition to exclusive use of 406 MHz
legacy devices, particularly following a maximize the efficient use of spectrum ELTs will occur naturally over time; and
transition period, constitutes a Fifth and best serve the public interest, that requiring users of 121.5 MHz ELTs
Amendment regulatory taking. Phasing convenience, and necessity. Similarly, to upgrade to 406 MHz ELTs by a
in prohibitions such as the ones adopted in considering whether this action in specified deadline would foreclose them
herein is a common and necessary managing the spectrum will promote the from investing in other equipment and
approach where the Commission has safety of life and property, as required measures that would better promote
determined that ongoing use of legacy by section 332(a), we find that it would aviation safety. While these are
devices will be incompatible with disserve the public interest to take a generally the same arguments that these
changes in spectrum use mandated by slower path than the one we have parties raise against prohibiting the
the public interest, and operates to chosen here. Moreover, for the reasons manufacture, importation, and sale of
mitigate the ‘‘economic impact’’ of the discussed below, we have determined 121.5 MHz ELTs, the record indicates
governmental regulatory action. that imposing a direct ban on licensee that these parties’ greatest concern is
19. It also does not appear that use of 121.5 MHz ELTs would be with prohibiting the use of 121.5 MHz
removing 121.5 MHz ELTs from the unlikely to produce a substantially ELTs, and that they are most strongly
marketplace will impose significant quicker transition to 406 MHz ELT use. opposed to the adoption of a rule that
costs on users in terms of a future price Accordingly, we impose this phased-in might require GA aircraft owners to
differential between 406 MHz ELTs and prohibition on the manufacture, replace 121.5 MHz ELTs before the end
121.5 MHz ELTs. The only responsive importation, and sale of 121.5 ELTs to
data to the Commission’s request for fulfill our statutory responsibilities 27 ACR also favors a one-year phase-out of the sale

‘‘specific data on the costs of purchasing effectively. and installation of replacement batteries, and an
immediate prohibition on the manufacture and
and installing a 406 MHz ELT’’ suggests 21. Commenters who favor importation of battery packs, replacement parts, and
that the price differential between 406 prohibiting the manufacture, on-field servicing of 121.5 MHz ELTs. In the 3rd
MHz ELTs and 121.5 MHz ELTs has importation, and sale of 121.5 MHz FNPRM, the Commission stated that it was ‘‘not
decreased significantly in the last few ELTs support a transition period of one proposing any prohibition or restriction on the
years, and will decrease further: In year (as proposed in the 3rd FNPRM) or manufacture, sale, or installation of replacement
components, such as batteries, for 121.5 MHz ELTs
2010, the FAA estimated the average less. We believe that, at this juncture, a in use [because] . . . permitting the continued
cost of a 406 MHz ELT to be more than six-month transition period strikes a marketing of replacement components for 121.5
$2,500, but comments submitted in reasonable compromise in accelerating MHz ELTs does not present the same concerns, and
2013 indicate that the price had already the removal of 121.5 MHz ELTs from the would not delay the transition to 406 MHz ELTs to
the same extent, as permitting the continued
dropped to less than half of that.26 stream of commerce while avoiding marketing of stand-alone 121.5 MHz ELTs.’’ The
undue hardship to manufacturers, Commission also invited comment on this issue,
26 ACK states that commenters opposing the importers, vendors, and users of the however. We decline to prohibit the manufacture,
Commission’s proposals rely on outdated FAA data devices. Manufacturers, importers, importation, sale, or installation of replacement
estimating the average cost of a 406 MHz ELT at components for 121.5 MHz ELTs both for the
vendors, and users have been on notice
amozie on DSK3GDR082PROD with RULES

$2,800, and that retail costs of GPS-capable 406 reasons stated in the 3rd FNPRM and because we
MHz ELTs have fallen to as low as $550. It adds for many years that 121.5 MHz ELTs believe that such action would be inconsistent with
that a complete new installation, including parts would have a diminishing role in our decision to permit the continued use of 121.5
and labor, would cost between $830 and $1,100. avionics, and it appears that there is MHz ELTs, as discussed below. If the continuing
ELTech says that 406 MHz ELTs are now available availability of replacement parts for 121.5 MHz
for between $600 and $1600, with an additional
currently very little manufacturing or ELTs appears to be frustrating our goal of speeding
$250 to $400 in labor costs for installation. ELTech sales activity involving 121.5 MHz the transition to 406 MHz ELTs, we may revisit this
Comments at 3. ELTs. We therefore amend § 87.195 of issue.

VerDate Sep<11>2014 16:25 Dec 11, 2018 Jkt 247001 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 E:\FR\FM\12DER1.SGM 12DER1
Federal Register / Vol. 83, No. 238 / Wednesday, December 12, 2018 / Rules and Regulations 63811

(except satellite),’’ which is 1,500 or specified transition period, a user of a not prohibiting the manufacture,
fewer employees. Census data for 2012 121.5 MHz ELT that has reached the end importation or sale of replacement parts
shows that there were 967 firms in that of its useful life will be required to for those 121.5 MHz ELTs.
category that operated for the entire purchase a 406 MHz ELT rather than 37. Paperwork Reduction Act. This
year. Of those 967, 955 had fewer than another 121.5 MHz ELT to replace it. document does not contain new or
1,000 employees, and 12 firms had Although some commenters expressed modified information collection
1,000 or more employees. Thus, under concern regarding the cost of 406 MHz requirements subject to the Paperwork
this category and the associated small ELTs, based on cost estimates exceeding Reduction Act of 1995 (PRA), Public
business size standard, the majority of $2,500 per aircraft, we believe that the Law 104–13. In addition, therefore, it
firms can be considered small. price of 406 MHz ELTs has dropped does not contain any new or modified
32. Some of the rules adopted herein significantly in the period after those information collection burden for small
may also affect small businesses that cost estimates were derived, and that business concerns with fewer than 25
manufacture aviation radio equipment. 406 MHz ELTs are now available at a employees, pursuant to the Small
The Census Bureau does not have a cost of $600 or less per aircraft. In the Business Paperwork Relief Act of 2002,
category specific to aviation radio IRFA accompanying the Third FNPRM, Public Law 107–198.
equipment manufacturers. The the Commission specifically identified
appropriate category is that for wireless each of the above rule amendments as 38. Congressional Review Act. The
communications equipment potentially affecting reporting, Commission will send a copy of this
manufacturers. The Census Bureau recordkeeping and other compliance Fourth Report and Order to Congress
defines this category as follows: ‘‘This requirements, and specifically requested and the Government Accountability
industry comprises establishments comment on the economic impact of Office pursuant to the Congressional
primarily engaged in manufacturing these changes. Review Act.
radio and television broadcast and 34. The RFA requires an agency to 39. Ordering Clauses. Accordingly, it
wireless communications equipment. describe any significant alternatives that is ordered that, pursuant to sections 4(i),
Examples of products made by these it has considered in developing its 4(j), 303(b), 303(r) and 332(a) of the
establishments are: Transmitting and approach, which may include the Communications Act of 1934, as
receiving antennas, cable television following four alternatives (among amended, 47 U.S.C. 154(i), 154(j), 303(b)
equipment, GPS equipment, pagers, others): ‘‘(1) the establishment of 303(r), and 332(a), this Fourth Report
cellular phones, mobile differing compliance or reporting and Order is hereby adopted.
communications equipment, and radio requirements or timetables that take into
40. It is further ordered that the stay
and television studio and broadcasting account the resources available to small
of the amendment to § 87.195 of the
equipment.’’ The SBA has developed a entities; (2) the clarification,
Commission’s Rules adopted in the
small business size standard for Radio consolidation, or simplification of
Third Report and Order in this
and Television Broadcasting and compliance and reporting requirements
proceeding is lifted, and the amendment
Wireless Communications Equipment under the rule for such small entities;
to § 87.195 of the Commission’s Rules
Manufacturing, which is: All such firms (3) the use of performance rather than
adopted in the Third Report and Order
having 750 or fewer employees. design standards; and (4) an exemption
According to Census bureau data for from coverage of the rule, or any part is superseded by the amendment to
2012, there were a total of 841 firms in thereof, for such small entities.’’ § 87.195 of the Commission’s Rules
this category that operated that year. Of 35. We believe that the decision in the adopted in this Fourth Report and
this total, 828 had fewer than 1,000 Fourth Report and Order to prohibit Order, effective 30 days after
employees and 13 had 1,000 or more certification of 121.5 MHz ELTs should publication in the Federal Register.
employees. Thus, under this size not have an impact on small entities, 41. It is further ordered that part 87
standard, the majority of firms can be including manufacturers, because the of the Commission’s Rules is amended
considered small. Federal Aviation Administration’s May as set forth in the Final Rules section,
33. The rule changes adopted in the 2012 cancellation of its Technical effective 30 days after publication in the
Fourth Report and Order do not impose Standard Order (TSO) for 121.5 MHz Federal Register.
any new reporting or recordkeeping ELTs, TSO C–91a, already precludes 42. It isfurther ordered that the
requirements on any entity. The rule approval of any new models of 121.5 Commission shall send a copy of the
changes in the Fourth Report and Order MHz ELTs. Fourth Report and Order in a report to
prohibit manufacturers from filing 36. To minimize the economic impact Congress and the Government
applications with the Commission for on small entities of the decision in the Accountability Office pursuant to the
the certification of new models of 121.5 Fourth Report and Order to prohibit the Congressional Review Act, see 5 U.S.C.
MHz ELTs. This prohibition should not manufacture, importation and sale of 801(a)(1)(A).
create any new burden for 121.5 MHz ELTs, we provide for a six-
manufacturers, however, because the month transition period. That is, the 43. It is further ordered that the
Federal Aviation Administration’s prohibition will not take effect until six Commission’s Consumer and
earlier cancellation of the Technical months after the effective date of the Governmental Affairs Bureau, Reference
Standards Order (TSO) for 121.5 MHz Fourth Report and Order. The record Information Center, shall send a copy of
ELTs already prohibits them from indicates that this six-month transition the Fourth Report and Order, including
seeking such certifications. In addition, period is more than sufficient to ensure the Final Regulatory Flexibility
after a six-month transition period, no that manufacturers and distributors of Analysis, to the Chief Counsel for
entity may manufacture, import or sell 121.5 MHz ELTs do not experience Advocacy of the Small Business
amozie on DSK3GDR082PROD with RULES

121.5 MHz ELTs. This rule change does stranded inventory. In addition, the Administration.
not directly impose any requirements on economic impact of these prohibitions 44. It is further ordered that this
aircraft owners or pilots or other users on aircraft owners and pilots is proceeding is terminated pursuant to
of 121.5 MHz ELTs, but as a minimized by the fact that we are not section 4(i) and 4(j) of the
consequence of the rules adopted in the prohibiting the continued use of Communications Act, 47 U.S.C. 154(i)
Fourth Report and Order, after the installed 121.5 MHz ELTs, and we are and (j).

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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		Rules and Regulations
Action		Final rule; lifting of stay.
Dates		The rule is effective January 11, 2019. The stay of Sec. 87.195 is lifted effective January 11, 2019.
Contact		Jeffrey Tobias, [email protected], Wireless Telecommunications Bureau, (202) 418-1617, or TTY (202) 418- 7233.
FR Citation		83 FR 63806
CFR Associated		Aviation Communications and Equipment