[Federal Register: August 14, 2008 (Volume 73, Number 158)]
[Rules and Regulations]
[Page 47550-47559]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14au08-8]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 10
[PS Docket No. 07-287; FCC 08-164]
Commercial Mobile Alert System
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission or FCC) complies with section 602(c) of the Warning, Alert
and Response Network (WARN) Act by adopting rules that require non-
commercial educational (NCE) and public broadcast television station
licensees and permittees to install equipment and technologies that
will provide these licensees/permittees with the ability to enable the
distribution of geo-targeted Commercial Mobile Alert System (CMAS)
alerts to participating Commercial Mobile Service (CMS)
[[Page 47551]]
providers. The Commission's stated goal is to implement section 602(c)
in a manner consistent with the CMAS architecture and technologically
neutral rules the Commission adopted in the CMAS First Report and
Order. In this document, the Commission also complies with section
602(f) of the WARN Act by adopting rules requiring technical testing
for commercial mobile service providers that elect to transmit
emergency alerts and for the devices and equipment used by such
providers for transmitting such alerts.
DATES: Effective October 14, 2008, except for Sec. 10.350 (a)(7) and
(b), which contain new or modified information collection requirements
that have not been approved by OMB. After OMB has approved them, the
Commission will publish a document in the Federal Register announcing
the effective date.
FOR FURTHER INFORMATION CONTACT: Jeffery Goldthorp, Communications
Systems Analysis Division, Public Safety and Homeland Security Bureau,
Federal Communications Commission at (202) 418-1096.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's CMAS
Second Report and Order in PS Docket No. 07-287, adopted and released
on July 8, 2008. The complete text of this document is available for
inspection and copying during normal business hours in the FCC
Reference Information Center, Portals II, 445 12th Street, SW., Room
CY-A257, Washington, DC 20554. This document may also be purchased from
the Commission's duplicating contractor, Best Copy and Printing, Inc.,
in person at 445 12th Street, SW., Room CY-B402, Washington, DC 20554,
via telephone at (202) 488-5300, via facsimile at (202) 488-5563, or
via e-mail at FCC@BCPIWEB.COM. Alternative formats (computer diskette,
large print, audio cassette, and Braille) are available to persons with
disabilities by sending an e-mail to FCC504@fcc.gov or calling the
Consumer and Governmental Affairs Bureau at (202) 418-0530, TTY (202)
418-0432. This document is also available on the Commission's Web site
at http://www.fcc.gov.
Synopsis of the Order
1. Section 602(c) requires the Commission to require ``licensees
and permittees of noncommercial educational broadcast stations or
public broadcast stations (as those terms are defined in section 397(6)
of the Communications Act of 1934 (47 U.S.C. 397(6))) to install
necessary equipment and technologies on, or as part of, any broadcast
television digital signal transmitter * * * '' Section 397(6) of the
Communications Act defines the terms ``noncommercial educational
broadcast station'' and ``public broadcast station'' to mean a
television or radio broadcast station which: (1) Under the rules and
regulations of the Commission in effect on November 2, 1978, is
eligible to be licensed by the Commission as a noncommercial
educational radio or television broadcast station and which is owned
and operated by a public agency or nonprofit private foundation,
corporation, or association; or (2) is owned and operated by a
municipality and which transmits only noncommercial programs for
education purposes.
2. In the CMAS NPRM (73 FR 546, January 3, 2008) the Commission
sought comment on the scope of section 602(c). The Commission noted
that although the caption of section 602(c) refers to digital
television transmissions, it mandates that the Commission impose any
equipment requirements on licensees and permittees of NCE and public
broadcast stations as those terms are defined under section 397(6) of
the Communications Act. That provision references both radio and
television broadcast stations. The Commission sought comment on this
definition as it relates to section 602(c) of the WARN Act, and further
asked whether it was a fair reading of the language to conclude that
this section applies only to licensees and permittees of NCE and public
broadcast television stations. The Association of Public Television
Stations (APTS) noted in its comments that datacasting and the
equipment required for it depends on the ``unique capabilities of
digital television,'' and that accordingly, the section applies only to
digital television transmission. DataFM asserted that section 602(c)
requires installation of equipment at all NCE and public broadcast
stations.
3. The Commission concluded that Congress intended the equipment
requirements set forth in section 602(c) of the WARN Act to apply only
to licensees and permittees of NCE and public broadcast television
stations and not radio stations. Section 602(c) requires that the
Commission complete a proceeding to require licensees and permittees of
NCE or public broadcast stations to install necessary equipment and
technologies ``on, or as part of, any broadcast television digital
signal transmitter'' (emphasis added) to enable the distribution of
geographically targeted alerts by CMS providers. This language clearly
shows that Congress intended that these equipment requirements apply
only to NCE and public broadcast television stations. The use of the
term ``any'' indicates that if a station lacks a television
transmitter--e.g., if the station is a radio broadcast station--there
is no installation requirement. Additionally, APTS has indicated that
its ability to perform the functions contemplated by section 602(c),
enabling the distribution of geographically targeted alerts by
participating CMS providers, is dependent on capabilities unique to
digital television. For these reasons, the Commission disagreed with
DataFM's conclusion that section 602(c) requires installation of
equipment at all NCE and public broadcast stations.
Section 602(c)--Necessary Equipment to Support CMS Provider Geo-
Targeting
4. In the CMAS NPRM the Commission sought comment regarding the
equipment required by section 602(c) of the WARN Act. Specifically, the
Commission asked how this digital television-based system would
interface with the CMAS. The Commission also asked how the requirement
regarding the geo-targeting of CMAS alerts would fit into a centrally
administered CMAS as envisioned by the Commercial Mobile Service Alert
Advisory Committee (CMSAAC). Further, the Commision sought comment
regarding how the digital television-based system would implement the
message formats defined by the ``C'' interface.
5. Apart from APTS, no commenters addressed the specific type of
equipment that would need to be installed to satisfy section 602(c) of
the WARN Act. In its comments and reply comments, APTS argued that by
including section 602(c) in the WARN Act, Congress required that
datacasting, and the equipment necessary for its implementation, be
part of the CMAS. APTS further noted that datacasting equipment would
not be inconsistent with the CMAS as recommended by the CMSAAC, but
rather would be ``one component of a comprehensive alert and warning
system that includes necessary redundancies to ensure that the public
receives essential information under any circumstances.'' Such
redundancies, argued APTS, would enhance the effectiveness and security
of the CMAS.
6. APTS listed four types of equipment it says NCE/public broadcast
television stations would need to install in order to transmit geo-
targeted alerts to participating CMS providers. In listing this
equipment, APTS contemplated that the Public Broadcasting System (PBS)
would receive CMAS alerts directly from the Alert Gateway and transmit
the CMAS
[[Page 47552]]
alert data via national satellite feed to NCE/public broadcast
television stations. NCE/public broadcast television stations would
then transmit the geo-targeted CMAS alerts via their digital television
transmitters to CMS Provider Gateways located in their television
service areas, providing a redundant, alternate method of delivery of
CMAS alerts to CMS Provider Gateways. APTS described the equipment
needed as follows:
``Geo-targeting Systems.'' According to APTS, this
equipment would have the capability to activate those NCE and public
broadcast digital television transmitters necessary to transmit the
CMAS alert to areas in which CMS Provider Gateways are located, while
all other NCE and public broadcast digital television transmitters
would ignore the CMAS alert transmission.
``Groomers.'' APTS stated that this equipment (also
referred to as ``dynamic bitrate capability'') would automatically
adjust a selected program service's video bitrate to make room for CMAS
alert data when those data are present. APTS stated that such a
capability would allow the licensee to have full use of its
transmission capability when CMAS alert data are not present. APTS
argued that installation of this equipment is necessary for each
licensee's master control (with redundancy) as well as at each
licensee's remote transmitter sites (also with redundancy).
``Data Receivers.'' APTS asserted that this equipment is
necessary for the stations to receive the CMAS data from PBS. APTS
proposed that each master control and each remote transmitter have
redundant receivers. APTS also proposed that small satellite receive
antennas be installed for each remote transmitter should the licensee's
data distribution via its studio-to-transmitter links be unavailable.
PBS Equipment. Additionally, according to APTS, PBS will
require equipment to route the CMAS data around its other functions.
APTS reported that PBS will receive the CMAS data from appropriate
origination point(s), process and bridge the data around the master
control systems, and transmit the data via satellite to all licensees,
remote transmitters, and other selected receive locations. APTS stated
that PBS will install redundant systems at both its main Network
Operations Center (NOC) and its Disaster Recover Site (DRS), as well as
install both data security and physical security at both locations.
Back-up Power Equipment. Finally, APTS recommended that
licensees of NCE and public broadcast television stations be required
to install back-up power equipment.
7. In order for NCE/public broadcast television station licensees/
permittees to enable geo-targeting by participating CMS providers, they
must be able to interface with the CMAS in a manner consistent with the
rules adopted in the CMAS First Report and Order (73 FR 43099, July 24,
2008). According to the Commission, the most appropriate way for them
to do this would be to install equipment that will allow them to
receive CMAS alerts from the Alert Gateway over an interface and then
to transmit such alerts to participating CMS providers. Under such an
approach, licensees and permittees of NCE/public broadcast television
stations would provide a redundant path by which participating CMS
providers could receive geo-targeted alerts. Accordingly, the
Commission required licensees and permittees of NCE/public broadcast
television stations to install necessary equipment and technologies at,
or as part of, their digital television transmitters that will provide
them with the capability to receive CMAS alerts sent from the Alert
Gateway over a secure interface and to transmit the alerts to the CMS
Provider Gateways of participating CMS providers.
8. As noted above, APTS contemplated that licensees and permittees
of NCE/public broadcast television stations will use datacasting
technology to receive and deliver CMAS alerts to participating CMS
providers. While the Commission believed that datacasting technology
and the associated equipment described above is one way of meeting this
requirement, it did not want to foreclose other DTV transmitter-based
technologies that may exist in the future. Accordingly, in keeping with
the technologically neutral policy articulated in the CMAS First Report
and Order, the Commission's rules will allow, but not require, the use
of datacasting to fulfill the requirements of section 602(c) and the
Commission's rules, as long as NCE and public broadcast television
station licensees and permittees do so in a manner consistent with the
Commission's CMAS rules, including the CMAS architecture previously
adopted in the CMAS First Report and Order. The Commission also
recognized APTS's proposed use of datacasting assumes that PBS will
provide a feed from the Alert Gateway to the NCE/public broadcast
station digital television transmitters and associated receivers. For
purposes of this Order, the Commission assumed that PBS or a similarly
situated entity will provide the interface feed between the Alert
Gateway and the NCE/public broadcast television stations. PBS or a
similarly situated entity must work with the Alert Gateway
Administrator to establish the necessary interface by which CMAS alerts
will be sent to NCE and public broadcast television stations.
9. The Commission further noted that section 606(b) of the WARN Act
provides that NCE and public broadcast station licensees and permittees
shall be compensated by the Assistant Secretary of Commerce for
Communications and Information for reasonable costs incurred in
complying with the requirements imposed pursuant to section 602(c) of
the WARN Act. The Commission noted that some, if not all, NCE and
public broadcast television stations may need this funding to comply
with the equipment requirements the Commission adopted in the CMAS
Second Report and Order. Accordingly, the Commission required NCE and
public broadcast television station licensees and permittees to install
the required equipment no later than 18 months from the date of receipt
of the funding permitted under section 606(b) of the WARN Act or 18
months from the effective date of these rules, whichever is later. The
Commission concluded that this should give NCE and public broadcast
television stations adequate time to obtain any necessary funding,
determine the specific equipment needed and acquire and install that
equipment.
10. According to the Commission, this approach satisfies section
602(c) and serves the public interest in that it requires NCE and
public broadcast television station licensees and permittees to install
necessary equipment on, or as part of, their digital television
transmitters to enable geo-targeting by participating CMS providers.
The Commission concluded that its approach also ensures that NCE and
public broadcast television station licensees and permittees fulfill
this requirement in a way that complements the CMAS architecture
envisioned by the CMSAAC and rules the Commission adopted in the CMAS
First Report and Order. In adopting these rules in this Second Report
and Order, the Commission provides participating CMS providers with a
redundant, alternate distribution path by which they may choose to
receive geo-targeted CMAS alerts from the Alert Gateway. As such, this
action will provide an increased level of redundancy to the CMAS
architecture.
Section 602(f)--Testing
11. Section 602(f) of the WARN Act states that the Commission
``shall
[[Page 47553]]
require by regulation technical testing for commercial mobile service
providers that elect to transmit emergency alerts and for the devices
and equipment used by such providers for transmitting such alerts.'' In
the CMAS NPRM, the Commission sought comment on what type of testing
regime the Commission should require. The Commission noted that the
CMSAAC proposed that, in order to assure the reliability and
performance of this new system, certain procedures for logging CMAS
alerts at the Alert Gateway and for testing the system at the Alert
Gateway and on an end-to-end basis should be implemented. The
Commission sought comment on these proposed procedures, and asked
whether they satisfied the requirements of section 602(f) of the WARN
Act. The Commission also sought comment on whether there should be some
form of testing of the CMAS that sends test messages to the mobile
device and the subscriber. The Commission noted that it had a testing
regime in place for the Emergency Alert System (EAS), and asked whether
the EAS testing rules offered a model for CMAS testing. The Commission
noted that in the EAS rules, internal system tests are combined with
tests that are heard (or in some cases seen) by the public, and asked
whether some similar form of test that alerts the public should be
required for the CMAS. The Commission asked how subscribers should be
made aware of such tests if testing were to involve subscribers.
12. Commenters generally supported the testing regime recommended
by the CMSAAC. They did not object to testing during development and
internal testing, and assumed that some sort of logging of results will
be part of the ultimate testing process. For example, the California
Public Utilities Commission (CAPUC) supported the recommendations of
the CMSAAC and endorsed thorough testing before deployment. Similarly,
the National Emergency Numbering Association (NENA) endorsed testing
and noted that there needs to be ample time devoted to testing the CMAS
before its deployment. According to the Wireless RERC, there is a need
to develop a thorough testing regime to ensure that the CMAS will be
accessible and inclusive of all people, including those with
disabilities and those who do not speak English.
13. Although all parties that commented on the testing issue agree
that a thorough testing regime is essential for an effective CMAS, the
parties differ regarding the timing of tests, or whether testing should
affect end-users. For example, T-Mobile, Nokia, and Alltel all
supported testing, but recommended that the Commission follow the
CMSAAC recommendations that end-to-end testing be defined as testing
between the Alert initiator and the Alert Gateway, and that there be no
testing that involves the end-user. According to Nokia, end-user
testing would cause unnecessary network use and would result in
customer confusion. AT&T agreed that any CMAS testing regime should
follow the CMSAAC recommendations and asserted that ``the EAS testing
rules do not provide an effective model for testing the CMAS.'' In its
reply comments, Interstate Wireless supported testing to end-user
``test units.'' Similarly, by supporting the EAS testing regime as a
model for testing the CMAS, CAPUC inherently supported testing to end-
users. CellCast recommended a separate rulemaking for testing, and
believes that testing to the end-user is appropriate. In its reply
comments, CellCast also recommended that the Commission adopt a monthly
end-to-end testing requirement.
14. In ex parte comments submitted on May 23, 2008, CTIA submitted
a proposal for testing requirements that were developed together with
Alltel, AT&T, Sprint Nextel, T-Mobile and Verizon Wireless. Under
CTIA's proposal, participating CMS providers would participate in
monthly testing of the CMAS system. The monthly test would be initiated
by the federally-administered Alert Gateway at a set day and time and
would be distributed through the commercial mobile service provider
infrastructure and by participating CMS providers over their networks.
Upon receipt of the test message, participating CMS providers would
have a 24-hour window to distribute the test message in their CMAS
coverage areas in a manner that avoids congestion or other adverse
effects on their networks. Under CTIA's proposal, mobile devices
supporting CMAS would not be required to support reception of the
required monthly test and participating CMS providers would not be
required to deliver required monthly tests to subscriber handsets, but
a participating CMS provider may provide mobile devices with the
capability for receiving these tests. CTIA's testing proposal also
featured regular testing from the ``C'' interface to ensure the ability
of the Federal Alert Gateway to communicate with the CMS Provider
Gateway.
15. The Commission agreed with the CMSAAC and most commenters that
periodic testing of all components of the CMAS, including the CMS
provider's components would serve the public interest and is consistent
with the WARN Act. Accordingly, as recommended by CTIA and several CMS
providers, the Commission will require each participating CMS provider
to participate in monthly testing of CMAS message delivery to the CMS
Provider Gateway and within the CMS providers' infrastructure. CMS
providers must receive these required monthly test messages and must
also distribute those test messages to their coverage area within 24
hours of receipt by the CMS Provider Gateway. CMS providers may
determine how this delivery will be accomplished and may stagger the
delivery of the required monthly test message over time and over
geographic subsets of their coverage area to manage the traffic loads
and accommodate maintenance windows. Participating CMS providers must
keep an automated log of required monthly test messages received by the
CMS Provider Gateway from the Federal Alert Gateway.
16. CMAS required monthly tests will be initiated only by the
Federal Alert Gateway Administrator using a defined test message; real
event codes and alert messages may not be used for test messages. A
participating CMS provider may forego these monthly tests if pre-empted
by actual alert traffic or in the event of unforeseen conditions in the
CMS provider's infrastructure, but shall indicate this condition by a
response code to the Federal Alert Gateway. The Commission will not
require that CMS providers make available mobile devices that support
reception of the required monthly test. The Commission will, however,
allow CMS providers to choose to do so. CMS providers that choose not
to make the required monthly test available to subscribers must find
alternate methods of ensuring that subscriber handsets will be able to
receive CMAS alert messages.
17. The Commision also adopted CTIA's recommendation that, in
addition to the required monthly test, there should be periodic testing
of the interface between the Federal Alert Gateway and each CMS
Provider Gateway to ensure the availability and viability of both
gateway functions. Additional periodic testing to ensure that the
Federal Alert Gateway is able to deliver CMAS alerts to the CMS
Provider Gateway will further strengthen the reliability of the CMAS.
CMS Provider Gateways must send an acknowledgement upon receipt of
these interface test messages. CMS providers must comply with these
testing requirements no later than the date of deployment of the CMAS,
which is the date that CMAS development is complete and the CMAS is
functional and capable of providing alerts to the public. All of these
testing requirements
[[Page 47554]]
are consistent with the testing procedures advocated by CTIA. The
Commission declined to adopt some of the specific testing requirements
that CTIA suggested, such as designating a specific day and time for
the required monthly test and defining the exact parameters and content
of the required monthly test, the expiration time for the required
monthly test, and specific details of the periodic tests of the
interface between the Federal Alert Gateway and participating CMS
Provider Gateways. Because the CMAS must still undergo significant
development and the Federal Alert Aggregator and Gateway have just
recently been identified, the Commission believed it would be premature
to adopt such specific testing requirements at this time.
Procedural Matters
A. Final Paperwork Reduction Act Analysis
18. This Second Report and Order adopts a new or revised
information collection requirement subject to the Paperwork Reduction
Act of 1995 (PRA), Public Law 104-13. This requirement will be
submitted to the Office of Management and Budget (OMB) for review under
section 3507 of the PRA. The Commission also will publish a separate
notice in the Federal Register inviting comment on the new or revised
information collection requirements adopted in this proceeding. The
requirement will not go into effect until OMB has approved it and the
Commission has published a notice announcing the effective date of the
information collection requirement. In addition, the Commission noted
that pursuant to the Small Business Paperwork Relief Act of 2002,
Public Law 107-198, see 44 U.S.C. 3506(c)(4), it will seek specific
comment on how the Commission might ``further reduce the information
collection burden for small business concerns with fewer than 25
employees.''
B. Report to Congress
19. The Commission will send a copy of the CMAS Second Report and
Order in a report to be sent to Congress and the Government
Accountability Office pursuant to the Congressional Review Act, see 5
U.S.C. 801(a)(1)(A).
Final Regulatory Flexibility Analysis
20. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the Notice of Proposed Rulemaking in PSHSB Docket 07-
287 (CMAS NPRM). The Commission sought written public comments on the
proposals in the CMAS NPRM, including comment on the IRFA. Comments on
the IRFA were to have been explicitly identified as being in response
to the IRFA and were required to be filed by the same deadlines as that
established in section IV of the CMAS NPRM for other comments to the
CMAS NPRM. The Commission sent a copy of the CMAS NPRM, including the
IRFA, to the Chief Counsel for Advocacy of the Small Business
Administration (SBA). In addition, the CMAS NPRM and IRFA were
published in the Federal Register. This present Final Regulatory
Flexibility Analysis (FRFA) conforms to the RFA.
21. Need for, and Objectives of, the Order. Section 602(c) of the
WARN Act requires the Commission to, ``[w]ithin 90 days after the date
on which the Commission adopts relevant technical standards based on
recommendations of the Commercial Mobile Service Alert Advisory
Committee . . . complete a proceeding to require licensees and
permittees of noncommercial educational broadcast stations or public
broadcast stations (as those terms are defined in section 397(6) of the
Communications Act of 1934 (47 U.S.C. 397(6))) to install necessary
equipment and technologies on, or as part of, any broadcast television
digital signal transmitter to enable the distribution of geographically
targeted alerts by commercial mobile service providers that have
elected to transmit emergency alerts under this section.'' Although the
CMAS NPRM solicited comment on issues related to section 602(a) (CMAS
Technical requirements) and 602(b) (CMS provider election to the CMAS),
this Second Report and Order only addresses issues raised by sections
602(c) and 602(f) of the WARN Act. Accordingly, this FRFA only
addressees the manner in which any commenters to the IRFA addressed the
Commission's adoption of rules regarding NCE and public television
licensee's installation of digital television transmission towers
retransmission equipment, as required by section 602(c) of the WARN
Act, and the Commission's adoption of rules for testing the CMAS as
required by section 602(f) of the WARN Act.
22. This Second Report and Order adopts further rules necessary to
enable CMS alerting capability for CMS providers who elect to transmit
emergency alerts to their subscribers. Specifically, the Order adopts
rules that require NCE and public television stations to install on, or
as part of, any broadcast television digital signal transmitter
equipment to enable the distribution of geographically targeted alerts
by commercial mobile service providers that have elected to transmit
CMAS alerts. This equipment will interface with the CMAS Alert Gateway
and enable the transmission of the national CMAS alert feed from the
CMAS Alert Gateway to all covered broadcast television digital towers.
As the Commission discussed in greater detail below, it is necessary
that NCE and public broadcast television stations install this
equipment to further enable the distribution of geographically targeted
alerts by CMS providers that participate in the CMAS. The installation
and operation of this equipment is consistent with the technologically
neutral requirements adopted in the CMAS First Report and Order.
23-24. Summary of Significant Issues Raised by Public Comments in
Response to the IRFA. There were no comments filed that specifically
addressed the IRFA. The only commenter that explicitly identified
itself as a small business was Interstate Wireless, Inc., whose
comments addressed only the technical requirements and protocols
relevant to section 602(a) of the WARN Act. Interstate Wireless Inc.'s
comments were addressed in the CMAS First Report and Order.
25. Description and Estimate of the Number of Small Entities to
Which Rules Will Apply. The RFA directs agencies to provide a
description of, and, where feasible, an estimate of, the number of
small entities that may be affected by the rules adopted herein. The
RFA generally defines the term ``small entity'' as having the same
meaning as the terms ``small business,'' ``small organization,'' and
``small governmental jurisdiction.'' In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act. A ``small business concern'' is one
which: (1) Is independently owned and operated; (2) is not dominant in
its field of operation; and (3) satisfies any additional criteria
established by the Small Business Administration (SBA).
26. Wireless Telecommunications Carriers (except Satellite). Since
2007, the SBA has recognized wireless firms within this new, broad,
economic census category. Prior to that time, the SBA had developed a
small business size standard for wireless firms within the now-
superseded census categories of ``Paging'' and ``Cellular and Other
Wireless Telecommunications.'' Under the present and prior categories,
the SBA has deemed a wireless business to be small if it has 1,500 or
fewer employees. Because Census Bureau data are not yet available for
the new
[[Page 47555]]
category, the Commission will estimate small business prevalence using
the prior categories and associated data. For the first category of
Paging, data for 2002 show that there were 807 firms that operated for
the entire year. Of this total, 804 firms had employment of 999 or
fewer employees, and three firms had employment of 1,000 employees or
more. For the second category of Cellular and Other Wireless
Telecommunications, data for 2002 show that there were 1,397 firms that
operated for the entire year. Of this total, 1,378 firms had employment
of 999 or fewer employees, and 19 firms had employment of 1,000
employees or more. Thus, using the prior categories and the available
data, the Commission estimates that the majority of wireless firms can
be considered small.
27. Cellular Radiotelephone Service. As noted, the SBA has
developed a small business size standard for small businesses in the
category ``Wireless Telecommunications Carriers (except satellite).''
Under that SBA category, a business is small if it has 1,500 or fewer
employees. Since 2007, the SBA has recognized wireless firms within
this new, broad, economic census category. Prior to that time, the SBA
had developed a small business size standard for wireless firms within
the now-superseded census categories of ``Paging'' and ``Cellular and
Other Wireless Telecommunications.'' Accordingly, the pertinent data
for this category is contained within the prior Wireless
Telecommunications Carriers (except Satellite) category. For the
category of Cellular and Other Wireless Telecommunications, data for
2002 show that there were 1,397 firms that operated for the entire
year. Of this total, 1,378 firms had employment of 999 or fewer
employees, and 19 firms had employment of 1,000 employees or more.
Thus, using the prior category and the available data, the Commission
estimated that the majority of wireless firms can be considered small.
28. Auctions. Initially, the Commission notes that, as a general
matter, the number of winning bidders that qualify as small businesses
at the close of an auction does not necessarily represent the number of
small businesses currently in service. Also, the Commission does not
generally track subsequent business size unless, in the context of
assignments or transfers, unjust enrichment issues are implicated.
29. Broadband Personal Communications Service. The broadband
Personal Communications Service (PCS) spectrum is divided into six
frequency blocks designated A through F, and the Commission has held
auctions for each block. The Commission has created a small business
size standard for Blocks C and F as an entity that has average gross
revenues of less than $40 million in the three previous calendar years.
For Block F, an additional small business size standard for ``very
small business'' was added and is defined as an entity that, together
with its affiliates, has average gross revenues of not more than $15
million for the preceding three calendar years. These small business
size standards, in the context of broadband PCS auctions, have been
approved by the SBA. No small businesses within the SBA-approved small
business size standards bid successfully for licenses in Blocks A and
B. There were 90 winning bidders that qualified as small entities in
the C Block auctions. A total of 93 ``small'' and ``very small''
business bidders won approximately 40 percent of the 1,479 licenses for
Blocks D, E, and F. On March 23, 1999, the Commission reauctioned 155
C, D, E, and F Block licenses; there were 113 small business winning
bidders. On January 26, 2001, the Commission completed the auction of
422 C and F PCS licenses in Auction 35. Of the 35 winning bidders in
this auction, 29 qualified as ``small'' or ``very small'' businesses.
Subsequent events concerning Auction 35, including judicial and agency
determinations, resulted in a total of 163 C and F Block licenses being
available for grant.
30. Narrowband Personal Communications Service. The Commission held
an auction for narrowband Personal Communications Service (PCS)
licenses that commenced on July 25, 1994, and closed on July 29, 1994.
A second commenced on October 26, 1994 and closed on November 8, 1994.
For purposes of the first two narrowband PCS auctions, ``small
businesses'' were entities with average gross revenues for the prior
three calendar years of $40 million or less. Through these auctions,
the Commission awarded a total of forty-one licenses, 11 of which were
obtained by four small businesses. To ensure meaningful participation
by small business entities in future auctions, the Commission adopted a
two-tiered small business size standard in the Narrowband PCS Second
Report and Order. A ``small business'' is an entity that, together with
affiliates and controlling interests, has average gross revenues for
the three preceding years of not more than $40 million. A ``very small
business'' is an entity that, together with affiliates and controlling
interests, has average gross revenues for the three preceding years of
not more than $15 million. The SBA has approved these small business
size standards. A third auction commenced on October 3, 2001 and closed
on October 16, 2001. Here, five bidders won 317 (MTA and nationwide)
licenses. Three of these claimed status as a small or very small entity
and won 311 licenses.
31. Wireless Communications Service. This service can be used for
fixed, mobile, radiolocation, and digital audio broadcasting satellite
uses in the 2305-2320 MHz and 2345-2360 MHz bands. The Commission
defined ``small business'' for the wireless communications service
(WCS) auction as an entity with average gross revenues of $40 million
for each of the three preceding years, and a ``very small business'' as
an entity with average gross revenues of $15 million for each of the
three preceding years. The SBA has approved these definitions. The
Commission auctioned geographic area licenses in the WCS service. In
the auction, which commenced on April 15, 1997 and closed on April 25,
1997, there were seven bidders that won 31 licenses that qualified as
very small business entities, and one bidder that won one license that
qualified as a small business entity.
32. 700 MHz Guard Bands Licenses. In the 700 MHz Guard Bands Order,
the Commission adopted size standards for ``small businesses'' and
``very small businesses'' for purposes of determining their eligibility
for special provisions such as bidding credits and installment
payments. A small business in this service is an entity that, together
with its affiliates and controlling principals, has average gross
revenues not exceeding $40 million for the preceding three years.
Additionally, a ``very small business'' is an entity that, together
with its affiliates and controlling principals, has average gross
revenues that are not more than $15 million for the preceding three
years. SBA approval of these definitions is not required. An auction of
52 Major Economic Area (MEA) licenses for each of two spectrum blocks
commenced on September 6, 2000, and closed on September 21, 2000. Of
the 104 licenses auctioned, 96 licenses were sold to nine bidders. Five
of these bidders were small businesses that won a total of 26 licenses.
A second auction of remaining 700 MHz Guard Bands licenses commenced on
February 13, 2001, and closed on February 21, 2001. All eight of the
licenses auctioned were sold to three bidders. One of these bidders was
a small business that won a total of two licenses. Subsequently, in the
700 MHz Second Report and Order, the Commission reorganized the
[[Page 47556]]
licenses pursuant to an agreement among most of the licensees,
resulting in a spectral relocation of the first set of paired spectrum
block licenses, and an elimination of the second set of paired spectrum
block licenses (many of which were already vacant, reclaimed by the
Commission from Nextel). A single licensee that did not participate in
the agreement was grandfathered in the initial spectral location for
its two licenses in the second set of paired spectrum blocks.
Accordingly, at this time there are 54 licenses in the 700 MHz Guard
Bands.
33. 700 MHz Band Commercial Licenses. There is 80 megahertz of non-
Guard Band spectrum in the 700 MHz Band that is designated for
commercial use: 698-757, 758-763, 776-787, and 788-793 MHz Bands. With
one exception, the Commission adopted criteria for defining two groups
of small businesses for purposes of determining their eligibility for
bidding credits at auction. These two categories are: (1) ``Small
business,'' which is defined as an entity that has attributed average
annual gross revenues that do not exceed $15 million during the
preceding three years; and (2) ``very small business,'' which is
defined as an entity with attributed average annual gross revenues that
do not exceed $40 million for the preceding three years. In Block C of
the Lower 700 MHz Band (710-716 MHz and 740-746 MHz), which was
licensed on the basis of 734 Cellular Market Areas, the Commission
adopted a third criterion for determining eligibility for bidding
credits: an ``entrepreneur,'' which is defined as an entity that,
together with its affiliates and controlling principals, has average
gross revenues that are not more than $3 million for the preceding
three years. The SBA has approved these small size standards.
34. An auction of 740 licenses for Blocks C (710-716 MHz and 740-
746 MHz) and D (716-722 MHz) of the Lower 700 MHz Band commenced on
August 27, 2002, and closed on September 18, 2002. Of the 740 licenses
available for auction, 484 licenses were sold to 102 winning bidders.
Seventy-two of the winning bidders claimed small business, very small
business, or entrepreneur status and won a total of 329 licenses. A
second auction commenced on May 28, 2003, and closed on June 13, 2003,
and included 256 licenses: five EAG licenses and 251 CMA licenses.
Seventeen winning bidders claimed small or very small business status
and won 60 licenses, and nine winning bidders claimed entrepreneur
status and won 154 licenses.
35. The remaining 62 megahertz of commercial spectrum is currently
scheduled for auction on January 24, 2008. As explained above, bidding
credits for all of these licenses will be available to ``small
businesses'' and ``very small businesses.''
36. Advanced Wireless Services. In the AWS-1 Report and Order, the
Commission adopted rules that affect applicants who wish to provide
service in the 1710-1755 MHz and 2110-2155 MHz bands. The Commission
did not know precisely the type of service that a licensee in these
bands might seek to provide. Nonetheless, the Commission anticipated
that the services that will be deployed in these bands may have capital
requirements comparable to those in the broadband Personal
Communications Service (PCS), and that the licensees in these bands
will be presented with issues and costs similar to those presented to
broadband PCS licensees. Further, at the time the broadband PCS service
was established, it was similarly anticipated that it would facilitate
the introduction of a new generation of service. Therefore, the AWS-1
Report and Order adopts the same small business size definition that
the Commission adopted for the broadband PCS service and that the SBA
approved. In particular, the AWS-1 Report and Order defines a ``small
business'' as an entity with average annual gross revenues for the
preceding three years not exceeding $40 million, and a ``very small
business'' as an entity with average annual gross revenues for the
preceding three years not exceeding $15 million. The AWS-1 Report and
Order also provides small businesses with a bidding credit of 15
percent and very small businesses with a bidding credit of 25 percent.
37. Common Carrier Paging. As noted, the SBA has developed a small
business size standard for wireless firms within the broad economic
census category of ``Wireless Telecommunications Carriers (except
Satellite).'' Under this category, the SBA deems a business to be small
if it has 1,500 or fewer employees. Since 2007, the SBA has recognized
wireless firms within this new, broad, economic census category. Prior
to that time, the SBA had developed a small business size standard for
wireless firms within the now-superseded census categories of
``Paging'' and ``Cellular and Other Wireless Telecommunications.''
Under the present and prior categories, the SBA has deemed a wireless
business to be small if it has 1,500 or fewer employees. Because Census
Bureau data are not yet available for the new category, the Commission
estimates small business prevalence using the prior categories and
associated data. For the first category of Paging, data for 2002 show
that there were 807 firms that operated for the entire year. Of this
total, 804 firms had employment of 999 or fewer employees, and three
firms had employment of 1,000 employees or more. For the second
category of Cellular and Other Wireless Telecommunications, data for
2002 show that there were 1,397 firms that operated for the entire
year. Of this total, 1,378 firms had employment of 999 or fewer
employees, and 19 firms had employment of 1,000 employees or more.
Thus, using the prior categories and the available data, the Commission
estimates that the majority of wireless firms can be considered small.
Thus, under this category, the majority of firms can be considered
small.
38. In the Paging Third Report and Order, the Commission developed
a small business size standard for ``small businesses'' and ``very
small businesses'' for purposes of determining their eligibility for
special provisions such as bidding credits and installment payments. A
``small business'' is an entity that, together with its affiliates and
controlling principals, has average gross revenues not exceeding $15
million for the preceding three years. Additionally, a ``very small
business'' is an entity that, together with its affiliates and
controlling principals, has average gross revenues that are not more
than $3 million for the preceding three years. The SBA has approved
these small business size standards. An auction of Metropolitan
Economic Area licenses commenced on February 24, 2000, and closed on
March 2, 2000. Of the 985 licenses auctioned, 440 were sold. Fifty-
seven companies claiming small business status won. Also, according to
Commission data, 365 carriers reported that they were engaged in the
provision of paging and messaging services. Of those, the Commission
estimates that 360 are small, under the SBA-approved small business
size standard.
39. Wireless Communications Service. This service can be used for
fixed, mobile, radiolocation, and digital audio broadcasting satellite
uses. The Commission established small business size standards for the
wireless communications service (WCS) auction. A ``small business'' is
an entity with average gross revenues of $40 million for each of the
three preceding years, and a ``very small business'' is an entity with
average gross revenues of $15 million for each of the three preceding
years. The SBA has approved these small business size standards. The
Commission auctioned geographic area licenses in the WCS service. In
the
[[Page 47557]]
auction, there were seven winning bidders that qualified as ``very
small business'' entities, and one that qualified as a ``small
business'' entity.
40. Wireless Communications Equipment Manufacturers. While these
entities are merely indirectly affected by the Commission's action, the
Commission described them to achieve a fuller record. The Census Bureau
defines this category as follows: ``This industry comprises
establishments primarily engaged in manufacturing radio and television
broadcast and wireless communications equipment. Examples of products
made by these establishments are: transmitting and receiving antennas,
cable television equipment, GPS equipment, pagers, cellular phones,
mobile communications equipment, and radio and television studio and
broadcasting equipment.'' The SBA has developed a small business size
standard for Radio and Television Broadcasting and Wireless
Communications Equipment Manufacturing, which is: all such firms having
750 or fewer employees. According to Census Bureau data for 2002, there
were a total of 1,041 establishments in this category that operated for
the entire year. Of this total, 1,010 had employment of under 500, and
an additional 13 had employment of 500 to 999. Thus, under this size
standard, the majority of firms can be considered small.
41. Radio and Television Broadcasting and Wireless Communications
Equipment Manufacturing. The Census Bureau defines this category as
follows: ``This industry comprises establishments primarily engaged in
manufacturing radio and television broadcast and wireless
communications equipment. Examples of products made by these
establishments are: transmitting and receiving antennas, cable
television equipment, GPS equipment, pagers, cellular phones, mobile
communications equipment, and radio and television studio and
broadcasting equipment.'' The SBA has developed a small business size
standard for Radio and Television Broadcasting and Wireless
Communications Equipment Manufacturing, which is: all such firms having
750 or fewer employees. According to Census Bureau data for 2002, there
were a total of 1,041 establishments in this category that operated for
the entire year. Of this total, 1,010 had employment of under 500, and
an additional 13 had employment of 500 to 999. Thus, under this size
standard, the majority of firms can be considered small.
42. Software Publishers. While these entities are merely indirectly
affected by the Commission's action, it is describing them to achieve a
fuller record. These companies may design, develop or publish software
and may provide other support services to software purchasers, such as
providing documentation or assisting in installation. The companies may
also design software to meet the needs of specific users. The SBA has
developed a small business size standard of $23 million or less in
average annual receipts for the category of Software Publishers. For
Software Publishers, Census Bureau data for 2002 indicate that there
were 6,155 firms in the category that operated for the entire year. Of
these, 7,633 had annual receipts of under $10 million, and an
additional 403 firms had receipts of between $10 million and $24,
999,999. For providers of Custom Computer Programming Services, the
Census Bureau data indicate that there were 32,269 firms that operated
for the entire year. Of these, 31,416 had annual receipts of under $10
million, and an additional 565 firms had receipts of between $10
million and $24,999,999. Consequently, the Commission estimates that
the majority of the firms in this category are small entities that may
be affected by the Commission's action.
43. NCE and Public Broadcast Stations. The Census Bureau defines
this category as follows: ``This industry comprises establishments
primarily engaged in broadcasting images together with sound. These
establishments operate television broadcasting studios and facilities
for the programming and transmission of programs to the public.'' The
SBA has created a small business size standard for Television
Broadcasting entities, which is: such firms having $13 million or less
in annual receipts. According to Commission staff review of the BIA
Publications, Inc., Master Access Television Analyzer Database as of
May 16, 2003, about 814 of the 1,220 commercial television stations in
the United States had revenues of $12 (twelve) million or less. The
Commission notes, however, that in assessing whether a business concern
qualifies as small under the above definition, business (control)
affiliations must be included. The Commission's estimate, therefore,
likely overstates the number of small entities that might be affected
by the Commission's action, because the revenue figure on which it is
based does not include or aggregate revenues from affiliated companies.
44. In addition, an element of the definition of ``small business''
is that the entity not be dominant in its field of operation. The
Commission is unable at this time to define or quantify the criteria
that would establish whether a specific television station is dominant
in its field of operation. Accordingly, the estimate of small
businesses to which rules may apply do not exclude any television
station from the definition of a small business on this basis and are
therefore over-inclusive to that extent. Also as noted, an additional
element of the definition of ``small business'' is that the entity must
be independently owned and operated. The Commission notes that it is
difficult at times to assess these criteria in the context of media
entities and the Commission's estimates of small businesses to which
they apply may be over-inclusive to this extent. There are also 2,117
low power television stations (LPTV). Given the nature of this service,
the Commission will presume that all LPTV licensees qualify as small
entities under the above SBA small business size standard.
45. The Commission has, under SBA regulations, estimated the number
of licensed NCE television stations to be 380. The Commission notes,
however, that, in assessing whether a business concern qualifies as
small under the above definition, business (control) affiliations must
be included. The Commission's estimate, therefore, likely overstates
the number of small entities that might be affected by the Commission's
action, because the revenue figure on which it is based does not
include or aggregate revenues from affiliated companies. The Commission
does not compile and otherwise does not have access to information on
the revenue of NCE stations that would permit it to determine how many
such stations would qualify as small entities.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
46. This Report and Order may contain new information collection
requirements subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law 104-13. If the Commission determines that the Report and
Order contains collection subject to the PRA, it will be submitted to
the Office of Management and Budget (OMB) for review under section
3507(d) of the PRA at an appropriate time. At that time, OMB, the
general public, and other Federal agencies will be invited to comment
on the new or modified information collection requirements contained in
this proceeding. In addition, the Commission notes that pursuant to the
Small Business Paperwork Relief Act of 2002, Public
[[Page 47558]]
Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission previously sought
specific comment on how the Commission might ``further reduce the
information collection burden for small business concerns with fewer
than 25 employees.
Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
47. 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.''
48. As noted in paragraph 2 above, this Second Report and Order
deals only with the WARN Act section 602 (c) requirement that the
Commission complete a proceeding to require licensees and permittees of
noncommercial educational broadcast stations or public broadcast
stations to install necessary equipment and technologies on, or as part
of, any broadcast television digital signal transmitter to enable the
distribution of geographically targeted alerts by commercial mobile
service providers that have elected to transmit emergency alerts under
this section.'' Many of the entities affected by this Second Report and
Order are the member stations for the Association of Public
Broadcasters (APTS), which was a member of the CMSAAC. Further, in its
formation of the CMSAAC, the Commission made sure to include
representatives of small businesses among the advisory committee
members. The CMAS NPRM also sought comment on a number of alternatives
to the recommendations of the CMSAAC, such as the Digital EAS. In its
consideration of this and other alternatives the CMSAAC
recommendations, the Commission has attempted to impose minimal
regulation on small entities to the extent consistent with the goal of
advancing its public safety mission by adopting technical requirements,
standards and protocols for a CMAS that CMS providers would elect to
provide alerts and warnings to their customers. The Commission's action
in this Second Report and Order neither requires nor forecloses the
exact outcome requested by the entities most affected, as represented
by APTS.
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
49. None.
Report to Congress
50. The Commission will send a copy of the CMAS Second Report and
Order, including this FRFA, in a report to be sent to Congress pursuant
to the Congressional Review Act. In addition, the Commission will send
a copy of the Second Report and Order, including this FRFA, to the
Chief Counsel for Advocacy of the SBA. A copy of the Second Report and
Order and FRFA is also hereby published in the Federal Register.
Ordering Clauses
51. It is ordered, that pursuant to sections 1, 4(i) and (o), 201,
303(r), 403, and 706 of the Communications Act of 1934, as amended, 47
U.S.C. 151, 154(i) and (o), 201, 303(r), 403, and 606, as well as by
sections 602(a), (b), (c), (f), 603, 604 and 606 of the WARN Act, this
Second Report and Order is hereby adopted. The rules adopted in this
Second Report and Order shall become effective October 14, 2008, except
that Sec. 10.350 (a)(7) and (b) contain new or modified information
collection requirements which will not become effective prior to OMB
approval.
52. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Second Report and Order, including the Final Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration.
List of Subjects in 47 CFR Part 10
Alert and Warning, Commercial Mobile Alert System, noncommercial
educational broadcast stations, public broadcast stations.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
0
For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR chapter 1 part 10 as follows:
PART 10--COMMERCIAL MOBILE ALERT SYSTEM
0
1. The authority citation for part 10 continues to read as follows:
Authority: 47 U.S.C. 151, 154(i) and (o), 201, 303(r), 403, and
606, as well as by sections 602(a), (b), (c), (f), 603, 604 and 606
of the WARN Act.
0
2. Add a new Sec. 10.340 to subpart C to read as follows:
Sec. 10.340 Digital Television Transmission Towers Retransmission
Capability.
Licensees and permittees of noncommercial educational broadcast
television stations (NCE) or public broadcast television stations (to
the extent such stations fall within the scope of those terms as
defined in section 397(6) of the Communications Act of 1934 (47 U.S.C.
397(6))) are required to install on, or as part of, any broadcast
television digital signal transmitter, equipment to enable the
distribution of geographically targeted alerts by commercial mobile
service providers that have elected to transmit CMAS alerts. Such
equipment and technologies must have the capability of allowing
licensees and permittees of NCE and public broadcast television
stations to receive CMAS alerts from the Alert Gateway over an
alternate, secure interface and then to transmit such CMAS alerts to
CMS Provider Gateways of participating CMS providers. This equipment
must be installed no later than eighteen months from the date of
receipt of funding permitted under section 606(b) of the WARN Act or 18
months from the effective date of these rules, whichever is later.
0
3. Add a new Sec. 10.350 to subpart C to read as follows:
Sec. 10.350 CMAS Testing Requirements.
This section specifies the testing that will be required, no later
than the date of deployment of the CMAS, of CMAS components.
(a) Required Monthly Tests. Testing of the CMAS from the Federal
Alert Gateway to each Participating CMS Provider's infrastructure shall
be conducted monthly.
(1) A Participating CMS Provider's Gateway shall support the
ability to receive a required monthly test (RMT) message initiated by
the Federal Alert Gateway Administrator.
(2) Participating CMS Providers shall schedule the distribution of
the RMT to their CMAS coverage area over a 24 hour period commencing
upon receipt of the RMT at the CMS Provider Gateway. Participating CMS
Providers shall determine the method to distribute the RMTs, and may
schedule over the 24 hour period the delivery of RMTs over geographic
subsets of their coverage area to manage traffic loads and to
accommodate maintenance windows.
[[Page 47559]]
(3) A Participating CMS Provider may forego an RMT if the RMT is
pre-empted by actual alert traffic or if an unforeseen condition in the
CMS Provider infrastructure precludes distribution of the RMT. A
Participating CMS Provider Gateway shall indicate such an unforeseen
condition by a response code to the Federal Alert Gateway.
(4) The RMT shall be initiated only by the Federal Alert Gateway
Administrator using a defined test message. Real event codes or alert
messages shall not be used for the CMAS RMT message.
(5) A Participating CMS Provider shall distribute an RMT within its
CMAS coverage area within 24 hours of receipt by the CMS Provider
Gateway unless pre-empted by actual alert traffic or unable due to an
unforeseen condition.
(6) A Participating CMS Provider may provide mobile devices with
the capability of receiving RMT messages.
(7) A Participating CMS Provider must retain an automated log of
RMT messages received by the CMS Provider Gateway from the Federal
Alert Gateway.
(b) Periodic C Interface Testing. In addition to the required
monthly tests, a Participating CMS Provider must participate in
periodic testing of the interface between the Federal Alert Gateway and
its CMS Provider Gateway. This periodic interface testing is not
intended to test the CMS Provider's infrastructure nor the mobile
devices but rather is required to ensure the availability/viability of
both gateway functions. Each CMS Provider Gateway shall send an
acknowledgement to the Federal Alert Gateway upon receipt of such an
interface test message. Real event codes or alert messages shall not be
used for this periodic interface testing.
[FR Doc. E8-18144 Filed 8-13-08; 8:45 am]
BILLING CODE 6712-01-P