[Federal Register: September 22, 2008 (Volume 73, Number 184)]
[Rules and Regulations]
[Page 54511-54526]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22se08-7]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 10
[PS Docket No. 07-287; FCC 08-184]
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) adopts rules to further enable Commercial Mobile
Service (CMS) alerting capability for CMS providers who elect to
transmit emergency alerts to their subscribers. This Commercial Mobile
Alert System Third R&O (CMAS Third R&O) represents our next step in
establishing a Commercial Mobile Alert System (CMAS), under which CMS
providers may elect to transmit emergency alerts to the public. We take
this step pursuant to the mandate of section 602(b) of the WARN Act,
which requires the Commission to adopt rules allowing any CMS provider
to transmit emergency alerts to its subscribers; requires CMS providers
that elect, in whole or in part, not to transmit emergency alerts to
provide clear and conspicuous notice at the point of sale of any CMS
devices that they will not transmit such alerts via that device; and
requires CMS providers that elect not to transmit emergency alerts to
notify their existing subscribers of their election.
DATES: Effective October 22, 2008.
FOR FURTHER INFORMATION CONTACT: Thomas J. Beers, Chief, Policy
Division, Public Safety and Homeland Security Bureau, Federal
Communications Commission at (202) 418-0952.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's CMAS
Third R&O in PS Docket No. 07-287, adopted and released on August 7,
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 or 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.
[[Page 54512]]
Paperwork Reduction Act of 1995 Analysis:
The initial election that CMS providers must make pursuant to
section 602(b)(2)(A) of the WARN Act has been granted pre-approval by
OMB (OMB Control Number 3060-1113). The FCC received OMB pre-approval
for this collection on February 4, 2008. Public reporting burden for
this collection of information is estimated to be 6 minutes per
response, including the time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information. This collection
of information is for the purpose of assisting the Commission in
overseeing the Commercial Mobile Service Alert System. This collection
is mandatory under the Warning, Alert and Response Network Act, Sec.
602(b)(2)(A), Title VI of the Security and Accountability for Every
Port Act of 2006, Public Law No. 109-347, 120 Stat. 1884 (2006). Send
comments regarding this burden estimate, or any other aspect of this
collection of information, including suggestions for reducing the
burden to Federal Communications Commission, AMD-PERM, Washington, DC
20554, Paperwork Reduction Project (3060-1113), or via the Internet to
PRA@fcc.gov. DO NOT SEND ELECTION LETTERS TO THIS ADDRESS.
Under 5 CFR 1320, an agency may not conduct or sponsor a collection
of information unless it displays a currently valid OMB Control Number.
No person shall be subject to any penalty for failing to comply with a
collection of information subject to the Paperwork Reduction Act (PRA)
that does not display a currently valid OMB Control Number. This
collection has been assigned OMB Control Number 3060-1113 and its
expiration date is February 28, 2011.
In addition, we note that, pursuant to the Small Business Paperwork
Relief Act of 2002, Public Law 107-198, see 44 U.C.S. 3506(c)(4), we
previously sought specific comment on how the Commission might
``further reduce the information collection burden for small business
concerns with fewer than 25 employees.''
This R&O also contains new information collection requirements
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13. These collections will be submitted to the Office of Management and
Budget (OMB) for review under section 3507 of the PRA at any
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, pursuant to the Small Business Paperwork Relief Act of 2002,
Public Law 107-198, see 44 U.C.S. 3506(c)(4), we will seek specific
comment on how the Commission might ``further reduce the information
collection burden for small business concerns with fewer than 25
employees.''
Synopsis
Introduction
1. This Commercial Mobile Alert System Third R&O (CMAS Third R&O)
represents our next step in establishing a Commercial Mobile Alert
System (CMAS), under which Commercial Mobile Service (CMS) providers
may elect to transmit emergency alerts to the public. We take this step
pursuant to the mandate of section 602(b) of the WARN Act, which
requires the Commission to adopt rules allowing any CMS provider to
transmit emergency alerts to its subscribers; requires CMS providers
that elect, in whole or in part, not to transmit emergency alerts to
provide clear and conspicuous notice at the point of sale of any CMS
devices that they will not transmit such alerts via that device; and
requires CMS providers that elect not to transmit emergency alerts to
notify their existing subscribers of their election.
2. In the CMAS Third R&O, we adopt rules implementing section
602(b) of the WARN Act. Specifically, we:
Adopt notification requirements for CMS providers that
elect not to participate, or to participate only in part, with respect
to new and existing subscribers;
Adopt procedures by which CMS providers may elect to
transmit emergency alerts and to withdraw such elections;
Adopt a rule governing the provision of alert opt-out
capabilities for subscribers;
Allow participating CMS providers to recover costs
associated with the development and maintenance of equipment supporting
the transmission of emergency alerts; and
Adopt a compliance timeline under which participating CMS
providers must begin CMAS deployment.
3. By adopting these rules, we take another significant step
towards achieving one of our highest priorities--to ensure that all
Americans have the capability to receive timely and accurate alerts,
warnings and critical information regarding disasters and other
emergencies irrespective of what communications technologies they use.
As we have learned from recent disasters, including Hurricane Katrina
in 2005 and the recent floods that have impacted our Midwestern and
Southern states, it is essential to enable Americans to take
appropriate action to protect their families and themselves from loss
of life or serious injury. This CMAS Third R&O also is consistent with
our obligation under Executive Order 13407 to ``adopt rules to ensure
that communications systems have the capacity to transmit alerts and
warnings to the public as part of the public alert and warning
system,'' and our mandate under the Communications Act to promote the
safety of life and property through the use of wire and radio
communication.
4. This CMAS Third R&O is the latest step in the Commission's
ongoing effort to enhance the reliability, resiliency, and security of
emergency alerts to the public by requiring that alerts be distributed
over diverse communications platforms. In the 2005 EAS First R&O, we
expanded the scope of the Emergency Alert System (EAS) from analog
television and radio to include participation by digital television and
radio broadcasters, digital cable television providers, Digital Audio
Radio Service (DARS), and Direct Broadcast Satellite (DBS) systems. As
we noted in the Further Notice of Proposed Rulemaking that accompanied
the EAS First R&O, wireless services are becoming equal to television
and radio as an avenue to reach the American public quickly and
efficiently. As of June 5, 2008, the wireless industry reports that
approximately 260 million Americans subscribed to wireless services.
Wireless service has progressed beyond voice communications and now
provides subscribers with access to a wide range of information
critical to their personal and business affairs. In times of emergency,
Americans increasingly rely on wireless telecommunications services and
devices to receive and retrieve critical, time-sensitive information. A
comprehensive wireless mobile alerting system would have the ability to
alert people on the go in a short timeframe, even where they do not
have access to broadcast radio or television or other sources of
emergency information. Providing critical alert information via
wireless devices will ultimately help the public avoid danger or
respond more quickly in the face of crisis, and thereby save lives and
property.
[[Page 54513]]
Background
5. On October 13, 2006, the President signed the Security and
Accountability For Every Port (SAFE Port) Act into law. Title VI of the
SAFE Port Act, the WARN Act, establishes a process for the creation of
the CMAS whereby CMS providers may elect to transmit emergency alerts
to their subscribers. The WARN Act requires that we undertake a series
of actions to accomplish that goal, including requiring the Commission,
by December 12, 2006 (within 60 days of enactment) to establish and
convene an advisory committee to recommend technical requirements for
the CMAS. Accordingly, we formed the Commercial Mobile Service Alert
Advisory Committee (CMSAAC), which had its first meeting on December
12, 2006. The WARN Act further required the CMSAAC to submit its
recommendations to the Commission by October 12, 2007 (one year after
enactment). The CMSAAC submitted its report on that date.
6. On December 14, 2007, we released a Notice of Proposed
Rulemaking requesting comment on issues related to implementation of
section 602 of the WARN Act. The Commission has received over 60
comments and ex parte filings. On April 9, 2008, we released a First
R&O, adopting technical standards, protocols, processes and other
technical requirements ``necessary to enable commercial mobile service
alerting capability for commercial mobile service providers that
voluntarily elect to transmit emergency alerts.'' On July 8, 2008, we
adopted a Second R&O establishing rules requiring noncommercial
educational and public broadcast television station licensees and
permittees to install necessary equipment and technologies on, or as
part of, the broadcast television digital signal transmitter to enable
the distribution of geographically targeted alerts by CMS providers
that have elected to participate in the CMAS. This Third R&O implements
further WARN Act requirements consistent with the Commission's goal of
establishing an effective and efficient CMAS.
Discussion
A. Notification by CMS Providers Electing Not To Transmit Alerts
1. Notification at Point of Sale
7. Background. Section 602(b)(1) provides that ``within 120 days
after the date on which [the Commission] adopts relevant technical
standards and other technical requirements pursuant to subsection (a),
the Commission shall complete a proceeding to allow any licensee
providing commercial mobile service * * * to transmit emergency alerts
to subscribers to, or users of, the commercial mobile service provided
by such licensee.'' Pursuant to this section, the Commission must
``require any licensee providing commercial mobile service that elects,
in whole or in part, under paragraph (2) [Election] not to transmit
emergency alerts to provide clear and conspicuous notice at the point
of sale of any devices with which its commercial mobile service is
included, that it will not transmit such alerts via the service it
provides for the device.''
8. In its October 12, 2007 report, the CMSAAC recommended that
carriers retain the discretion to determine how to provide specific
information regarding (1) whether or not they offer wireless emergency
alerts, and (2) which devices are or are not capable of receiving
wireless emergency alerts, as well as how to tailor additional notice,
if necessary, for devices offered at other points of sale.
Nevertheless, the CMSAAC recommended specific language to be used by
carriers that elect, in part or in whole, not to transmit emergency
alerts. With respect to carriers who intend to transmit emergency
alerts ``in part,'' the CMSAAC-recommended language reads as follows:
Notice Regarding Transmission of Wireless Emergency Alerts
(Commercial Mobile Alert Service)
[[WIRELESS PROVIDER]] has chosen to offer wireless emergency alerts
within portions of its service area, as defined by the terms and
conditions of its service agreement, on wireless emergency alert
capable devices. There is no additional charge for these wireless
emergency alerts.
Wireless emergency alerts may not be available on all devices or in
the entire service area, or if a subscriber is outside of the
[[WIRELESS PROVIDER'S]] service area. For details on the availability
of this service and wireless emergency alert capable devices, please
ask a sales representative, or go to [[INSERT WEBSITE URL]]. Notice
required by FCC Rule XXXX (Commercial Mobile Alert Service).
The CMSAAC recommended the following language for carriers that
``in whole'' elect not to transmit emergency alerts:
NOTICE TO NEW AND EXISTING SUBSCRIBERS REGARDING TRANSMISSION OF
WIRELESS EMERGENCY ALERTS (Commercial Mobile Alert Service)
[[WIRELESS PROVIDER]] presently does not transmit wireless
emergency alerts. Notice required by FCC Rule XXXX (Commercial Mobile
Alert Service).
In the CMAS NPRM, we sought comment on the CMSAAC recommendation
and whether it sufficiently addressed the requirements of the statute.
We also sought comment on the CMSAAC's suggestion that, because the
WARN Act does not impose a notice requirement on CMS providers who have
elected to participate in full, the Commission should not adopt a
notice requirement for those providers. We also sought comment on the
definition of ``any point of sale,'' which we specified as any means--
retail, telephone, or Internet-based--by which a service provider
facilitates and promotes its services for sale to the public. We
suggested that third party, separately branded resellers also would be
subject to point of sale notification requirements.
9. We also requested comment on what constitutes clear and
conspicuous notice at the point of sale. For example, we asked whether
a general notice in the form of a statement attesting to the election
not to provide emergency alerts would satisfy the statutory requirement
and whether the statutory language requires the posting of a general
notice in clear view of subscribers in the service provider's stores,
kiosks, third party reseller locations, Web site (proprietary or third
party), and any other venue through which the service provider's
devices and services are marketed or sold. We also asked what form the
general notice should take. In addition, we asked whether a service
provider meets the condition of clear and conspicuous notification if
the service provider requires subscribers to read and indicate their
understanding that the service provider does not offer emergency
alerts.
10. Comments. Many commenters supported the CMSAAC's recommendation
that CMS providers be afforded discretion in determining how best to
provide notice at the point of sale. For example, SouthernLINC argues
that ``general guidance from the FCC regarding suggested format and
procedures for providing notice to subscribers would be sufficient to
meet the requirements of the WARN Act,'' but that we should ``refrain
from adopting specific requirements for each carrier, regardless of the
carrier's size, business model, or customer preferences.'' CTIA agrees,
stating that ``a single type of notice is not appropriate in all
situations,'' and that different points of sale and business
circumstances lend themselves more readily to particular notice
solutions. CTIA further argues
[[Page 54514]]
that, rather than focusing on the mechanics of the notice, the
Commission should encourage wireless providers to ``furnish customers
with the information they need to make an informed decision.'' CTIA
argues that a ``combination of business incentive and statutory
requirements'' will ensure that customers are given adequate notice at
the point of sale. This is particularly the case, argues CTIA, where a
wireless carrier intends to deploy the CMAS on a market-by-market
basis, in which case a standardized message ``may lead to confusion and
dissatisfaction'' among customers. MetroPCS argues that any discretion
given to carriers with respect to the provision of ``clear and
conspicuous'' notice also should extend to how carriers provide notice
through their ``indirect distribution channels,'' and that since
indirect distribution is not owned or operated by the carriers,
``carriers should not be held responsible for the indirect distribution
retail outlet's failure to follow a carrier's directives, provided that
the provider has put the distributor on notice and took reasonable
steps to ensure prompt compliance.''
11. Other commenters from the wireless industry also expressed
support for the CMSAAC's recommended text language. MetroPCS supports
the adoption of a ``safe harbor'' under which carriers that use the
model text developed by the CMSAAC are deemed to have provided adequate
notice. Wireless industry commenters also agreed with the CMSAAC that
CMS providers electing to participate in the CMAS should not be
required to disclose such participation to subscribers. AAPC, for
example, argues that such a requirement is unnecessary because
participating CMS providers will have every incentive to advertise and
promote the fact of their participation.
12. Other commenters argue that the Commission should adopt
specific notice requirements. California Public Utilities Commission
(CPUC) recommends that CMS providers be required to provide notice to
and receive confirmations from new customers acknowledging their
understanding that the service provider does or does not offer
emergency alerts. CPUC also recommends that notices be in large print
and placed prominently on placards or their equivalent and that each
device sold by service providers should include a notice that emergency
alerts are or are not included as a feature of the device or the
service provider's service. Wireless Rehabilitation Engineering
Research Center argues that such procedures should also include audio
and video procedures (e.g., provision of CMAS information in large
print, Braille and audio formats) so that persons with disabilities
will be fully informed about the CMAS. It also recommends that CMS
providers be required to instruct subscribers that technical
limitations might prevent alert message reception even in areas with
signal coverage and that such no-alert areas should be detailed in
coverage maps.
13. Discussion. As an initial matter, we find that the statute does
not require CMS providers to provide notice in the event they elect to
transmit alerts to all subscribers. For those carriers that have
elected in whole or in part not to transmit emergency alerts, we find
that the statute requires that they ``provide clear and conspicuous
notice at point-of sale'' of their non-election or partial election to
provide emergency alerts. Additionally, we find that the statute
provides specific and limiting guidance. Therefore, we agree with
commenters that a one-size-fits-all approach to notification may not
adequately address the range of methods by which service providers
communicate with their customers. Nevertheless, the CMSAAC has crafted
plain language notifications that we believe are consistent with the
intent of the statute and which convey concisely a service provider's
non-election or partial election at the point of sale. We find that
this language will convey sufficient information and serve as the
minimum standard for clear and conspicuous notice under the WARN Act.
Our decision allows, but does not require, CMS providers to provide
their customers with additional information relating to CMAS.
Specifically, CMS providers electing to transmit alerts ``in part''
shall use the following notification, at a minimum:
Notice Regarding Transmission of Wireless Emergency Alerts
(Commercial Mobile Alert Service)
[[CMS PROVIDER]] has chosen to offer wireless emergency alerts
within portions of its service area, as defined by the terms and
conditions of its service agreement, on wireless emergency alert
capable devices. There is no additional charge for these wireless
emergency alerts.
Wireless emergency alerts may not be available on all devices or in
the entire service area, or if a subscriber is outside of the [[CMS
PROVIDER's]] service area. For details on the availability of this
service and wireless emergency alert capable devices, please ask a
sales representative, or go to [[CMS PROVIDER'S URL]].
Notice required by FCC Rule 47 CFR 10.240 (Commercial Mobile Alert
Service). CMS providers electing in whole not to transmit alerts shall
use the following notification language, at a minimum:
NOTICE TO NEW AND EXISTING SUBSCRIBERS REGARDING TRANSMISSION OF
WIRELESS EMERGENCY ALERTS (Commercial Mobile Alert Service)
[[CMS PROVIDER]] presently does not transmit wireless emergency
alerts. Notice required by FCC Rule 47 CFR 10.240 (Commercial Mobile
Alert Service).
14. We define the point of sale as the physical and/or virtual
environment in which a potential subscriber judges the products and
services of the service provider and the point at which the potential
subscriber enters into a service agreement with the service provider.
Thus, we adopt the CMSAAC recommended language as a minimum standard of
necessary information for use by all service providers and their agents
in point-of-sale venues, which shall include stores, kiosks, third
party reseller locations, Web sites (proprietary and third party), and
any other venue through which the service provider's devices and
services are marketed or sold. Section 601(b)(1)(2) specifically places
the responsibility of notification on the CMS provider. Therefore, CMS
providers are responsible for ensuring that clear and conspicuous
notice is provided to customers at the point-of-sale, regardless of
whether third party agents serve as the distribution channel.
15. We expect service providers selling through an indirect
distribution channel may meet their statutory requirements through
appropriate agency contract terms with their distribution partners or
by other reasonable means. However, the statute assigns responsibility
for conveying clear and conspicuous notice to CMS providers and,
consistent with this statutory language, we decline to shift this
burden onto a non-Commission licensed party. Therefore, CMS providers
are solely responsible for ensuring that clear and conspicuous notice
is provided to customers at the point-of-sale.
16. We decline at this time to adopt specific requirements, such as
those put forth by CPUC (e.g., certain sized posters, type-size,
brochures) for displaying the notification, preferring instead to allow
carriers to create and position notifications that are consistent with
the marketing and service notification methodologies in use at any
given time by the service provider. Similarly, with respect to Wireless
RERC's concerns that procedures be mandated that include audio and
video
[[Page 54515]]
notifications so that persons with disabilities will be fully informed
about a service provider's election in part or in whole not to transmit
emergency alerts, we believe that service providers will make use of
existing facilities and procedures to convey the necessary
notification. The statute requires clear and conspicuous notification,
which we interpret to include the provision of notification that takes
into account the needs of persons with disabilities. Thus, clear and
conspicuous notification for persons with disabilities would include
enhanced visual, tactile or auditory assistance in conveying the
required notification. However, we agree with commenters and the CMSAAC
that wireless service providers are in the best position to determine
the proper method of providing this notice and leave it to the
discretion of providers to provide clear and conspicuous notice at the
point-of-sale. In addition, our decision allows, but does not require,
additional information regarding the technical limitations of CMAS
alerts, as requested by Wireless RERC (i.e., that technical limitations
might prevent alert message reception even in areas with signal
coverage).
17. We disagree with the concerns raised by some commenters that,
without a written acknowledgement from a subscriber, notification
requirements under the WARN Act are not met. The statute requires the
CMS provider to provide clear and conspicuous notice, but does not
require the Commission to mandate an affirmative response from
customers. Service agreements usually define the carrier's and
subscriber's rights and responsibilities and describe any limitations
of the service or products offered. We expect that many CMS providers
will provide clear and conspicuous notice in their service agreements.
To the extent they do so, subscribers in effect acknowledge such notice
by signing the agreement. However, we do not require that this
notification be placed into a service agreement, nor do we require that
CMS providers otherwise obtain subscriber acknowledgements. We find
that by implementing the statutory requirement of clear and conspicuous
notice at the point of sale, adopting an acknowledgment requirement
would be unnecessary.
2. Notifications to Existing Subscribers
18. Background. Section 602(b)(1)(C) states that the Commission
shall ``require any licensee providing commercial mobile service that
elects under paragraph (2) not to transmit emergency alerts to notify
its existing subscribers of its election.'' In the CMAS NPRM, we asked
whether CMS providers should be granted the discretion to determine how
to provide notice of non-election, including the methods and duration
of a service provider's notification to existing subscribers of an
election. We also asked about the use of existing marketing and billing
practices for purposes of notification, and whether service providers
should be required to notify existing subscribers by sending them a
separate notice of a change in their terms and conditions of their
service. In addition, we asked how service providers should notify pre-
paid customers. We also asked whether service providers should be
required to demonstrate to the Commission that they have met this
requirement and, if so, how. Finally, we asked whether service
providers should be required to maintain a record of subscribers who
have acknowledged receipt of the service provider's notification.
19. Comments. Wireless service providers generally argue that the
Commission should provide CMS providers with flexibility regarding
notice to existing subscribers, and oppose any requirement that CMS
providers maintain records of subscriber acknowledgements of the
notification. RCA argues, for example, that a requirement to maintain
records of subscriber acknowledgement exceeds the authority granted to
the Commission by the WARN Act, which only requires the provision of
notice. SouthernLINC opposes ``the imposition of any burdensome notice
or record keeping requirements on regional and small, rural carriers.''
Further, SouthernLINC argues that it would be ``unrealistic to expect
every customer to affirmatively respond to notices and that it would be
counterproductive for carriers to expend tremendous resources in
tracking down customers that choose not to respond.'' MetroPCS argues
that the need for flexibility is particularly necessary in the case of
pre-paid carriers, who offer flat-rate service and who may not send
written bills to their customers or keep current addresses of their
customers on-file. According to MetroPCS, it corresponds with its
customers mainly through short message service (SMS) messages delivered
to the handsets of its subscribers.
20. Wireless RERC argues that CMS providers should be required to
``fully inform'' subscribers about the alert capabilities of the
service provider's network and wireless devices, including pre-paid
devices. Further, it argues that labeling on wireless devices or
packages of wireless devices should be available in alternative
formats, such as large print to aid those with visual impairments, and
the Commission should establish ``CMAS standards of performance
consistent with the Americans with Disabilities Act and other federal
regulations regarding providing services to people with disabilities.''
CPUC urges the Commission to require, at a minimum, notification
requirements similar to that required for VoIP providers for E911
service, recommending that any notice requirement be flexible so as to
allow for the use of direct mailings, paper bills, e-mails and Web site
notices. It argues that CMS providers should also be required to verify
that acknowledgment was received from incumbent customers at a time and
date designated by the Commission but prior to CMAS implementation,
including requiring customers ``to indicate their understanding that
the service provider does not offer emergency alerts and should be
required to sign a document (or otherwise demonstrate, such as through
electronic acceptance) indicating that they have read and understood
the notice [and] [t]his notice should in no case be combined with other
direct mailings containing marketing materials.'' In those cases where
subscribers declined to receive direct mailings from service providers,
CPUC suggests that carriers be required to demonstrate that they have
taken reasonable steps to inform subscribers of the decision not to
transmit alert messages.
21. CTIA disagrees with the CPUC's notification recommendations
(modeled after the Commission's VoIP 9-1-1 notification requirements)
arguing that, ``such rules cannot serve as a guideline because they
were created in response to a specific issue that is inapplicable to
CMAS.'' CTIA argues that those notice requirements ``were tailored to
the notion that customers may have faulty assumptions about the
availability of 911 services on their IP-enabled phones,'' whereas that
concern is not present for CMAS because clear and conspicuous notice
will be given to customers at the point of sale.
22. Discussion. We again base our analysis on the explicit language
of section 602(b)(1)(C), which requires any licensee providing
commercial mobile service that elects not to transmit emergency alerts
``to notify its existing subscribers of its election.'' As an initial
matter, we find that section 602(b)(1)(C) is not limited to CMS
providers that elect not to provide emergency alerts in whole. Rather,
we interpret section 602(b)(1)(C) in concert with section 602(b)(1)(B)
to also require CMS
[[Page 54516]]
providers that elect not to transmit emergency alerts in part to notify
existing subscribers of their election. Thus, we require CMS providers
to notify existing subscribers of their election, in whole or in part,
not to transmit emergency alerts. Likewise, we require that this notice
be ``clear and conspicuous.'' Additionally, as in the case of notice at
point-of-sale, clear and conspicuous notification for persons with
disabilities would include enhanced visual, tactile or auditory
assistance in conveying the required notification.
23. Turning next to how CMS providers are to make such
notifications, we find that the way CMS providers typically convey
changes in terms and conditions to their subscribers to be sufficiently
analogous. Thus, while an election not to transmit alerts, in whole or
in part, is not necessarily a change in an existing term or condition,
we require service providers to notify existing subscribers of their
election by means of an announcement amending the existing subscriber's
terms and conditions of service agreement. We agree with commenters who
suggest that service providers should be given discretion in
determining how to provide such notice to existing subscribers. Service
providers regularly use various means to announce changes in service to
subscribers, including, for instance, direct mailing, bill inserts, and
other billing-related notifications. In order to ensure that
subscribers receive the necessary notification, we require service
providers to use, at a minimum, the notification language recommended
by the CMSAAC that we have adopted for use in point of sale
notification.
24. At this time, we will not require service providers to obtain a
written or verbal acknowledgment from existing subscribers. We conclude
that section 602(b)(1)(C) does not require an affirmative response from
subscribers. Rather, it requires only that a provider notifies
customers of its election not to participate. We agree with
SouthernLINC that it would be unrealistic and unwarranted to require an
affirmative response from every subscriber. While we recognize that
some service providers allow their subscribers to opt out of receiving
any information from the service provider, this usually applies to
additional marketing or advertising communications and not to
communications relating to changes in the terms and conditions of
service. Finally, we recognize that service providers with pre-paid
subscribers generally do not send a monthly billing statement to them
and in some cases limit any customer notification to SMS messages.
Further, service providers may not maintain customer information that
can be used to communicate a change to the terms and conditions of
service. Accordingly, in order to ensure that pre-paid customers are
notified of the carrier's election, we require carriers to communicate
the election through any reasonable means at their disposal, including,
but not limited to, mailings, text messaging, and SMS messaging.
3. Timing of Notification
25. Background. Under section 602(b)(2)(A), ``within 30 days after
the Commission issues its order under paragraph (1), each licensee
providing commercial mobile service shall file an election with the
Commission with respect to whether or not it intends to transmit
emergency alerts.'' As discussed above, carriers electing not to
transmit, in part or in whole, are required to notify prospective and
existing subscribers of their election, but the statute does not state
that this notification shall be concomitant with the carrier's election
on its intent to transmit emergency alerts. The record is silent on the
timing of notification. Significantly, on May 30, 2008, the Department
of Homeland Security's Federal Emergency Management Agency (FEMA)
announced that it will perform the CMAS Alert Aggregator/Gateway role.
FEMA noted, however, that the Alert Aggregator/Gateway system has not
yet been designed or engineered, and did not indicate when it would
make the Government Interface Design specifications available to the
other CMAS participants. Further, the CMSAAC estimated that
development, testing and deployment would require 18-24 months from
standardization of the alerting protocol. Thus, a period of time will
pass between the election filings and the commercial availability of
CMAS.
26. Discussion. Accordingly, we find that it would not be in the
public interest to require the commencement of customer notification
upon the filing of elections with the Commission and well in advance of
the commercial availability of CMAS. A principal goal of the customer
notification requirement is to ensure that, upon the commercial
availability of CMAS and the expected marketing of this service and
supporting handsets by carriers that have elected to provide alerts,
prospective and existing subscribers of carriers electing not to
transmit alerts are fully informed of the limitations of that carrier's
alerting capabilities and better able to make an informed decision
about which carriers can provide critical public safety notifications.
We believe the relevance of this decision may be lost if notification
is delivered to prospective and existing subscribers too far in advance
of CMAS' commercial availability. Further, by not tying the customer
notification requirements to the 30-day election requirement, we
provide time for CMS providers that may initially elect not to provide
alerting capability to alter such decisions, particularly when the
future availability and details of the CMAS Alert Aggregator/Gateway
are made known. Because commercial availability of alerts is dependent
upon the activation of the Alert Aggregator/Gateway system to support
transmission of emergency alerts, we find it reasonable to require
customer notification upon the availability of the transmission of
emergency alerts. Thus, we will require CMS providers that have
elected, in whole or in part, not to provide alerts to provide point of
sale and existing subscriber notifications as described supra to be
made no later than 60 days following an announcement by the Commission
that the Alert Aggregator/Gateway system is operational and capable of
delivering emergency alerts to participating CMS providers. We find
that this policy is consistent with the WARN Act. Although section
602(b)(2)(A) of the WARN Act requires that CMS licensees file an
election with the Commission within 30 days after the Commission issues
this Third R&O, section 602(b)(1)(B) does not otherwise provide a
specific deadline by which CMS providers must provide notice to
subscribers regarding non-election.
B. Election Procedures
27. Background. Sections 602(b)(2)(A), (B), and (D) establish
certain requirements for CMS providers electing to provide or not to
provide emergency alerts to subscribers. In several instances, the
statute requires service providers to submit notifications to the
Commission indicating their election, non-election, or their withdrawal
from providing emergency alerts. Section 602(b)(2)(A) requires that,
``within 30 days after the Commission issues its order under [section
602(b)], each licensee providing commercial mobile service shall file
an election with the Commission with respect to whether or not it
intends to transmit emergency alerts.'' Similarly, under section
602(b)(2)(B), a service provider that elects to transmit emergency
alerts must ``notify the Commission of its election'' and ``agree to
transmit such alerts in a manner consistent with the technical
[[Page 54517]]
standards, protocols, procedures, and other technical requirements
implemented by the Commission.'' Further, section 602(b)(2)(D) requires
the Commission to establish procedures relating to withdrawal of an
election and the filing of late election notices with the Commission.
Under section 602(b)(2)(D)(i), ``the Commission shall establish a
procedure for a commercial mobile service licensee that has elected to
transmit emergency alerts to withdraw its election without regulatory
penalty or forfeiture upon advance written notification of the
withdrawal to its affected subscribers.'' Finally, section
602(b)(2)(D)(ii) requires ``the Commission to establish a procedure for
a commercial mobile service licensee to elect to transmit emergency
alerts at a date later than provided in subparagraph (A).''
28. In the CMAS NPRM, we sought comment on all of these filing
requirements. Specifically, we asked for comment on the most efficient
method for accepting, monitoring and maintaining service provider
election and withdrawal information. With respect to the initial
election, we asked what CMS providers should provide in their filing if
they indicate an intention to provide emergency alerts. For example, we
sought comment on the CMSAAC's recommendation that, at a minimum, a CMS
provider should explicitly commit to support the development and
deployment of technology for the following: The ``C'' interface, the
CMS provider Gateway, the CMS provider infrastructure, and the mobile
device with CMAS functionality. Noting that the CMSAAC suggested that
the required technology may not be in place for some time, we asked
whether electing CMS providers should specify when they will be able to
offer mobile alerting.
29. In addition, we sought comment about how service providers
should notify the Commission and attest to their adoption of the
Commission's standards, protocols, procedures and other technical
requirements. We asked whether we should require electronic filing of
the submission and what CMS providers should submit in their report to
the Commission if they indicate an intention to provide emergency
alerts. Finally, we sought comment on the proper mechanism for service
providers to file a withdrawal of election with the Commission. We
identified two scenarios: First, where the service provider has elected
to provide emergency alerts, but does not build the infrastructure, and
second, where the service provider elects to provide emergency alerts
and does so to all or some portion of its coverage area, but later
chooses to discontinue the service. With respect to the latter
scenario, we asked how much advance notification to subscribers the
Commission should require prior to the service provider's withdrawal.
We also asked what methods service providers should use to notify all
existing subscribers at the service provider's various points of sale
as well as whether the Commission should impose the same set of
requirements considered under section 602(b)(1)(C) regarding
notification to existing subscribers and potential subscribers that a
service provider has elected not to provide emergency alerts.
30. Comments. Wireless stakeholders agreed with the CMSAAC's
recommendation regarding what notice service providers should include
in their elections. For example, MetroPCS argues that the most
effective way to provide notice to the Commission of a carrier's
election should be through a written election provided at the time the
election is required and, thereafter, within a reasonable time after
the carrier decides to change its election. For CMS providers
commencing service after the initial election deadline, MetroPCS
recommends the submission of elections within 90 days after the
licensee begins to market service in the licensed area. MetroPCS
suggests that the election notice be on a license-by-license basis, but
with the flexibility to consolidate elections over all or a portion of
the CMS providers' licenses. MetroPCS recommends that service providers
deciding to change their elections ``should be required to provide
written notice to the Commission within 30 days of effectuating the
change in election.''
31. Some commenters suggest that the Commission maintain a register
listing the carriers that elect to participate as well as those that do
not. CPUC argues that it is ``essential'' that states have access to
CMS providers' election notices and that such notices should include,
at a minimum, the ``C'' reference point, the CMS provider Gateway, the
CMS provider infrastructure, the mobile device with CMAS functionality
and any geographic variations in the commitment to provide emergency
alerts. CPUC further argues that CMS providers should also be required
to file a report attesting to their adoption of the Commission's
standards, protocols, procedures, and other technical requirements, and
reporting on the CMS providers' arrangements for working with the Alert
Aggregator, their technical connections with the Alert Gateway, the
links used to provide that connection and a description of their
technical capability for providing state, regional and local alerts.
Verizon Wireless opposes any requirement to provide detailed
information about its network capabilities, arguing that such
information is competitively sensitive and highly confidential.
32. Discussion. We find that the most efficient method for
accepting, monitoring and maintaining service provider election and
withdrawal information is to accept electronic submissions to the
Commission. Accordingly, we require CMS providers to file
electronically in PS Docket No. 08-146 a letter describing their
election. Carriers electing, in part or in whole, to transmit emergency
alerts shall attest that they agree to transmit such alerts in a manner
consistent with the technical standards, protocols, procedures, and
other technical requirements implemented by the Commission. Further, we
accept the recommendation of the CMSAAC that a CMS provider electing to
transmit, in part or in whole, emergency alerts, indicates its
commitment to support the development and deployment of technology for
the following: The ``C'' interface, the CMS provider Gateway, the CMS
provider infrastructure, and mobile devices with CMAS functionality and
support of the CMS provider selected technology. We require CMS
providers to submit their letter of election within 30 days after the
release of this Order. Due to the ongoing development of the Alert
Aggregator/Gateway system and the Government Interface Design
specifications, we do not require CMS providers electing to transmit,
in part or in whole, emergency alerts to specify when they will be able
to offer mobile alerting. With respect to commenters seeking the
submission of detailed information about the links used to provide that
connection and a description of their technical capability for
providing state, regional and local alerts, we find that the statutory
language does not require provision of this information. Further, we
find that it would be unduly burdensome for carriers to provide such
information and, therefore, reject those suggestions. We agree with
Verizon Wireless that requiring such information could force providers
to divulge competitively sensitive information. Additionally, requiring
such information imposes substantial administrative and technical
burdens on providers that are inconsistent with the voluntary nature of
the CMAS program.
33. Section 602(b)(2)(D)(i) requires the Commission to establish a
procedure for a commercial mobile service licensee
[[Page 54518]]
that has elected to transmit emergency alerts to withdraw its election
without regulatory penalty or forfeiture upon advance written
notification of the withdrawal to its affected subscribers. Thus, we
require a CMS provider that withdraws its election to transmit
emergency alerts to notify all affected subscribers 60 days prior to
the withdrawal of the election. Carriers that withdraw their election
to transmit alerts shall be subject to the notification requirements
described in paragraph 37. We also require carriers to notify the
Commission of their withdrawal, including information on the scope of
their withdrawal, at least 60 days prior to electing to do so. Such a
requirement is consistent with the requirement under section
602(b)(2)(D)(i) that we establish procedures for election withdrawal,
and with the WARN Act's provision requiring providers to inform the
Commission of their election to participate in the CMAS.
34. With respect to section 602(b)(2)(D)(ii), requiring that the
Commission ``establish a procedure for a commercial mobile service
licensee to elect to transmit emergency alerts at a date later than
provided in subparagraph (A),'' we require such CMS licensees, 30 days
prior to offering this service, to file electronically their election
to transmit, in part or in whole, or to not transmit emergency alerts
in the manner and with the attestations described above. This mirrors
the Commission's rules for providers who elect immediately and provides
a sufficient and fair amount of time for providers to elect to
participate at a later date.
C. Other Issues
1. Subscriber Termination of Service
35. Background. Section 602(b)(2)(D)(iii) requires the Commission
to establish a procedure ``under which a subscriber may terminate a
subscription to service provided by a commercial mobile service
licensee that withdraws its election without penalty or early
termination fee.'' We sought comment on the procedures necessary to
implement this provision. Specifically, we asked whether notification
in the terms and conditions of service is sufficient to apprise
subscribers of their right to discontinue service without penalty or
termination fee, whether the Commission should prescribe specific
procedures for subscribers and whether service providers should submit
to the Commission a description of their procedure for informing
subscribers of their right to terminate service.
36. Comments. CTIA argues that the Commission should ``regulate
sparingly in the area of customer termination of subscriber agreements
in the event that a wireless provider withdraws its election to
participate in the CMAS.'' Further, it states that ``heavy-handed
regulation and oversight both consumes Commission resources and adds
cost to the overall provision of service (and, in turn, adds to
subscriber cost)'' and ``adopting a procedure that fits with a
company's other procedures and policies will make the option more user-
friendly for the customer familiar with the wireless provider.'' CPUC
states that the FCC should prescribe specific procedures for informing
customers and accomplishing terminations rather than having providers
design their own procedures. CPUC argues the Commission should design a
process that includes notice to customers in clear and explicit
language citing the statute and that the notices should facilitate the
ability of a customer to automatically respond and immediately
discontinue service. CPUC adds that customer acknowledgment of this
information should be required by signature and dating or some
corresponding affirmative action as done for non-participating
providers at the point of initial sale.
37. Discussion. We find that because section 602(b)(2)(D)(iii), on
its face, clearly provides rights specifically aimed at subscribers--
that they may terminate service without penalty or early termination
fee if a provider withdraws its initial election to participate in
CMAS--subscribers require individual notice of their rights under the
WARN Act. We further find that carriers must notify each affected
subscriber individually in clear and conspicuous language, citing the
statute, of the subscriber's right to terminate service without penalty
or early termination fee should a carrier withdraw its initial
election. We do not otherwise adopt any specific methods or procedures
for implementing this individualized notice, but rather leave it to CMS
providers to determine how best to communicate these statutory rights
to their customers.
2. Subscriber Alert Opt-Out
38. Background. Section 602(b)(2)(E) provides that ``[a]ny
commercial mobile service licensee electing to transmit emergency
alerts may offer subscribers the capability of preventing the
subscriber's device from receiving such alerts, or classes of such
alerts, other than an alert issued by the President.'' The CMSAAC
recommended that CMS providers should offer their subscribers a simple
opt-out process. With the exception of Presidential messages, which are
always transmitted, the CMSAAC recommended that the process should
allow the choice to opt out of ``all messages,'' ``all severe
messages,'' and AMBER Alerts. The CMSAAC suggested that, because of
differences in the way CMS providers and device manufacturers provision
their menus and user interfaces, CMS providers and device manufacturers
should have flexibility about how to present the opt-out choices to
subscribers. In the CMAS First R&O, the Commission further defined
these three alert classes as: (1) Presidential Alert, (2) Imminent
Threat Alert, and (3) Child Abduction Emergency/AMBER Alert. We sought
comment on the recommendations of the CMSAAC with respect to three
choices of message types that a subscriber should be allowed to choose
to opt out of receiving. Additionally, we sought comment on the CMSAAC
recommendation that CMS providers and device manufacturers should have
flexibility or whether the Commission should establish baseline
criteria for informing subscribers of this capability and if any
uniform standards for conveying that information to subscribers is
required. We also sought comment on whether more classes of alerts
should be considered.
39. Comments. Many commenters who addressed this issue expressed
support for the CMSAAC's recommendations. For example, T-Mobile argues
that, given the different types of handsets and the wide array of menu
interfaces offered by CMS providers, the Commission should not impose
baseline standards or a uniform methodology for disabling alerts on
this array of mobile handsets or devices. AAPC states that carriers
should be permitted to manage subscriber opt-outs of alerts at the
network terminal level and not just at the subscriber device level.
Wireless RERC argues that CMS providers should make it clear to the
subscriber what opting-out means--that, for example, they will not
receive tornado warnings. CPUC agrees, stating that CMS providers
should be required to inform subscribers that they have the choice of
opting out of alerts.
40. One party--PTT--objected to the provision of any subscriber
opt-out mechanism. PTT states that an opt-out capability will defeat
the purpose of the program if a large number of potential users opt out
due to concerns about battery usage. It states that if such a
``requirement'' moves forward, it would prefer that subscribers use the
SMS filtering features of their own device to
[[Page 54519]]
filter undesired messages, rather than making this a universal feature
of the program.
41. Discussion. We agree with the CMSAAC proposed simple opt-out
program. The process should allow the choice to opt out of ``Imminent
Threat Alert messages'' and ``Child Abduction Emergency/AMBER Alert
messages.'' This allows consumers the flexibility to choose what type
of message they wish to receive while still ensuring that customers are
apprised of the most severe threats as communicated by Presidential
Alert messages, which are always transmitted. However, because of the
differences in how CMS providers and device manufacturers provision
menus and user interfaces, we afford CMS providers flexibility to
provide opt-out choices consistent with their own system. While we
assume, as proposed by the Wireless RERC, that providers would make
clear to consumers what each option means, and provide examples of what
types of messages the customer may not receive as a result of opting-
out so that consumers can make an informed choice, we do not require
providers to include such information because there is no corresponding
requirement in the WARN Act.
42. We disagree with PTT's argument that opt-out capability will
defeat the purpose of the program. First, the WARN Act specifically
grants providers the option to allow subscribers to opt-out of all but
Presidential alerts. It would be inconsistent with the clear intent of
Congress for the Commission to disallow this option. Secondly, the
Alert Gateway used to transmit CMAS messages will most likely be
separate and distinct from the SMS gateway. Therefore, subscribers may
be unable to use their SMS filtering feature to filter CMAS messages.
3. Cost Recovery
43. Background. Section 602(b)(2)(C) states ``[a] commercial mobile
service licensee that elects to transmit emergency alerts may not
impose a separate or additional charge for such transmission or
capability.'' In the Notice, we asked whether section 602(b)(2)(C)'s
reference to ``transmission or capability'' should be read narrowly and
sought comment whether this provision precludes a participating CMS
provider's ability to recover costs associated with the provision of
alerts. Noting, for example, that much of the alert technology will
reside in the subscriber's mobile device, we asked whether CMS
providers should recover CMAS-related developmental costs from the
subscriber through mobile device charges based on a determination that
mobile devices lie outside the ``transmission or capability'' language
of the section. We also asked about cost recovery in connection with
CMAS-related services and technologies that are not used to deliver
CMAS.
44. Comments. Many of those commenting on the issue argue that
participating CMS providers should be allowed to recover development,
maintenance and manufacturing costs from their subscribers. AT&T urges
the Commission to declare that costs incurred in the development of
CMAS and in the provision of mobile emergency alerts are recoverable
under the WARN Act and that cost recovery is consistent with the plain
language of the Act. AT&T argues that the statutory language concerning
separate or additional charges ``only addresses the appearance or
presentation of charges on a subscriber's bill for the emergency alert
mandate,'' ``does not in any way limit a carrier's ability to recover
costs associated with CMAS implementation,'' and ``to limit cost
recovery in this way would require the imposition of rate regulation
and a regulatory accounting regime, which the Commission specifically
has rejected for the competitive wireless industry.'' SouthernLINC
argues that section 602(b)(2)(C) should be interpreted to apply only to
separate charges associated with the specific costs involved in
transmitting each alert and that subscribers should not be charged a
per-alert fee. It argues, however, that carriers should be permitted to
recover costs associated with the implementation and ongoing system
management and any vendor-imposed handset costs. Such an approach,
SouthernLINC argues, would encourage greater carrier participation. T-
Mobile agrees, stating that it is fair to consumers who choose to buy a
more sophisticated handset to cover some or all of the costs of the
handset's development. On the other hand, Wireless RERC argues that CMS
providers should be treated no differently than EAS participants who
must bear the costs of their EAS participation. It states further that
``since CMAS is starting as a voluntary system and CMS providers are
not allowed to impose a separate or additional charge for such
transmission or capability, the Commission should review its mobile
services regulations to implement any incentives that might offset CMS
expenses and encourage CMS providers to participate in CMAS.''
45. Discussion. We agree with those commenters who urge us to find
that section 602(b)(2)(C) precludes CMS providers from imposing a
``separate or additional charge'' for the transmission of CMAS alerts
or the capability to transmit such alerts, but that such language does
not preclude recovery of CMAS-associated costs, including costs related
to the development of customer handsets. Section 602(b)(2)(C) states
that ``[a] commercial mobile service licensee that elects to transmit
emergency alerts may not impose a separate or additional charge for
such transmission or capability.'' We interpret this language to mean
that CMS providers shall not separately or additionally charge
customers for provided alerts. But nothing in this statutory language--
and nothing in the statute's legislative history--indicates an
intention on the part of Congress to preclude recovery of, for example,
CMAS-related development and implementation costs. In this regard, we
note that Congress is well aware of this Commission's Title III
regulation of wireless carriers, which provides for flexible recovery
of costs through assessed rates and other means. We conclude that, if
Congress had wanted to preclude cost recovery, as opposed to merely
prohibiting separate or additional charges for alert transmission or
alert transmission capability, it would have said so. We also find that
permitting recoverable costs associated with the provision of CMAS
alerts would be consistent with the voluntary nature of the CMAS and
our general policy to encourage participation in the CMAS.
46. Although we make clear that section 602(b)(2)(C) does not
prevent recovery of CMAS-related costs by CMS providers, we do not
mandate any particular method of cost recovery. CMS providers have the
discretion to absorb service-related costs or to pass on all or
portions of such costs to their customers pursuant to generally-
developed service rates. We also find that, because CMS providers
operate in a competitive marketplace, market forces will guide
decisions by CMS providers in recovering costs. Finally, we find that
the language of section 602(b)(2)(C) is, on its face, limited to
charges for alert transmissions and the capability to provide such
transmissions and, accordingly, does not prohibit cost recovery, as
described here, for specially-designed or augmented customer handsets,
or in connection with CMAS-related services that share use of common
technology but are not themselves CMAS alerts, for example, for
provision of traffic alerts.
4. CMAS Deployment Timeline
47. Background. In its recommendations, the CMSAAC
[[Page 54520]]
proposed a timeline for implementation of the CMAS. According to the
CMSAAC, it will take twelve months from the date of submission of the
CMSAAC's recommendations to complete an industry standardization
process. Participating CMS providers would then need an additional
twenty-four months from the date of completion of the standardization
process for CMAS development and testing. Initial CMS provider testing
and deployment would occur 18-24 months from the date the industry
standardization process is completed.
48. The specifics of the timeline recommended by the CMSAAC are
indicated in Figure 1 below.
[GRAPHIC] [TIFF OMITTED] TR22SE08.010
49. The CMSAAC based its proposed deployment timeline upon the
assumptions that (1) the CMSAAC recommendations would be accepted
without any major technical change and (2) the government documentation
and deliverables would be available at the milestone dates indicated on
the timeline. As indicated in Figure 1, when creating this timeline,
the CMSAAC assumed that the Federal Alert Aggregator and Gateway would
provide the Government Interface Design specifications in January 2008.
The CMSAAC also identified other factors it stated were outside of the
CMS providers' control that would influence the deployment and
availability of the CMAS, such as manufacturer development cycles for
equipment in the CMS provider infrastructure, manufacturer commitment
to support the delivery technology of choice by the CMS provider, and
mobile device manufacturer development of the required CMAS
functionality on the mobile devices.
50. As discussed above, on May 30, 2008, the Department of Homeland
Security's Federal Emergency Management Agency (FEMA) announced that it
will perform the CMAS Alert Aggregator/Gateway role. FEMA noted that
the Alert Aggregator/Gateway system has not yet been designed or
engineered, and did not indicate when it would make the Government
Interface Design specifications available to the other CMAS
participants. FEMA did note, however, that it would work with DHS
Science and Technology scientists to finalize the technical solutions
and with the Federal Communications Commission to make the Alert
Aggregator system operational. We also note that the Alliance for
Telecommunications Industry Solutions (ATIS) and the Telecommunications
Industry Association (TIA) are currently developing standards related
to the CMAS, particularly regarding the development of standards and
protocols for the ``C'' interface.
51. Comments. As we indicated in our CMAS First R&O, a majority of
commenters that addressed the issue supported the CMSAAC's proposed
deployment timeline.
52. Discussion. In our recent Order on Reconsideration, we noted
our intent that our rules would be implemented in a manner consistent
with the CMSAAC recommended timeline. We agree with commenters who
argue that the Alert Aggregator/Gateway must be a centralized, federal
entity. As noted above FEMA has only recently indicated that it can
serve as the Federal government entity that will provide the Alert
Aggregator and Gateway functions, and has not stated when it would be
able to provide the Government Interface Design specifications.
However, in order to ensure that all Americans have the capability to
receive timely and accurate alerts, warnings, and critical information
regarding disasters and other emergencies irrespective of what
communications technologies they use, we find that if FEMA has not
issued its Government Interface Design specifications by December 31,
2008, the Commission will reconvene an emergency meeting of the CMSAAC
to address the issuance of Government Interface Design specifications.
53. Because of this ambiguity and the need to ensure timely
deployment of the CMAS, regardless of the federal entity serving as the
Aggregator/Gateway, the CMAS timeline rules we adopt today do not
implement the specific target dates recommended by the CMSAAC. Rather,
as stated in our recent Order on Reconsideration, participating CMS
providers must begin development and testing of the CMAS in a manner
consistent with our new part 10 rules no later than ten months from the
date that FEMA makes the Government Interface Design specifications
available. As we noted in the Order on Reconsideration, this 10-month
period corresponds to the interval recommended by the CMSAAC for the
completion of industry standards necessary for CMAS development and
testing. However, we further require that, at the end of this 10-month
period, participating CMS providers shall begin
[[Page 54521]]
an eighteen month implementation and deployment period before the CMAS
can be made available to the public. We recognize that this is an
accelerated deployment schedule compared to that recommended by the
CMSAAC. Specifically, following the CMSAAC recommendations, the
timeframe would be as long as twenty-four months following the 10-month
industry standardization process, as compared to the eighteen months
that we order today. Because of the important public safety
considerations before us, including the need for the provision of
timely and vital emergency information to an increasingly mobile
society and our continuing mandate under the Communications Act to
promote the safety of life and property through the use of wire and
radio communications, we find that this accelerated schedule is in the
public interest. Moreover, providing an eighteen month implementation
and deployment period still allows more than twenty-four months from
the date the Government Interface Design specifications are available
for deployment to occur.
54. We also agree with the CMSAAC recommendations that during this
development and deployment period, the Alert Gateway and Alert
Aggregator should collaborate with participating CMS providers to test
the CMAS. In light of what we expect to be a collaborative process, the
considerable involvement of the carriers to date in the development of
the CMAS system and operational parameters, and the compelling need to
provide this capability to the public in a prompt fashion, we believe
even this accelerated schedule provides a sufficient amount of time to
CMS providers for deployment of the CMAS.
Procedural Matters
D. Final Regulatory Flexibility Act Analysis
55. As required by section 604 of the Regulatory Flexibility Act
(RFA), 5 U.S.C. 604, the Commission has prepared a Final Regulatory
Flexibility Analysis of the possible impact of the rule changes
contained in this R&O on small entities. The Final Regulatory
Flexibility Act Analysis is set forth in Appendix A, infra. The
Commission's Consumer & Government Affairs Bureau, Reference
Information Center, will send a copy of this R&O, including the Final
Regulatory Flexibility Act Analysis, to the Chief Counsel for Advocacy
of the Small Business Administration.
E. Final Paperwork Reduction Act of 1995 Analysis
56. The initial election that CMS providers must make pursuant to
section 602(b)(2)(A) of the WARN Act, discussed above, has been granted
pre-approval by OMB. This R&O may also contain new information
collection requirements subject to the Paperwork Reduction Act of 1995
(PRA), Public Law 104-13. If the Commission determines that the R&O
contains collection requirements subject to the PRA, it will be
submitted to the Office of Management and Budget (OMB) for review under
section 3507 of the PRA at the appropriate time and the Commission will
publish a separate notice inviting comment. 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, we note that, pursuant to the Small
Business Paperwork Relief Act of 2002, Public Law 107-198, see 44
U.C.S. 3506(c)(4), we will seek specific comment on how the Commission
might ``further reduce the information collection burden for small
business concerns with fewer than 25 employees.''
F. Congressional Review Act Analysis
57. The Commission will send a copy of the R&O to Congress and the
Government Accountability Office pursuant to the Congressional Review
Act, see 5 U.S.C. 801(a)(1)(A).
G. Alternative Formats
58. 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.
Ordering Clauses
59. 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
R&O is hereby adopted. The rules adopted in the R&O become effective
October 22, 2008. Election to participate in CMAS must be made no later
than 30 days after the release of this order.
It is further ordered that the Commission's Consumer and Government
Affairs Bureau, Reference Information Center, shall send a copy of this
R&O, including the Final Regulatory Flexibility Analysis, to the Chief
Council for Advocacy of the Small Business Administration.
Final Regulatory Flexibility Analysis
60. 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.
H. Need for, and Objectives of, the Order
61. Section 602(b) of the WARN Act requires the Commission to
``complete a proceeding--(A) to allow any licensee providing commercial
mobile service * * * to transmit emergency alerts to subscribers to, or
users of, the commercial mobile service provided by such license; (B)
to require any licensee providing commercial mobile service that
elects, in whole or in part, * * * not to transmit emergency alerts to
provide clear and conspicuous notice at the point of sale of any
devices with which its commercial mobile service is included, that it
will not transmit such alerts via the service it provides for the
device; and (C) to require any licensee providing commercial mobile
service that elects * * * not to transmit emergency alerts to notify
its existing subscribers of its election.'' Although the CMAS NPRM
solicited comment on issues related to section 602(a) (CMS alert
regulations) and 602(c) (Public Television Station equipment
requirements), this CMAS Third R&O only addresses issues raised by
section 602(b) of the WARN Act. Accordingly, this FRFA only addressees
the manner in which any commenters to the IRFA addressed the
Commission's adoption of standards and requirements for the CMAS as
required by section 602(b) of the WARN Act.
62. This CMAS Third R&O adopts rules necessary to allow any CMS
provider to transmit emergency alerts to its subscribers; to require
that CMS providers that elect, in whole or in part,
[[Page 54522]]
not to transmit emergency alerts provide clear and conspicuous notice
at the point of sale of any CMS devices that it will not transmit such
alerts via that device; and to require CMS providers that elect not to
transmit emergency alerts to notify their existing subscribers of their
election.
I. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
63. 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., which supported the
Commission's adoption of the Commercial Mobile Service Alert Advisory
Committee's (CMSAAC) recommendations. Interstate Wireless did not
comment specifically on the IRFA, nor did it comment on any issues
directly relating to section 602(b) of the WARN Act.
J. Description and Estimate of the Number of Small Entities to Which
Rules Will Apply
64. 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).
65. 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 category, we 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, we estimate that the majority of wireless firms can be considered
small.
66. Cellular 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.
67. Auctions. Initially, we note 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.
68. 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.
69. 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
R&O. 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.
70. Wireless Communications Services. 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 services
(WCS) auction as an entity with average gross revenues of $40 million
for each of the three preceding years, and a ``very small
[[Page 54523]]
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.
71. 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 R&O, the Commission reorganized the 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.
72. 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.
73. 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.
74. 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.''
75. Advanced Wireless Services. In the AWS-1 R&O, 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 R&O 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 R&O 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 R&O also provides small businesses with a bidding credit of 15
percent and very small businesses with a bidding credit of 25 percent.
76. 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, we 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, we estimate
that the majority of wireless firms can be considered small. Thus,
under this
[[Page 54524]]
category, the majority of firms can be considered small.
77. In the Paging Third R&O, we 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, we estimate that 360 are small, under the SBA-approved small
business size standard.
78. 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 services (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 auction, there were seven winning bidders that qualified as ``very
small business'' entities, and one that qualified as a ``small
business'' entity.
79. Wireless Communications Equipment Manufacturers. While these
entities are merely indirectly affected by our action, we are
describing 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.
80. 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.
81. Software Publishers. While these entities are merely indirectly
affected by our action, we are 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, we estimate that the majority of
the firms in this category are small entities that may be affected by
our action.
K. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
82. This R&O 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 R&O 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, we note that pursuant to the Small Business Paperwork Relief
Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we
previously sought specific comment on how the Commission might
``further reduce the information collection burden for small business
concerns with fewer than 25 employees.
L. Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
83. 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.''
84. As noted in paragraph 2 above, this CMAS Third R&O deals only
with the WARN Act section 602(b) requirement that the Commission adopt
rules necessary to allow any CMS licensee to transmit emergency alerts
to
[[Page 54525]]
its subscribers; to require that CMS providers that elect, in whole or
in part, not to transmit emergency alerts, provide clear and
conspicuous notice at the point of sale of any CMS devices that it will
not transmit such alerts via that device; and to require CMS providers
that elect not to transmit emergency alerts, to notify their existing
subscribers of their election. The entities affected by this order were
largely the members of the CMSAAC. In its formation of the CMSAAC, the
Commission made sure to include representatives of small businesses
among the advisory committee members. Also, as we indicate by our
treatment of the comments of Interstate Wireless in paragraph 4 above,
the requirements and standards on which the Commission sought comment
already contain concerns raised by small businesses. The WARN ACT NPRM
also sought comment on a number of alternatives to the recommendations
of the CMSAAC, such as the Digital EAS and FM sub-carrier based alerts.
In its consideration of these and other alternatives the CMSAAC
recommendations, the Commission has attempted to impose minimal
regulation on small entities to the extent consistent with our goal of
advancing our public safety mission by adopting requirements and
standards for a CMAS that CMS providers would elect to provide alerts
and warnings to their customers. The affected CMS providers have
overwhelmingly expressed their willingness to cooperate in the
formation of the CMAS, and we anticipate that the standards and
requirements that we adopt in this order will encourage CMS providers
to work with other industry and government entities to complete and
participate in the CMAS.
List of Subjects in 47 CFR Part 10
Alert and warning, AMBER alert, Commercial mobile service provider.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
0
For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR 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.
Subpart A--General Information
0
2. Section 10.10 is amended by adding paragraphs (g) through (j) to
read as follows:
Sec. 10.10 Definitions.
* * * * *
(g) ``C'' Interface. The interface between the Alert Gateway and
CMS provider Gateway.
(h) CMS provider Gateway. The mechanism(s) that supports the ``C''
interface and associated protocols between the Alert Gateway and the
CMS provider Gateway, and which performs the various functions
associated with the authentication, management and dissemination of
CMAS Alert Messages received from the Alert Gateway.
(i) CMS provider infrastructure. The mechanism(s) that distribute
received CMAS Alert Messages throughout the CMS provider's network,
including cell site/paging transceivers and perform functions
associated with authentication of interactions with the Mobile Device.
(j) Mobile Devices. The subscriber equipment generally offered by
CMS providers that supports the distribution of CMAS Alert Messages.
0
3. Section 10.11 is revised to read as follows:
Sec. 10.11 CMAS Implementation Timeline.
Notwithstanding anything in this part to the contrary, a
participating CMS provider shall begin an 18 month period of
development, testing and deployment of the CMAS in a manner consistent
with the rules in this part no later than 10 months from the date that
the Federal Alert Aggregator and Alert Gateway makes the Government
Interface Design specifications available.
0
4. Add a new Subpart B to read as follows:
Subpart B--Election to Participate in Commercial Mobile Alert System
Sec.
10.210 CMAS Participation Election Procedures.
10.220 Withdrawal of Election to Participate in CMAS.
10.230 New CMS Providers Participation in CMAS.
10.240 Notification to New Subscribers of Non-Participation in CMAS.
10.250 Notification to Existing Subscribers of Non-Participation in
CMAS.
10.260 Timing of Subscriber Notification.
10.270 Subscribers' Right To Terminate Subscription.
10.280 Subscribers' Right To Opt Out of CMAS Notifications.
Subpart B--Election to Participate in Commercial Mobile Alert
System
Sec. 10.210 CMAS Participation Election Procedures.
(a) A CMS provider that elects to transmit CMAS Alert Messages, in
part or in whole, shall electronically file with the Commission a
letter attesting that the Provider:
(1) Agrees to transmit such alerts in a manner consistent with the
technical standards, protocols, procedures, and other technical
requirements implemented by the Commission; and
(2) Commits to support the development and deployment of technology
for the ``C'' interface, the CMS provider Gateway, the CMS provider
infrastructure, and mobile devices with CMAS functionality and support
of the CMS provider selected technology.
(b) A CMS provider that elects not to transmit CMAS Alert Messages
shall file electronically with the Commission a letter attesting to
that fact.
(c) CMS providers shall file their election electronically to the
docket.
Sec. 10.220 Withdrawal of Election to Participate in CMAS.
A CMS provider that elects to transmit CMAS Alert Messages, in part
or in whole, may withdraw its election without regulatory penalty or
forfeiture if it notifies all affected subscribers as well as the
Federal Communications Commission at least sixty (60) days prior to the
withdrawal of its election. In the event that a carrier withdraws from
its election to transmit CMAS Alert Messages, the carrier must notify
each affected subscriber individually in clear and conspicuous language
citing the statute. Such notice must promptly inform the customer that
he or she no longer could expect to receive alerts and of his or her
right to terminate service as a result, without penalty or early
termination fee. Such notice must facilitate the ability of a customer
to automatically respond and immediately discontinue service.
Sec. 10.230 New CMS Providers Participation in CMAS.
CMS providers who initiate service at a date after the election
procedure provided for in Sec. 10.210(d) and who elect to provide CMAS
Alert Messages, in part or in whole, shall file electronically their
election to transmit in the manner and with the attestations described
in Sec. 10.210(a).
Sec. 10.240 Notification to New Subscribers of Non-Participation in
CMAS.
(a) A CMS provider that elects not to transmit CMAS Alert Messages,
in part
[[Page 54526]]
or in whole, shall provide clear and conspicuous notice, which takes
into account the needs of persons with disabilities, to new subscribers
of its non-election or partial election to provide Alert messages at
the point-of-sale.
(b) The point-of-sale includes stores, kiosks, third party reseller
locations, web sites (proprietary or third party), and any other venue
through which the CMS provider's devices and services are marketed or
sold.
(c) CMS providers electing to transmit alerts ``in part'' shall use
the following notification:
NOTICE REGARDING TRANSMISSION OF WIRELESS EMERGENCY ALERTS
(Commercial Mobile Alert Service)
[[CMS provider]] has chosen to offer wireless emergency alerts
within portions of its service area, as defined by the terms and
conditions of its service agreement, on wireless emergency alert
capable devices. There is no additional charge for these wireless
emergency alerts.
Wireless emergency alerts may not be available on all devices or
in the entire service area, or if a subscriber is outside of the
[[CMS provider]] service area. For details on the availability of
this service and wireless emergency alert capable devices, please
ask a sales representative, or go to [[CMS provider's URL]].
Notice required by FCC Rule 47 CFR 10.240 (Commercial Mobile
Alert Service).
(d) CMS providers electing in whole not to transmit alerts shall
use the following notification language:
NOTICE TO NEW AND EXISTING SUBSCRIBERS REGARDING TRANSMISSION OF
WIRELESS EMERGENCY ALERTS (Commercial Mobile Alert Service)
[[CMS provider]] presently does not transmit wireless emergency
alerts. Notice required by FCC Rule 47 CFR 10.240 (Commercial Mobile
Alert Service).
Sec. 10.250 Notification to Existing Subscribers of Non-Participation
in CMAS.
(a) A CMS provider that elects not to transmit CMAS Alert Messages,
in part or in whole, shall provide clear and conspicuous notice, which
takes into account the needs of persons with disabilities, to existing
subscribers of its non-election or partial election to provide Alert
messages by means of an announcement amending the existing subscriber's
service agreement.
(b) For purposes of this section, a CMS provider that elects not to
transmit CMAS Alert Messages, in part or in whole, shall use the
notification language set forth in Sec. 10.240 (c) or (d)
respectively, except that the last line of the notice shall reference
FCC Rule 47 CFR 10.250, rather than FCC Rule 47 CFR 10.240.
(c) In the case of prepaid customers, if a mailing address is
available, the CMS provider shall provide the required notification via
U.S. mail. If no mailing address is available, the CMS provider shall
use any reasonable method at its disposal to alert the customer to a
change in the terms and conditions of service and directing the
subscriber to voice-based notification or to a Web site providing the
required notification.
Sec. 10.260 Timing of Subscriber Notification.
A CMS provider that elects not to transmit CMAS Alert Messages, in
part or in whole, must comply with Sec. Sec. 10.240 and 10.250 no
later than 60 days following an announcement by the Commission that the
Alert Aggregator/Gateway system is operational and capable of
delivering emergency alerts to participating CMS providers.
Sec. 10.270 Subscribers' Right To Terminate Subscription.
If a CMS provider that has elected to provide CMAS Alert Messages
in whole or in part thereafter chooses to cease providing such alerts,
either in whole or in part, its subscribers may terminate their
subscription without penalty or early termination fee.
Sec. 10.280 Subscribers' Right To Opt Out of CMAS Notifications.
(a) CMS providers may provide their subscribers with the option to
opt out of both, or either, the ``Child Abduction Emergency/AMBER
Alert'' and ``Imminent Threat Alert'' classes of Alert Messages.
(b) CMS providers shall provide their subscribers with a clear
indication of what each option means, and provide examples of the types
of messages the customer may not receive as a result of opting out.
[FR Doc. E8-21946 Filed 9-19-08; 8:45 am]
BILLING CODE 6712-01-P