Chairman Pai and the FCC last week continued their campaign of revamping FCC rules, this time by adopting a Report and Order tackling the Commission’s Commercial Mobile Radio Services (CMRS). The Order deletes Sections 20.7 and 20.9 of the Commission’s rules and is intended to generally eliminate an “outdated and incomplete list of certain services” and streamline rules across all spectrum bands by removing regulations that unnecessarily apply to some mobile service providers.

Photo by Derick Anies on Unsplash via the Creative Commons Licsense

Section 20.7 of the rules specified some, but not all, examples of services that meet the definition of “mobile services.” Section 20.9 of the rules provided a list of services that were presumed to be commercial mobile radio services. It also required applicants or licensees in those services to file a petition for waiver of that CMRS status in order to be classified instead as providers of Private Mobile Radio Service (“PMRS”). Under Section 332 of the Communications Act, and numerous other FCC rules, CMRS providers have significantly more regulatory obligations than PMRS providers, and CMRS providers are in many ways treated as “common carriers.”

The Order notes that while “Section 20.9’s regulatory treatment of certain service bands may well have been a reasonable tool when it was adopted, it was based on assumptions that no longer apply—namely that a licensee would offer a service restricted either to CMRS or PMRS use rather than seek to have the flexibility to operate as both.”

Furthermore, the Order goes on to note that in recent years, “the Commission’s spectrum regulation has turned toward a flexible use model that no longer supports this particular treatment embedded in our rules.” The Commission points out that because of Section 20.9 of the rules, some applicants that might otherwise have their applications granted very quickly instead have to file waivers or similar pleadings to be regulated as PMRS providers, which adds unnecessary cost and delay to the application process.

Changes in technologies and the markets for spectrum also resulted in the need for these sorts of waivers, or related regulatory requests. For example, spectrum allocated for Automated Maritime Telecommunications Systems (“AMTS”) was presumed to be CMRS in Section 20.9 of the Commission’s rules. However, due to the growth in the use of cellular phones, AMTS never really developed as the public commercial service originally envisioned, and now AMTS spectrum is used in some cases to provide Positive Train Control (“PTC”) or services for utilities. But, PTC cannot operate if the PTC facilities fulfill CMRS requirements to provide service to the general public. Therefore, rail carriers seeking to use this spectrum for PTC must file additional certifications requesting PRMS status and must demonstrate that they can only operate such systems on a private, internal use basis.

The Order states that nothing therein,

…is intended to substantively change the definitions of CMRS and PMRS in Section 20.3 of [the] rules, which generally track the statutory definitions and which provide sufficiently clear guidance to enable providers to continue to determine the nature of their services accurately. Nor [does the FCC] take any action in this Order to change the regulatory obligations that attach to CMRS operations or to PMRS operations. Entities may continue to provide both CMRS and PMRS under the same license, to the extent allowed by, and subject to, the statutes, rules, and requirements that otherwise apply to the particular service at issue.

Lurking to the side, the Commission’s Net Neutrality/ Open Internet Order debate leaked into this item. Commissioner Clyburn dissented, based on her concerns in the Open Internet proceedings regarding the classification of mobile broadband Internet access service. Clyburn said action in the Part 20/CMRS proceeding removes “certain important procedural safeguards” that could help parties demonstrate that a wireless company’s mobile broadband service should be classified as CMRS.

On the other hand, Commissioner Carr supported this Order on the basis that it eliminated a set of 20-year-old rules that did not “help level the regulatory playing field for wireless providers…” Instead, Carr said, this update to CMRS rules will “enable wireless networks in the U.S. to evolve with technology and to do so much more quickly than if they operators had to obtain government sign-off each step of the way.”

Keep watching Commlawblog for any updates on this proceeding. In the meantime, contact us if you have questions.