Encouraging the Provision of New Technologies and Services to the Public
Federal Register, Volume 83 Issue 65 (Wednesday, April 4, 2018)
Federal Register Volume 83, Number 65 (Wednesday, April 4, 2018)
Proposed Rules
Pages 14395-14400
From the Federal Register Online via the Government Publishing Office www.gpo.gov
FR Doc No: 2018-06741
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FEDERAL COMMUNICATIONS COMMISSION
GN Docket No. 18-22; FCC 18-18
Encouraging the Provision of New Technologies and Services to the Public
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Commission is committed to improving the process for enabling the introduction of new technologies and services that serve the public interest and made available to the public on a timely basis. Therefore, the Commission proposes guidelines and procedures to implement.
DATES: Comments are due May 4, 2018. Reply comments are due May 21, 2018.
FOR FURTHER INFORMATION CONTACT: Paul Murray, Office of Engineering and Technology, 202-418-0688, email protected.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice of Proposed Rulemaking, GN Docket No. 18-22, FCC 18-18, adopted February 22, 2018, and released February 23, 2018. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW, Washington, DC 20554. The full text may also be downloaded at: https://transition.fcc.gov/Daily_Releases/Daily_Business/2018/db0223/FCC-18-18A1.pdf. People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to email protected or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).
Synopsis
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Background. Section 7, entitled ``New Technologies and Services,'' reads in its entirety as follows:
(a) It shall be the policy of the United States to encourage the provision of new technologies and services to the public. Any person or party (other than the Commission) who opposes a new technology or service proposed to be permitted under this Act shall have the burden to demonstrate that such proposal is inconsistent with the public interest.
(b) The Commission shall determine whether any new technology or service proposed in a petition or application is in the public interest within one year after such petition or application is filed. If the Commission initiates its own proceeding for a new technology or service, such proceeding shall be completed within 12 months after it is initiated.
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Discussion. In this NPRM, the Commission proposes to adopt rules describing guidelines and procedures to implement the stated policy goal of section 7 ``to encourage the provision of new technologies and services to the public.'' Although the forces of competition and technological growth work together to enable the development and deployment of many new technologies and services to the public, the Commission has at times been slow to identify and take action to ensure that important new technologies or services are made available as quickly as possible. The Commission has sought to overcome these impediments by streamlining many of its processes, but all too often regulatory delays can adversely impact newly proposed technologies or services.
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Section 7 reflects clear Congressional intent to encourage and expedite provision of technological innovation that would serve the public interest. To better align purpose and practice, the Commission propose a set of rules that will allow the Commission to effectively breathe life into section 7. As noted above, this law applies to new technologies or services proposed to be permitted in a petition or application, as well as to Commission-initiated proceedings for new technologies and services.
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By its terms, Sec. 7 could apply to any petition or application that includes a proposal involving the use of new technologies and services. Accordingly, the Commission proposes to interpret Sec. 7 to include petitions for rulemaking or waiver of the Commission's rules as well as applications for authorization of any type of technology or service within the Commission's statutory purview, whether radio-based, wired, or otherwise. The Commission also proposes to interpret Sec. 7 to apply to any petitions or applications that properly could be resolved either by the Commission or by any Bureau or Office pursuant to delegated authority. Whether the Commission itself, or a particular Bureau or Office acting on delegated authority, would address the Sec. 7-related issue would depend on the particular filing, the nature of the request, and the kind of decision(s) and course(s) of action regarding the proposed new technology or service that may be deemed appropriate under the circumstances.
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The Commission proposes adopting a new subpart in part 1 that sets forth specific procedures and timetables for action with respect to requests in petitions or applications for Sec. 7 consideration. These procedures and timetables are designed to ensure that the Commission or Bureau/Office identifies and moves swiftly to promote new technologies and services that are in the public interest. These new rules would not replace or substitute for the Commission's existing rules for processing petitions and applications (e.g., the part 1 rules for rulemaking proceedings and for applications involving common carriers or wireless radio services, the part 25 rules for satellite service applications, the part 73 and 74 rules for broadcast service applications, among many other rule parts dealing with applications). Instead, they would specify additional steps to ensure that timely decisions are made on Sec. 7 requests suited to serve the public interest.
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Section 7 establishes a timeline by which the Commission must determine
Page 14396
whether a new technology or service proposed in a petition or application is in the public interest--i.e., one year after a petition or application that proposes a new technology or service is filed. However, the statute does not provide clear guidance about how to evaluate requests for consideration under Sec. 7, nor does it prescribe what form of action the Commission must take when making a public interest finding about the proposed new technology or service. The rules that the Commission proposes, described below, are designed to provide such guidance and would ensure that any petition or application that includes a Sec. 7-related request is evaluated under a coherent and consistent set of procedures.
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Filing Requirements and Related Factors. The Commission proposes specific filing requirements for petitions and applications that include a request for section 7 consideration. As noted above, while the existing procedures for any particular petition or application would remain applicable, the voluntary inclusion of a Sec. 7 request would require that additional steps be taken to address whether a new technology or service is being proposed that would serve the public interest and, if so, what specific course of action should be taken to promote such technology or service. The Commission, or the appropriate Bureau or Office, in exercising its discretion, would make a public interest determination concerning the proposed technology or service, with any qualifying Sec. 7 request requiring further action within one year.
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The Commission proposes that a petitioner or applicant must expressly request consideration under section 7 at the time of the initial filing, and must include a detailed description of the proposed ``new technology or service'' and how it differs from existing technologies or services. In addition, the Sec. 7 request must include both qualitative and quantitative analyses showing how such new technology or service would be in the public interest. The Commission also proposes to codify a set of factors, described below, all of which the petitioner or applicant must address with respect to its Sec. 7 request in the proceeding, and by which the Commission or the Bureau or Office will evaluate whether the proposed technology or service is ``new'' and would serve the public interest.
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First, because the timeline for a Commission public interest finding regarding a Sec. 7 request is only one year from the filing date of the petition or application that proposes a new technology or service, the Commission proposes that the petition or application include a separate Sec. 7 request that demonstrates that the new technology or service proposed is both technically feasible and available for commercial use/application, not merely theoretical or speculative, so that the public benefits from the proposed new technology or service can be evaluated in a meaningful way and can be realized as soon as practicable.
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Second, to evaluate the merits of a section 7 request, the Commission proposes several categories of factors to identify whether proposed technologies or services would be considered ``new.'' In considering these factors, we note that determining what is ``new'' will not always be easy, particularly considering that technologies and services in the communications industry are often evolutionary rather than revolutionary. Petitions and applications that include a Sec. 7 request would be required to include a sufficient demonstration that the proposed technology or service meets one or more of the specified factors. For example, if the proposed technology or service has not previously been authorized by the Commission, the Sec. 7 request in the petition or application must explain how the function and performance of the technology or service differs in essential or fundamental respects from others that are already authorized. If the proposed technology or service would make extraordinary or truly significant enhancements to a previously-authorized technology or service, the Sec. 7 request in the petition or application would need to specifically quantify, qualify, or otherwise explain in sufficient detail what is so new that it warrants consideration under Sec. 7.
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Finally, the Commission proposes that the request for Sec. 7 consideration must show that the proposed new technology or service would be in the public interest by, for example, promoting innovation and investment, providing new competitive choices, providing new technologies that enable accessibility to people with disabilities, or meeting public demand for new or significantly improved services in unserved and underserved areas.
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In addition, the underlying petition or application that includes the Sec. 7 request must comply with other legal or regulatory requirements applicable to consideration of the various technical and policy issues raised in the petition or application, including, as applicable, any statutory requirements and the established licensing rules and rights of existing licensees, regulatees, or users. Petitions and applications, including the Sec. 7-related proposal, shall be filed electronically using the Commission database that is appropriate for the type of petition or application being filed, and a copy also shall be sent electronically to the Chief(s) of the authorizing Bureau(s) or Office(s) (e.g., Wireless Telecommunications, Wireline Competition, International, and/or Media Bureaus) as well as the Chief of the Office of Engineering and Technology, or to an appropriate mailbox designated by them. The petitioner or applicant must make clear in the filing that it is seeking consideration under section 7.
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The proposed technological and service factors that we propose to adopt are intended to single out for consideration and action those proposals that involve significant breakthroughs or are truly innovative, rather than those that are foreseeable or incremental outgrowths of existing technologies or services. The Commission seeks comment on these factors or other factors that would be appropriate with effective implementation of Sec. 7 goals. What indicia should the Commission use when evaluating what would constitute a ``new'' technology, as distinguished from an existing or evolving technology? Similarly, the Commission requests comment on what would constitute a ``new'' service, as distinguished from existing services, and thus be subject to Sec. 7 consideration.
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Processing and Initial Assessment. The proposed rules would provide for processing of a Sec. 7 request that is included as part of a petition or application as follows. When a petition or application that includes a Sec. 7 request is filed, both the authorizing Bureau(s)/Office(s) and the Office of Engineering and Technology (OET) will review the filing and issue a public notice on both the petition/
application and the Sec. 7 request. OET will assemble a team of Commission staff with relevant expertise, including at least one representative from any Bureau(s) or Office(s) with subject matter expertise, to conduct an initial review to determine if the Sec. 7 request is complete and will be accepted for filing. The Commission proposes that the filing date of the request for consideration under Sec. 7, and hence the initiation of the review period under the Sec. 7 process, will be the date that the petition/application including the Sec. 7 request is complete as filed, and thus can be accepted for filing.
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A public notice will be issued after the authorizing Bureau(s)/
Office(s) and the OET-led review team determines that the petition or application, including the Sec. 7 request, is complete and ready for processing. This
Page 14397
review would ensure that the petition or application that includes a Sec. 7 claim complies both with the Sec. 7-related requirements proposed and the other legal or regulatory requirements applicable to the particular petition or application. This Public Notice will identify the date the request was complete as filed, as well as relevant deadlines for agency action.
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90-Day Determination. Next, the Commission proposes that the OET-led team will determine whether the technology or service proposed qualifies as a new technology or service for consideration under section 7 within 90 days. To the extent appropriate or necessary, such determination could take into consideration any comments, including any oppositions, received in response to the public notice regarding the Sec. 7 request. The OET-led team will notify the petitioner or applicant in writing of its determination within 90 days after the public notice is issued, or sooner where appropriate or practicable, and its determination will be included in the public record of the particular proceeding relating to the petition or application. This determination would promote timely Commission or Bureau/Office action to enable the provision of new technologies or services to the public that could serve the public interest.
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If the determination is positive--that is, that the request qualifies for Sec. 7 treatment--we propose to commit the agency to swift action, consistent with Sec. 7, to evaluate that technology or service. Conversely, the Commission proposes not to make a negative finding binding on the agency. Because this determination too will necessarily be conducted prior to a more complete evaluation by the Commission or the Bureau/Office of the various public interest benefits associated either with the particular petition/application or the proposed technology/service, the Commission or Bureau/Office, which would be informed of the OET-led determination, may itself later determine that a particular petition/application's proposed technology or service initially deemed ineligible nonetheless may ultimately merit Sec. 7 treatment. Additionally, the Commission seeks comment on what the proper notification-and-elevation process should be before releasing the 90-day determination, whether positive or negative. For instance, should OET notify the offices of the Commissioners 48 hours in advance, or some other length of time, of a pending 90-day determination? Should two Commissioners or a majority of the Commission be required to elevate the 90-day determination to a Commission-level vote? If elevated, how can we ensure prompt voting? For example, would five calendar days from elevation be sufficient time for Commissioners to register a vote? If a quorum of commissioners registers a vote by the deadline, should Commissioners not registering a vote be marked as ``not participating''? If less than a quorum of Commissioners registers a vote, should the OET-led team release the 90-day determination on its own?
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The Commission also proposes not to entertain petitions for reconsideration or applications for review of the 90-day determination. First, the determination only guides agency process and would not in itself constitute a final Commission or Bureau/Office order, decision, report, or action with respect to the particular petition/application or the public interest regarding use of the proposed technology/
service. Those public interest determinations fall squarely within the purview of the Commission or the Bureau/Office, which has the authority and responsibility to evaluate the various elements of the petition or application as well as the use of the proposed technology or service set forth in the petition or application, and to make associated public interest findings. Thus, the OET-led team's evaluation of the Sec. 7 request would merely serve as a step in the overall process of considering the proposed technology or service included in the underlying petition or application and reaching the merits of the public interest determinations. Subjecting the OET-led staff determination to immediate and formal reconsideration could have the perverse effect of slowing consideration of the more important core issues that are before the Commission or Bureau/Office for determination--namely, the merits and public interest associated with the particular petition or application (and its constituent pieces), and how best to ensure that the proposed technology or service (whether new or not) can be used to serve the public. Such early formal review could also result in scarce staff resources remaining focused on the extent to which a technology or service is ``new,'' which can be a complicated or involved question, thus diverting needed resources away from the more important question of how best to address the underlying issues. We also note that while a negative determination would not be reviewable upon issuance, parties nonetheless would have the opportunity to comment on the determination and ask that the Commission or Bureau/Office reach a different conclusion when it evaluates the full record and takes action with respect to the petition/application or the proposed technology/service.
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As required by section 7, any person or party (other than the Commission) who opposes a new technology or service has the burden to demonstrate that such a new technology or service is inconsistent with the public interest. For example, it would not be sufficient for someone to oppose a proposed technology or service merely because it might cause economic harm to its own service or disrupt a particular sector of the economy; the statute's stated goal to promote new technologies and services in effect requires that opponents address the potential public interest associated with the proposed technology or service, not their own private interests.
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Commission or Bureau/Office Review. For any petition/
application proposing a technology or service that receives a positive 90-day determination, the Commission or Bureau/Office will evaluate the record once complete, and decide within a year of the filing date the appropriate course of action with respect to the petition or application.
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Although Sec. 7 requires timely action by the Commission, it does not create a presumption in favor of granting (in whole or part) any particular petition or application that includes a proposal to provide such new technology or service. Indeed, it grants the agency plenary authority to dispose of the petition or application as it sees fit, including by initiating its own proceeding to explore matters further.
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In cases where the 90-day determination is positive, to the extent the Commission or Bureau/Office determines that the petition/
application proposes a technology or service that qualifies under Sec. 7, it would be obligated to take some concrete action within one year that advances the development and use of new technologies or services that are in the public interest. The Commission seeks comment on how to apply these procedures in instances where outside parties are either collaborating on or disputing the merits of a new technology or service. Should the Commission take these types of considerations into account when determining how to meet the one year deadline imposed by a Sec. 7 finding? In contrast, if the Commission or the Bureau/Office finds that a petition/application is not proposing use of new technologies or services, and thus does not include any request that qualifies for
Page 14398
consideration under Section 7, that petition/application would be handled under the existing Commission processes that apply generally to petitions and applications under the applicable rules.
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Pending Petitions and Applications. The new rules and procedures discussed above would apply with respect to all newly filed petitions or applications that include a Sec. 7 request. For any petition or application already pending at the time that the new rules would become effective, the Commission proposes a variant of this approach to accommodate any petitioner or applicant who also seeks consideration under Sec. 7. In such cases, the petitioner or applicant would supplement its filing with a specific Sec. 7 request that meets the criteria outlined above, which would be followed by issuance of a public notice focused on the Sec. 7-specific request, the 90-day determination, and action within a year of the filing if merited.
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Commission-initiated Proceedings. Section 7 provides that if the Commission initiates its own proceeding for a new technology or service, such proceeding must be completed within a year after it is initiated. The Commission seek comments on how to ensure the Commission complies with this statutory provision. For instance, what factors should the Commission weigh in deciding whether to initiate a proceeding on its own under Sec. 7? Additionally, when the Commission itself does initiate a proceeding that it determines would trigger the Sec. 7 timeline, should it identify the type of action(s) that it plans to complete within a year that would promote such new technology or service, so that it can in fact complete such action(s) within one year, or, does the statutory provision require a final order? The Commission also seeks comment on the various issues raised above and on alternative approaches to implementing procedures to ensure compliance with the Sec. 7 requirements.
Procedural Matters
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Paperwork Reduction Analysis. This document contains proposed new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.
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Initial Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities of the policies and rules proposed in the FNPRM. The IRFA is found in Appendix B. The Commission requests written public comment on the IRFA. Comments must be filed in accordance with the same filing deadlines as comments filed in response to the NPRM, and must have a separate and distinct heading designating them as responses to the IRFA. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of this NPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration, in accordance with the Regulatory Flexibility Act.
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Comment Filing Procedures. Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
ssquf Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.
ssquf Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
ssquf All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.
ssquf Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
ssquf U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington DC 20554.
People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to email protected or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).
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The proceeding that this Notice initiates shall be treated as a ``permit-but-disclose'' proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must
Page 14399
be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.
Ordering Clauses
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It is ordered that, pursuant to Sec. Sec. 1, 4(i), 4(j) and 7 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j) and 157, this Notice of Proposed Rulemaking is adopted.
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It is ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rule Making, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.
List of Subjects in 47 CFR Part 1
Administrative practice and procedure, Reporting and recordkeeping requirements and Telecommunications.
Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer, Office of the Secretary.
Proposed Rules
The Federal Communications Commission proposes to amend 47 CFR part 1 as follows:
Part 1 of Title 47 of the Code of Federal Regulations is proposed to be amended as follows:
0
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The authority citation of part 1 continues to read as follows:
Authority: 47 U.S.C. 34-39, 151, 154(i), 154(j), 155, 157, 160, 201, 225, 227, 303, 309, 332, 1403, 1404, 1451, 1452 and 1455.
PART 1--PRACTICE AND PROCEDURE
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Add Subpart U to read as follows:
Subpart U--Implementation of Section 7 of the Communications Act: New Technologies and Services
Sec.
1.6000 Purpose and scope.
1.6001 Terms and definitions.
1.6002 Filing requirements for petitions and applications in which consideration under section 7 is requested.
1.6003 Processing procedures for petitions or applications, including a determination within 90 days.
1.6004 Evaluating new technologies and services proposed in petitions or applications.
1.6005 Commission or Bureau/Office review.
1.6006 Commission-initiated proceedings for new technologies or services.
Authority: 47 U.S.C. 157.
Sec. 1.6000 Purpose and scope.
(a) The purpose of this subpart is to set out the procedures and terms by which the Commission will implement the provisions of Sec. 7 of the Communications Act of 1934, as amended, 47 U.S.C. 157, to encourage the provision of new technologies and services to the public. The procedures set forth in this subpart shall apply with respect to any petition or application proposing use of a new technology or service in which the petitioner or applicant requests consideration under section 7.
(b) The rules and procedures set forth in this subpart do not replace or substitute for the Commission's existing rules and procedures for processing that apply with respect to the particular petition or application submitted for consideration.
Sec. 1.6001 Terms and definitions.
(a) Terms used in this subpart have the following meanings:
Petition or application. Any request for Commission action, as required under the Communications Act or the Commission's rules, including, but not limited to, petitions for rulemaking, petitions for waiver of Commission rules, and applications for authorization to provide technologies or services to the public.
Service. An activity, method, or system that provides to the public the means of meeting a public need including, but not limited to, communications, industrial, or scientific uses authorized under the Communications Act.
Technology. The application of scientific knowledge in engineering to solve problems or invent useful tools for practical, industrial, or scientific uses that rely on radio-frequency, wired, or other means authorized under the Communications Act.
(b) For purposes of this subpart, the following dates shall apply:
(1) A petition or application that includes a proposal to permit use of a new technology or service, and for which the petitioner or applicant specifically requests consideration under Sec. 7, shall be deemed filed as of the date when the petition or application, including the request for consideration under section 7, is complete as filed; such date shall be used for computing the beginning date pursuant to Sec. 1.4(b) of this part.
(2) If the Commission initiates its own proceeding for a new technology or service under Sec. 7, the beginning date for the action taken is computed pursuant to Sec. 1.4(b) of this part.
Sec. 1.6002 Filing requirements for petitions and applications in which consideration under section 7 is requested.
(a) If a petitioner or applicant seeks consideration under Sec. 7, the petition or application shall include an express request for consideration under Sec. 7 when the petition or application initially is filed.
(b) The petition or application shall include:
(1) A detailed description of the proposed technology or service associated with the petition or application, and how it differs from existing technologies or services;
(2) A demonstration that the proposed technology or service satisfies Sec. 1.6004(a) and one or more of the factors in Sec. 1.6004(b), and
(3) A showing that the use of the proposed technology or service would be in the public interest as set forth in Sec. 1.6004(c).
(c) The petition or application shall comply with any legal or procedural requirements for the type of request being filed, whether required by statute, judicial precedent or Commission rules in this chapter, or include a request for waiver of Commission requirements.
(d) The petition or application shall be filed electronically through the Commission database that is appropriate for the type of request being filed, and a copy of the petition or application shall be sent electronically to the Chief(s) of the authorizing Bureau and/or Office and the Chief, Office of Engineering and Technology (OET), or to an appropriate mailbox designated by them.
(e) Section 7 consideration for pending petitions or applications. If a petition or application is already pending before the Commission at the time the rules in this subpart become effective, a petitioner or applicant that seeks Sec. 7 consideration must submit an express request for consideration under Sec. 7 that sets forth how it meets the specific requirements set forth in this section.
Sec. 1.6003 Processing procedures for petitions or applications, including a determination within 90 days.
(a) With regard to the specific request for consideration under Sec. 7, the Office of Engineering and Technology (OET) will assemble a team of Commission staff with appropriate expertise, including at least one representative from any Bureau(s) or Office(s) with subject matter expertise, to review the request to determine if it is complete and can be accepted for filing pursuant to Sec. 1.6001(b)(1). The team will determine whether the request provides the
Page 14400
information required by Sec. Sec. 1.6002 and 1.6004 of this part and complies with any other legal or procedural requirements necessary for processing.
(b) When the underlying petition or application is complete and accepted for filing, consistent with applicable rules and procedures, and the request for consideration under Sec. 7 is complete and accepted for filing pursuant to paragraph (a) of this section, a public notice seeking comment on the petition or application, including the proposed technology or service that the petitioner or applicant asserts as qualifying for Sec. 7 consideration, will be issued. This public notice will identify the date that the petition or application and the section 7 request is complete as filed, as well as any other relevant deadlines for agency action.
(c) Any person or party (other than the Commission) who opposes a new technology or service proposed by the petitioner or applicant shall have the burden to demonstrate that such proposed technology or service is inconsistent with the public interest.
(d) The OET-led team will make a determination within 90 days of the issuance of the public notice as to whether the technology or service proposed to be permitted qualifies as a new technology or service for consideration under Sec. 7. This team will make this determination by evaluation the Sec. 7 request pursuant to the factors set forth in Sec. 1.6004 of this part.
(1) The OET-led team will notify the petitioner or applicant in writing of its determination within these 90 days.
(2) The determination will be included in the public record in the proceeding.
(3) The Commission and Bureau(s)/Office(s) with subject matter expertise will be informed of this determination.
(4) This determination is not subject to review in petitions for reconsideration or applications for review.
(e) To the extent that the OET-led team determines that the request qualifies for Sec. 7 treatment, the agency shall be committed to taking swift action to evaluate the technology or service. A determination by the OET-led team that the request does not qualify for Sec. 7 treatment is not binding on the agency, and the Commission or the Bureau/Office may determine in its evaluation of the record that the request merits Sec. 7 treatment.
Sec. 1.6004 Evaluating the new technologies or services proposed in petitions or applications.
(a) The proposed technology or service shall be technically feasible and commercially viable; the Commission will not consider a proposed technology or service that is merely theoretical or speculative. Petitioners or applicants shall include a showing of technical feasibility and commercial viability for the proposed technology or service by including, for example, the results of experimental testing, technical analysis, or research.
(b) The proposed technology or service will be evaluated using one or more of the following factors.
(1) The technology or service has not previously been authorized by the Commission. This could include combining a previously-approved technology in new ways to improve performance or functionalities. The petition or application shall explain how the function and/or performance of the proposed technology or service differs in essential or fundamental respects from previously-approved technologies or services.
(2) The proposed technology or service is similar to one previously authorized but includes significant enhancements that result in new functionalities or improved performance. The petition or application shall explain how the proposed technology or service differs from previously-approved technologies or services, and shall specifically quantify or qualify the improvements in functionality or performance or otherwise explain in sufficient detail what is so new that it warrants consideration under Sec. 7.
(3) Other factors set forth by the petitioner or applicant, or factors that the Commission deems appropriate for the specific technology or service that is proposed.
(c) The petition or application shall include a showing that the proposed new technology or service would be in the public interest by, for example, explaining how the proposed technology or service would promote innovation and investment, provide new competitive choices to the public, provide new technologies that enable accessibility to people with disabilities, or meet public demand for new or significantly improved services in unserved and underserved areas.
Sec. 1.6005 Commission or Bureau/Office review.
(a) For any petition/application including a proposed technology or service that receives a positive 90-day determination, the Commission or Bureau/Office will evaluate the record once complete, and decide within a year of the filing date the appropriate course of action with respect to the petition or application.
(b) Although Sec. 7 requires timely action by the Commission, it does not create a presumption in favor of granting (in whole or part) any particular petition or application that includes a proposal to provide such new technology or service. The agency retains plenary authority to dispose of the petition or application and the proposed technology or service as it sees fit, including by initiating its own proceeding to explore matters further.
(c) In cases where the 90-day assessment is positive, to the extent the Commission or Bureau/Office determines that the petition or application proposes a technology or service that qualifies under Sec. 7, it would be obligated to take some concrete action within one year that advances the development and use of new technologies or services that are in the public interest.
(d) If the Commission or the Bureau/Office finds that a petition or application is not proposing use of new technologies or services, and thus does not include any request that qualifies for consideration under section 7, that petition or application would be handled under the existing Commission processes that apply generally to petitions and applications under the applicable rules.
Sec. 1.6006 Commission-initiated proceedings for new technologies or services.
If the Commission initiates its own proceeding for a new technology or service, such proceeding must be completed within a year after it is initiated.
FR Doc. 2018-06741 Filed 4-3-18; 8:45 am
BILLING CODE 6712-01-P
