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Rule2022-14155

Review of Rules and Requirements for Priority Services

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Published

July 5, 2022

Effective

August 4, 2022

Issuing agencies

Federal Communications Commission

Abstract

In this document, the Federal Communications Commission (Commission) adopts changes to its priority services rules to reflect today's marketplace and governance framework and to explicitly authorize the prioritization of IP-based technologies. Specifically, it removes outdated language that may cause confusion or otherwise impede the use of IP-based technologies to support the provision of priority services for voice, data, and video communications. The Commission also amends the rules to reflect the current framework for administration of priority services by the Department of Homeland Security while eliminating burdensome and unnecessary requirements on service providers.

Full Text

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<title>Federal Register, Volume 87 Issue 127 (Tuesday, July 5, 2022)</title>
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[Federal Register Volume 87, Number 127 (Tuesday, July 5, 2022)]
[Rules and Regulations]
[Pages 39770-39790]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-14155]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[PS Docket No. 20-187; FCC 22-36; FR ID 92978]

Review of Rules and Requirements for Priority Services

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission
(Commission) adopts changes to its priority services rules to reflect
today's marketplace and governance framework and to explicitly
authorize the prioritization of IP-based technologies. Specifically, it
removes outdated language that may cause confusion or otherwise impede
the use of IP-based technologies to support the provision of priority
services for voice, data, and video communications. The Commission also
amends the rules to reflect the current framework for administration of
priority services by the Department of Homeland Security while
eliminating burdensome and unnecessary requirements on service
providers.

DATES: The final rule is effective August 4, 2022.

FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Chris Smeenk, Attorney Advisor, Operations and
Emergency Management Division, Public Safety and Homeland Security
Bureau, at (202) 418-1630 or <a href="/cdn-cgi/l/email-protection#4f0c273d263c611c222a2a21240f292c2c61282039"><span class="__cf_email__" data-cfemail="eead869c879dc0bd838b8b8085ae888d8dc0898198">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is summary of the Commission's Report
and Order, PS Docket No. 20-187; FCC 22-36, adopted on May 19, 2022,
and released on May 20, 2022. The full text of this document is
available at <a href="https://www.fcc.gov/document/fcc-modernizes-and-improves-its-priority-services-rules-0">https://www.fcc.gov/document/fcc-modernizes-and-improves-its-priority-services-rules-0</a>. To request this document in accessible
formats for people with disabilities (e.g., Braille, large print,
electronic files, audio format, etc.) or to request reasonable
accommodations (e.g., accessible format documents, sign language
interpreters, CART, etc.), send an email to <a href="/cdn-cgi/l/email-protection#791f1a1a4c494d391f1a1a571e160f"><span class="__cf_email__" data-cfemail="a8cecbcb9d989ce8cecbcb86cfc7de">[email&#160;protected]</span></a> or call the
FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530
(voice), (202) 418-0432 (TTY).
Paperwork Reduction Act: This document does not contain new
information collection requirements subject to the Paperwork Reduction
Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does
not contain any new or modified information collection burden for small
business concerns with fewer than 25 employees, pursuant to the Small
Business Paperwork Relief Act of 2002, Public Law 107-198, see 44
U.S.C. 3506(c)(4).
Congressional Review Act: The Commission believes, and the
Administrator of the Office of Information and Regulatory Affairs, OMB,
concurs that these rules are non-major. As such, the rules are non-
major under the Congressional Review Act, U.S.C. 804(2). The Commission
will send a copy of this Report and Order to Congress and the
Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

Synopsis

I. Introduction

1. In this Report and Order, we update and streamline the
Commission's priority services rules. These rules enable National
Security and Emergency Preparedness (NSEP) personnel to obtain
prioritized connectivity during emergency situations by authorizing
prioritized provisioning and restoration of communications facilities
and prioritized network access for wireless communications. The
priority services programs are used to ``maintain a state of readiness
[and] to respond to and manage any event or crisis . . . [that]
degrades or threatens the NSEP posture of the United States.''
2. The priority services rules have long been in need of an update
to account for changes in technology. The Commission's current rules
date back to the establishment of the Telecommunications Service
Priority (TSP) System in 1988 and the creation of the Priority Access
Service (PAS), more commonly referred to as Wireless Priority Service
(WPS), in 2000. These rules were originally developed when
communications networks were primarily based on circuit-switched
technologies. As such, the rules do not address the advanced
capabilities of next-generation communications technologies that
support data and voice services, or the ability of users at different
priority levels to share network capacity and resources.
3. In this Report and Order, we update our priority services rules
to reflect today's marketplace and governance framework and to
authorize explicitly the prioritization of next-generation technology.
Specifically, we remove outdated language that may cause confusion or
otherwise impede the use of next-generation technologies to support the
provision of priority services for voice, data, and video
communications. We also amend the rules to reflect the current
framework for administration of priority services by the Department of
Homeland Security (DHS) while eliminating burdensome and unnecessary
requirements on service providers. These changes will reduce regulatory
burdens and make our rules flexible enough to accommodate changing
administrative requirements and technological advances related to the
priority services programs.

II. Background

4. For years, NSEP personnel have had access to priority services
programs that support national command, control, and communications by
providing prioritized connectivity over commercial communications
infrastructure during national emergencies. Three specific programs
support prioritized connectivity for NSEP users of telecommunications
services: (1) TSP, (2) WPS, and (3) Government Emergency
Telecommunications Service (GETS), which provides prioritization
through the Public Switched Telephone Network. All three programs are
administered by DHS's Cybersecurity and Infrastructure Security Agency
(CISA). However, the Commission's rules only apply to TSP and WPS,
while GETS operates solely via contractual arrangements between DHS and
service providers.
5. TSP. The Commission's TSP rules require certain service
providers to prioritize the provisioning and restoration of
communications facilities to ``ensure effective NSEP telecommunication
services.'' The TSP rules apply, on a mandatory basis, to common
carrier services and ``services which are provided by government and/or
non-common carriers and are interconnected to common carrier
services.'' Service providers that are covered by the mandatory TSP
rules must ``maintain and provision and, if disrupted, restore
facilities and services'' in accordance with the prioritization levels
outlined in the TSP rules. The Commission designed the TSP System to
provide ``a means by which carriers may provide priority provisioning
or restoration service to a user without violating the unreasonable
preference prohibition of Title II of the Communications Act.'' The TSP
System ``allows the assignment of priority levels to any NSEP service''
across three time periods, or stress conditions: (1) Peacetime/Crisis/
Mobilizations; (2) Attack/War; and (3) Post-Attack/Recovery. There are
more than 2,000 organizations enrolled in TSP (e.g.,

[[Page 39771]]

military bases, federal agencies, hospitals) covering approximately
365,000 active circuits. Costs associated with TSP are governed by
tariff or contract and TSP users may be responsible for one-time setup
fees and monthly charges, in addition to the actual charges related to
provisioning and restoration of the service. The Commission's TSP rules
have not been substantively updated since they were initially adopted
in 1988.
6. WPS. The Commission's WPS rules permit, but do not require,
commercial mobile radio service (CMRS) providers to offer mobile
wireless priority services. If a service provider elects to offer WPS,
it must comply with the Commission's WPS rules, which establish the
following five priority levels (ordered from highest to lowest): (1)
Executive Leadership and Policy Makers; (2) Disaster Response/Military
Command and Control; (3) Public Health, Safety and Law Enforcement
Command; (4) Public Services/Utilities and Public Welfare; and (5)
Disaster Recovery. WPS is provided on an individual-device basis, with
users initiating wireless priority calls by entering a specified
feature code for each call in order to activate priority treatment for
that call. WPS users are responsible for commercial wireless
subscription and equipment costs. One of the driving forces behind the
FCC's decision to codify WPS rules was a concern that, in the absence
of such rules, a service provider's decision to give NSEP users
priority treatment might be considered a violation of the Act's non-
discrimination provisions. There are more than 606,000 authorized WPS
users across the U.S. and U.S. territories. The Commission's WPS rules
have not been updated since they were initially adopted in 2000.
7. Developments Since the Commission's Initial Adoption of the
Priority Services Rules. Both the telecommunications marketplace and
the administrative framework of the priority services programs have
evolved since the Commission adopted its priority services rules.
Consumers are increasingly moving away from legacy telephone services
that rely on traditional time-division multiplexing technology, and
toward internet Protocol (IP)-based and next-generation services.
Incumbent local exchange carriers are increasingly retiring copper
facilities and replacing them with fiber and wireless spectrum-based
technology that provides greater capacity and flexibility to support
advanced communications services. The Commission has actively supported
the transition from legacy networks to next-generation networks, and it
has taken measures to reduce regulatory barriers to this transition.
8. While the transition from legacy network technology to IP-based
technologies promises greater innovation, including for priority
services programs, it may pose transitional challenges for NSEP
communications that historically have relied on functionality found in
legacy technologies. As carriers replace their legacy systems with new
technologies and platforms, some of the features in priority services
programs that were designed to be used on legacy systems will be more
difficult and costly to maintain and ultimately could be rendered
inoperable. The Government Accountability Office has observed that it
is a ``challenge . . . that IP networks may not support existing
telecommunications `priority' services, which allow key government and
public-safety officials to communicate during times of crisis.''
Availability of priority services only on those traditional voice
networks may hamper the ability of NSEP personnel to make effective use
of cutting edge emergency response tools that rely on IP-supported data
network availability.
9. Federal Agency Administration/Oversight of Priority Services
Programs. Three agencies are primarily responsible for the oversight
and administration of priority services programs--DHS, the Executive
Office of the President (EOP), and the FCC. DHS is responsible for
``oversee[ing] the development, testing, implementation, and
sustainment of NS/EP communications,'' including the priority services
programs. DHS also maintains a Joint Program Office that is responsible
for ``coordination of programs that support NS/EP missions, priorities,
goals, and policy.'' DHS assists organizations with the enrollment
process and issues TSP authorization codes. DHS also manages WPS
through contract and reimbursement mechanisms. EOP is responsible for
``[p]olicy coordination, guidance, dispute resolution, and periodic in-
progress reviews'' of NSEP telecommunications functions. Within EOP,
the Office of Science and Technology Policy ``advise[s] the President
on prioritization of radio spectrum and wired communications that
support NS/EP functions'' and ``issue[s] an annual memorandum . . .
highlighting national priorities for . . . analyses, studies, research,
and development regarding NS/EP communications.'' The FCC, through the
Public Safety and Homeland Security Bureau, works with DHS to ensure
the priority services programs operate effectively and efficiently. The
Commission supports DHS in the ``operation and restoration of critical
communications systems and services'' by providing information on
communications infrastructure, service outages, and restoration.
10. Notice of Proposed Rulemaking to Update the TSP and WPS Rules.
In July 2020, the Commission adopted a Notice of Proposed Rulemaking
(NPRM) proposing to modernize its priority services rules to cover
priority treatment of voice, data, and video services for emergency
personnel. The NPRM followed two petitions that the National
Telecommunications and Information Administration (NTIA) filed on
behalf of DHS--one in July 2018 and another in July 2019--which asked
the Commission to update its TSP and WPS rules to reflect the current
operations of the programs, incorporate the current Executive Branch
governance structure, and address changes in technology and evolving
user needs. The Bureau sought comment on both petitions via public
notice.
11. In the NPRM, the Commission proposed to update its priority
services rules in several key respects. First, it proposed to extend
the rules to cover data, video, and IP-based voice services for NSEP
personnel. Second, it proposed to streamline the rules by removing
outdated requirements that may impede the use of IP-based technologies.
Third, it proposed to amend the rules to reflect current administrative
responsibilities for the priority services programs, while eliminating
burdensome and unnecessary administrative requirements. We received
nine comments and two reply comments in response to the NPRM. In
addition, CISA and the First Responder Network Authority (FirstNet)
submitted ex parte comments in December 2020. The comments generally
express support for updating our priority services rules as proposed in
the NPRM to reflect today's marketplace and governance framework and to
account for next-generation communications technology.

III. Discussion

12. Today, we update and streamline our priority services rules, as
proposed in the NPRM, with certain modifications. First, we adopt
changes that apply to both TSP and WPS, such as updating the
Commission's responsibilities for the priority services programs and
clarifying that service providers are authorized to offer
prioritization of next-generation services and technologies, including
IP-based voice, data, and video communications.

[[Page 39772]]

Second, we adopt specific changes that apply only to TSP or WPS. In the
TSP rules, we expand the list of services that are eligible for
priority treatment and clarify the timing and level of effort required
for provisioning and restoring service. In the WPS rules, we clarify
the operation of the priority levels and expand both the types of
services and the groups of users that are eligible for WPS. As
explained below, we find that these changes will substantially increase
the benefits to NSEP users and public safety while reducing the
regulatory costs imposed on providers of priority services.

A. Changes to Priority Services Rules

13. As noted above, the Commission's priority services rules have
not been substantively updated since they were initially adopted, which
has resulted in many provisions becoming outdated. In this section, we
adopt proposals from the NPRM to modernize both our TSP and WPS rules
to ensure they reflect current terminology, legal authorities, and
administrative practices.
14. Program Administration. We adopt the NPRM proposal to amend our
rules to reflect current responsibilities for administering the
priority services programs. The roles and responsibilities of some
federal agencies have shifted since these rules were originally
adopted. Likewise, we find that service providers and NSEP users, as
well as other federal agencies, will benefit from a description of the
Commission's own responsibilities for the programs. Accordingly, we
adopt the NPRM proposal, with minor revisions, to add the following
language to part 64, Appendix A and Appendix B:

The FCC: Performs such functions as are required by law,
including: (a) with respect to all entities licensed or regulated by
the FCC: the extension of or change in network facilities; the
discontinuance, reduction, or impairment of interstate services; the
control of common carrier rates, charges, practices, and
classifications; the construction, authorization, activation,
deactivation, or closing of radio stations, services, and
facilities; the assignment of radio frequencies to licensees; the
investigation of violations of FCC rules; and the assessment of
communications service provider emergency needs and resources; and
(b) supports the continuous operation and restoration of critical
communications systems and services by assisting the Secretary of
Homeland Security with infrastructure damage assessment and
restoration, and by providing the Secretary of Homeland Security
with information collected by the FCC on communications
infrastructure, service outages, and restoration, as appropriate.

15. We also adopt the NPRM proposal to eliminate the provisions of
part 64, Appendix A and Appendix B that describe the responsibilities
of the Executive Office of the President (EOP) for the priority
services programs. As noted in the NPRM, many of these responsibilities
have since been transferred to other federal agencies, particularly
DHS. In addition, while DHS and EOP have important responsibilities
related to the priority services programs, we find it unnecessary to
describe their functions in our rules.
16. Commenters generally support removing portions of the rules
that describe EOP's responsibilities because Executive Order 13618
transferred most of EOP's functions to other federal agencies. CISA is
the only commenter that opposes this change, contending that because
EOP ``retains immense WPS-related responsibilities'' and has
significant influence over TSP and WPS, the Commission's rules should
continue to describe EOP's responsibilities. We agree with the majority
of commenters that such description is unnecessary because EOP, DHS,
and other Executive Branch agencies derive their legal authority from
statutes and executive orders--not the Commission's rules. Thus,
removing these references from our rules will have no legal or
practical impact on the ability of these agencies to perform their
functions. In addition, specific Executive Branch agency
responsibilities for priority services could change in the future, in
which case any codification of these responsibilities in our rules
would become outdated and require further action by the Commission to
update the rules.
17. We also amend Appendix A and Appendix B to reflect the actual,
current administrative responsibilities and functions for the TSP and
WPS programs, consistent with our proposal in the NPRM. Commenters
generally oppose including rules that would require service providers
to comply with ``supplemental regulations and procedures'' established
by DHS. For example, CTIA asserts that such language could allow DHS to
retroactively alter contracts, which, in turn, could ``disrupt the
contractual bargaining dynamic'' between DHS and service providers.
Verizon and T-Mobile argue that ``without more explicit limitations on
DHS's discretion,'' such requirements ``could risk undermining the
Commission's intended light regulatory touch . . . as well as service
providers' and DHS's flexibility to address novel technical issues.''
Commenters also argue that the proposed language could violate the
Administrative Procedure Act by ``subjecting participating providers to
changing obligations without an opportunity for notice and comment.''
18. We adopt a dual approach in our modifications of the TSP and
WPS rules that reflects differences in the underlying programs. We
amend our TSP rules (Appendix A, section 5, as amended) by replacing
the references to EOP with DHS and modifying the terminology to
indicate that DHS issues ``policies'' rather than ``regulations'' for
TSP. However, we delete the corresponding provision in the WPS rules
(Appendix B, section 3). We believe this dual approach is appropriate
given the differing administrative frameworks governing TSP and WPS.
For TSP, DHS uses supplemental documents, including an Operations Guide
and Service Vendor Handbook, to outline the specific processes and
procedures that TSP providers must follow. However, DHS does not use
these supplemental documents for WPS, but rather, outlines specific
policies and procedures in its contractual arrangements with service
providers.
19. We do not agree with commenters who contend that the updated
TSP rule would undermine the flexibility of service providers and DHS
to address novel issues. The underlying rule has existed since the TSP
rules were initially adopted and there is no indication in the record
that it has led to imposition of unreasonable requirements on service
providers or otherwise negatively impacted the program. Moreover, the
rule only obligates TSP users and service providers to comply with DHS
policies and procedures that are ``consistent with'' Appendix A. In the
unlikely event that DHS were to issue policies and procedures that are
inconsistent with Appendix A, the rule does not obligate TSP users to
comply with them. Similarly, we do not believe the amended rule
violates the APA because (1) the DHS policies and procedures are
largely administrative in nature; and (2) if DHS were to issue
substantive rules without notice and comment, our rule does not
constrain TSP participants from challenging such rules on APA grounds.
20. Terminology. Consistent with our expansion of the priority
services rules to encompass IP-based services, discussed below, we
adopt our proposal to amend Appendix A and Appendix B, where
appropriate, to include these new services and technologies. First, we
replace certain references to ``telecommunications services'' with
``National Security Emergency Preparedness (NSEP) services,'' a

[[Page 39773]]

broader term that we define to include both telecommunications services
and all IP-based services. We adopt the NPRM proposal to amend the
definition of ``NSEP services'' in Appendix A as follows:

Telecommunications services or internet Protocol-based services
which are used to maintain a state of readiness or to respond to and
manage any event or crisis (local, national, or international),
which causes or could cause injury or harm to the population, damage
to or loss of property, or degrades or threatens the NSEP posture of
the United States. These services fall into two specific categories,
Emergency NSEP and Essential NSEP, and are assigned priority levels
pursuant to section 8 of this appendix.

We also adopt the same definition for ``NSEP services'' in Appendix
B, except for the last sentence, which is specific to TSP. Further, we
define the phrase ``internet Protocol (IP)-based services,'' as used in
the definition of ``NSEP services'' as: ``services and applications
that feature digital communications capabilities and which generally
use the internet Protocol.'' These changes will ensure that the
Commission's rules account for current service offerings and other
technologies that may someday qualify for priority treatment. As
discussed more fully below, commenters support updating our priority
services rules to expand the scope of the services that are eligible
for priority treatment.

B. Changes to Telecommunications Service Priority Rules

21. In this section, we adopt many of the proposed and requested
amendments to the Commission's TSP rules in part 64, Appendix A.
Specifically, we (1) eliminate certain outdated references; (2) expand
the list of services that are eligible for priority treatment; (3)
update the rules to reflect current oversight practices; (4) expand the
scope of federal employees authorized to invoke priority treatment; (5)
adopt rules to enhance the protection of TSP data; and (6) clarify the
timing and level of effort for provisioning and restoring service.
Finally, we decline to amend our rules to require service providers to
report provisioning and restoration times to DHS.
22. Outdated Provisions. As a result of the changes that have
occurred since the TSP rules were initially adopted, some provisions of
the rules have become outdated and unnecessary. To address this issue,
we eliminate section 2 of part 64, Appendix A, which outlines
requirements governing the migration of circuits from the legacy
Restoration Priority program and mandating the continuation of certain
Commission orders pending the implementation of the TSP program. We
also eliminate section 10 of Appendix A, which specifies procedures for
the resubmission of circuits that were assigned restoration priorities
before the Commission adopted the TSP rules. Commenters support these
changes.
23. Eligible Services. We adopt our proposal to maintain the
current requirement that common carriers must offer prioritized
restoration and provisioning of circuit-switched voice communication
services. We also adopt the NPRM proposal to amend our rules to make
clear that service providers may offer, on a voluntary basis,
prioritized provisioning and restoration of data, video, and IP-based
voice services. As originally drafted, the TSP rules were intended as a
regulatory carveout to allow common carriers to provide
telecommunications services, which would ordinarily be subject to the
non-discrimination requirements of Section 202, on a prioritized basis.
As such, the rules make no mention of the wide array of innovative
service offerings that are currently available to NSEP personnel. This
rule change makes clear that neither the Commission's rules nor the
Communications Act preclude TSP providers from offering priority
treatment of voice, data, and video services for which provisioning or
restoration priority levels are requested, assigned, and approved in
accordance with Appendix A. This amendment does not alter the
regulatory status or treatment of the authorized services; to the
extent that these services are not subject to Title II of the
Communications Act, they are not subject to the non-discrimination
provisions under Section 202 that the TSP rules were drafted to protect
against. We note that the orderly administration of the TSP program
requires that all participants--regardless of classification status--
follow the same set of rules. We therefore make clear that service
providers who offer TSP must comply with the Commission's TSP rules.
24. Commenters support clarifying that IP-based services are
eligible for TSP. We agree with commenters who assert that specific
authorization is not necessary, but including this provision in our
rules will prevent confusion among providers and NSEP users regarding
the services that are eligible for priority treatment. No commenter
objects to requiring service providers that elect to participate in the
TSP program with respect to IP-based services to comply with the TSP
rules.
25. However, we decline to adopt CISA's request that we require TSP
service providers to offer prioritized provisioning and restoration of
data, video, and IP-based voice services. While there may be potential
benefits to making such services mandatory, the record weighs in favor
of those services remaining voluntary at this time. First, we recognize
that not all TSP providers may be able to offer prioritization for all
IP-based services. In addition, because the NPRM discussed extending
the TSP rules to non-common carrier services only on a voluntary basis,
the record lacks sufficient information to evaluate the costs and
benefits of making TSP mandatory for non-common carrier services.
26. Oversight, Industry Engagement, and Executive Branch Reporting.
We adopt the NPRM proposal to eliminate references to the TSP System
Oversight Committee (Oversight Committee) from the TSP rules. The
Oversight Committee, composed of representatives from government and
industry stakeholders, was established to identify and review any
issues that arose in the administration of the TSP program and to
recommend actions to correct them or prevent recurrence. In its
petition, however, NTIA explained that the administration of the TSP
program has evolved to obviate the need for the Oversight Committee.
Specifically, NTIA notes that the Oversight Committee's role has been
gradually filled by the Communications Information Sharing and Analysis
Center (Comm ISAC), and that DHS has in recent years relied on the Comm
ISAC to ``exchange information and gain advice'' on issues involving
the TSP program. Among other advantages, DHS explains, the Comm ISAC is
able ``to address operational concerns in real time,'' instead of
waiting for a scheduled Oversight Committee meeting.
27. We eliminate the references to the Oversight Committee in our
rules as outdated because the Comm ISAC is now fulfilling the Oversight
Committee's role. We consider it unnecessary to ``adopt rules that
allow DHS to consult with the [Comm] ISAC,'' as NTIA requests, because
DHS does not require Commission authorization to consult with the Comm
ISAC or other entities as part of its oversight of the TSP program.
28. NTIA requests that we replace the requirement that EOP submit
quarterly reports to the Commission and Oversight Committee with an
annual report to the Commission, which NTIA asserts ``better aligns
reporting timeframes to meet relevant programmatic needs.'' We agree
with commenters that some oversight is

[[Page 39774]]

needed to ensure accountability and compliance with the Commission's
rules. We also agree that DHS, as the agency primarily responsible for
daily management and administration of TSP, should author reports on
``the operational status of and trends in'' TSP. We therefore eliminate
the provisions of our rules that direct EOP to submit quarterly and
semi-annual reports to the Commission and, instead, request that DHS
provide information regarding TSP in annual reports to the Commission.
Specifically, we request that the annual reports identify (1) numbers
of requests proceeded for the various priority actions, and the
priority levels assigned; (2) relative percentages of services assigned
to each priority level under each NSEP category and subcategory; (3)
any apparent serious misassignment or abuse of priority level
assignments; and (4) any existing or developing problem, and DHS's
recommendations on how it intends to address each problem.
29. Invocation Officials. We adopt our proposal to expand the scope
of individuals who may invoke priority treatment for an eligible NSEP
service. We define an ``invocation official'' as an individual who (1)
understands how the requested service ties to the organization's NSEP
mission; (2) is authorized to approve the expenditure of funds
necessary for the requested service; and (3) has operational
responsibilities for telecommunications procurement and/or management
within the organization. Likewise, we eliminate the requirement that
the invocation official must be designated in writing. Prior to this
change, the Commission's rules required the individual to be part of a
narrowly defined class of ``senior officials,'' including agency heads,
and that such individual be appointed in writing in accordance with
supplemental procedures issued by EOP.
30. We find that these changes will make the operation of the TSP
program more efficient while providing greater flexibility for user
organizations. These actions reflect changes that DHS has already made,
such as lessening the seniority requirement to allow an individual who
is able to attest to the need for priority treatment and to obligate
funds on behalf of the organization to serve as the ``invocation
official.'' We find that it is not necessary for the ``invocation
official'' to be a senior government official, such as the head or
director of a federal agency, because, as NTIA points out, requiring
senior officials to request TSP participation has produced
``unnecessary delays in the approval process given the demands placed
on senior officials and their often limited availability.'' We are also
persuaded by NTIA's claim that the current requirements are untenable
because senior officials typically do not ``interact[ ] with service
providers and often lack[ ] direct knowledge of the purpose and need
for the NS/EP service.'' Commenters support these changes.
31. Protection of TSP Data. We amend the TSP rules to enhance the
protection of TSP data. We agree with NTIA that the unauthorized
disclosure of sensitive information related to TSP circuits, in the
aggregate, could pose a national security risk. We further agree that
service providers moving certain operational, administrative, and
management functions overseas could create additional risk by exposing
TSP data to companies and individuals outside the United States. We
likewise find merit in the arguments of some commenters that factors
such as the use of firewalls, access controls, and other security
protocols are more consequential than the physical location of the
servers that house the TSP data. Even with respect to the physical
location of the servers, we note that differing laws in foreign
jurisdictions means that the threat of disclosure--through both lawful
and unlawful means--varies from country to country. We conclude that a
reasonableness test that accounts for the sensitivity of this data is
preferable to prescriptive rules. While a reasonableness test provides
less of a bright line for compliance, it will allow providers greater
flexibility to manage their networks while respecting the
confidentiality of this data. We therefore amend our rules to
strengthen the current provision addressing the confidentiality of this
data. The current version of this provision directs service providers
to ``[n]ot disclose information concerning NSEP services they provide
to those not having a need-to-know or [who] might use the information
for competitive advantage.'' To this section, we add the following
language:

Service providers will take all reasonable efforts to secure the
confidentiality of TSP information from unauthorized disclosure,
including by storing such information in a location and with
security safeguards that are reasonably designed to protect against
lawful or unlawful disclosure to company employees or service
providers without a legitimate need for this information, or other
entities to which the disclosure of this information would pose a
threat to the national security of the United States. Service
providers will immediately notify the FCC and DHS of any attempt to
compel the disclosure of this information and will coordinate with
the FCC and DHS prior to such disclosure. In emergency situations
where prior notice is impracticable, service providers will notify
the FCC and DHS as soon as possible, but no later than 48 hours
after such disclosure, and should accompany such notice with an
explanation why prior notice was not practicable.

We find that this test strikes the appropriate balance between
DHS's concerns about the potential national security risks posed by the
disclosure of this data, and the concerns of commenters about the
shortcomings of a more prescriptive approach. We therefore conclude
that the benefits to national security will far exceed the minimal
costs that service providers may incur as a result of these
requirements.
32. Provisioning and Restoration Timeframes. The Commission's
current TSP rules include three subsections that address the timeframes
that service providers must meet to (1) provision service; (2) restore
service; and (3) meet requested service dates for TSP-subject
facilities. However, each subsection specifies a different standard
(``best efforts,'' ``as soon as possible,'' and ``as quickly as
practicable'') for the time and level of effort required for service
providers to provision or restore TSP facilities. NTIA claims the
``varying and ambiguous language'' in the current rules ``has created
confusion, disagreements, dissatisfaction, and unrealistic
expectations'' between users, providers, and DHS's program staff.
33. We agree with NTIA that replacing varying timeframe standards
with a single standard will eliminate confusion and provide more
certainty for service providers regarding their provisioning and
restoration responsibilities. We also disagree with commenters who
argue that we should maintain the existing standards or ``eliminate the
restoration timeframes from [the] rules entirely.'' We therefore amend
section 6.f of Appendix A by replacing the current language with the
single term ``promptly'' to describe TSP service providers'
provisioning and restoration obligations. Further, we define
``promptly'' as meaning ``without delay.''
34. In adopting this standard, we address two competing sets of
concerns raised by commenters. On the one hand, as NTIA points out,
greater clarity and certainty regarding provisioning and restoration
timeframes will reduce confusion and provide more concrete expectations
for NSEP users, service providers, and DHS's program office staff. On
the other hand, we seek to avoid an overly burdensome or prescriptive
requirement that could, as other commenters point out, fail to

[[Page 39775]]

account for the ``variable nature of communications outages,'' and the
costs and benefits of specific circumstances. In general, we agree with
commenters that the standard for provisioning and restoration must
provide clarity and account for incident specific factors, while not
placing unreasonable demands on service providers.
35. We find that the ``promptly'' standard best addresses the
competing interests that are outlined in the record. Requiring
``prompt'' action--and defining ``promptly'' to mean ``without
delay''--necessitates that service providers move as rapidly as is
reasonable under the circumstances, which establishes a clear and
enforceable floor for action. However, this standard does not mandate
specific timelines or levels of effort and it allows for consideration
of variable incident-specific circumstances in determining what speed
of response and allocation of resources is reasonable. We find the
``promptly'' standard preferable to the alternative standards proposed
by commenters, such as ``best efforts,'' or ``as soon as possible,''
which do not convey the same sense of urgency and are more subjective
and susceptible to conflicting interpretations.
36. Reporting Requirements. In the NPRM, we sought comment on
NTIA's request that we amend our rules to require service providers to
report provisioning and restoration times to DHS for TSP circuits in
areas covered by the activation of the Disaster Information Reporting
System (DIRS). DHS asserts that it is necessary for the Commission to
impose such reporting requirements to enable DHS to obtain access to
TSP provisioning and restoration times and aggregate data so that it
can compare the data for TSP services to similar data for non-TSP
services. However, most commenters oppose NTIA's request and raise a
number of arguments for declining to adopt additional reporting
requirements. Some commenters point out that requiring service
providers to report data in the midst of a disaster could force them to
divert resources away from the disaster response efforts. Other
commenters contend that mandatory TSP reporting requirements could
undercut the effectiveness of DIRS because service providers could
attempt to avoid TSP reporting obligations by declining to participate
in DIRS reporting. Others argue that comparing the provisioning and
restoration times of TSP services and non-TSP services is unlikely to
produce useful or actionable results. Finally, a number of commenters
raise practical concerns with implementing the reporting requirements
by, for example, pointing out that the configuration of networks and IT
systems may not allow for reporting with the granularity required to
produce such reports.
37. We decline to adopt reporting requirements in our rules. While
we recognize the potential benefits of collecting provisioning and
restoration data, commenters raise questions about the cost, efficacy,
and utility of reporting requirements, and the record does not include
sufficient information to rebut these objections. Indeed, no commenter
responded to the concerns raised in the record. Only one commenter
(BRETSA) indicated support for the requested rule change, but merely
noted that requiring data on network performance might improve the
management and operation of the TSP program. Moreover, NTIA does not
propose specific obligations concerning the timing and frequency for
reporting this information, but instead, proposes that DHS coordinate
with the Commission to develop specific data requirements and reporting
timeframes. We believe these details should be clarified before the
Commission establishes new reporting requirements.
38. Finally, it is unclear whether DHS lacks other means to obtain
the requested information. Some commenters contend that DHS may be able
to obtain this information through contractual negotiations with
service providers. CISA asserts that contractual arrangements for TSP
do not currently exist between DHS and service providers and claims
that DHS currently has no basis on which to establish contractual
arrangements for TSP. However, CISA has not identified any legal
prohibition that would preclude consideration of a contractual
approach. Nevertheless, recognizing the potential value of collecting
greater data about provisioning and restoration times, while we decline
to adopt reporting requirements today, we encourage further dialogue
regarding whether an appropriate avenue exists for obtaining this data
that might be responsive to concerns raised in the record, whether
through further changes to our rules or through other means.

C. Changes to Wireless Priority Service Rules

39. With a few exceptions and modifications, discussed below, we
adopt most of the changes to our WPS rules proposed in the NPRM.
Specifically, we (1) update the rules to reflect the commonly used name
for this program; (2) expand the list of services eligible for WPS to
reflect newer technologies, as we did with TSP; (3) expand WPS
eligibility to include additional users; (4) clarify the operation of
the priority levels to make clear that higher priority services take
precedence over those with lower priority; (5) discuss the
applicability of the WPS rules to the FirstNet network; (6) clarify the
extent to which preemption and degradation may be used to facilitate
prioritized communications; (7) expressly authorize priority signaling;
and (8) eliminate the requirement that priority access must be invoked
on a per-call basis. Finally, as with TSP, we decline to adopt
additional reporting requirements proposed by NTIA.
40. Program Name. As described above, government, industry, and
users commonly refer to Priority Access Service as Wireless Priority
Service. To reflect the prevailing naming convention, we adopt the NPRM
proposal to replace all references to ``Priority Access Service'' with
``Wireless Priority Service'' in section 64.402 and part 64, Appendix
B. We agree with NTIA that the name Wireless Priority Service ``better
reflects the service's current requirements and capabilities.'' No
commenters directly addressed this issue, but T-Mobile previously
indicated support for ``updating the language. . . as necessary to
mitigate any potential confusion and enhance clarity.''
41. Eligible Services. We adopt the NPRM proposal to amend the WPS
rules to expressly permit wireless service providers, on a voluntary
basis, to give NSEP personnel priority access to, and priority use of,
all secure and non-secure voice, data, and video services available
over their networks, including IP-based services. We also adopt the
NPRM proposal to eliminate references to ``CMRS'' and, where necessary,
substitute the term ``wireless'' to describe services, networks, and
providers. Finally, we retain the current requirement that if a service
provider elects to offer WPS, it must comply with the Commission's WPS
rules.
42. Commenters support amending the rules to authorize wireless
service providers to voluntarily offer priority treatment of all voice,
data, and video services to eligible users. Since the WPS rules were
initially adopted in 2000, the ``capacity and capabilities of
[wireless] networks have expanded immensely'' and wireless service
providers are now able to offer a wide array of voice, data, and video
services. The development of new technologies has direct implications
for NSEP users, who increasingly rely on these innovative services and
applications to ``make and complete mission-essential

[[Page 39776]]

communications in an efficient and effective manner.'' We find that
amending our rules to include all voice, data, and video services,
including IP-based services, will promote consistency and prevent
confusion among service providers.
43. DHS has interpreted the lack of explicit authorization in our
rules to mean that WPS providers are not permitted to offer priority
data, video, and IP-based voice services. We disagree with DHS's view,
and instead agree with commenters who assert that while specific
authorization is not necessary, it will prevent confusion among
providers and NSEP users regarding the services that are eligible for
priority treatment. We believe that by removing any uncertainty about
the legal authority to offer these services, our action will facilitate
the development of new services and capabilities which, in turn, will
significantly benefit NSEP users.
44. Eligible Users. We adopt the NPRM proposal to modify the
descriptions of priority levels and qualifying criteria in Appendix B
to expand WPS eligibility to additional users, particularly those with
response and restoration roles during emergency situations.
Specifically, we amend Appendix B to include entities from the critical
infrastructure sectors identified in Presidential Policy Directive
(PPD)-21, and we modify the descriptions of priority levels and
qualifying criteria to allow financial services and hospital personnel
to qualify for WPS. We also remove outdated language that currently
limits WPS eligibility to ``key personnel'' and individuals in
``leadership positions'' and clarify that WPS should be made available
to all NSEP personnel that meet the qualifying criteria.
45. In addition to providing WPS to these critical groups, this
amendment also brings our rules in line with developments in the
administration of the WPS program. While the current rules do not
include multiple categories of NSEP users, such as critical
infrastructure protection, financial services, and hospital personnel,
DHS is currently assigning priority levels to those users.
46. Commenters generally support allowing more groups of NSEP users
to qualify for WPS, but disagree about the process for determining
their eligibility and priority level assignments. For example, AT&T
states that the Commission should ``specify how entities . . . would be
incorporated'' into the priority levels, while T-Mobile argues that
decision should ``continue to lie[ ] with DHS.'' We need not address
this specific issue in our rules because, as described above, we
eliminate the provisions that describe the responsibilities of EOP for
the priority services programs. However, we expect that DHS will
continue to make WPS eligibility determinations and priority level
assignments pursuant to Executive Order 13618.
47. Priority Levels. The Commission's WPS rules list five levels of
priority, with Priority Level 1 being the highest. NTIA asks the
Commission to amend the rules to make explicit that Priority Level 1
communications--those made by the President of the United States, as
well as certain executive leaders and policymakers--should receive
priority treatment that exceeds that given to users at any other
priority level. We agree with NTIA's requested rule change, which would
make it both ``explicit and conspicuous'' that ``the nation's executive
leadership receive top priority.'' Commenters generally agree that the
Commission should update its rules to clarify the status of Priority
Level 1 users. We therefore adopt the NPRM proposal and clarify that
Priority Level 1 exceeds all other priority services offered by WPS
providers.
48. WPS and FirstNet. In ex parte comments, FirstNet notes that
``[although this proceeding appears specifically aimed'' at WPS and
TSP, ``[FirstNet] wishes to clarify that any updates to the FCC's
priority services rules should not apply to the distinct, unique
FirstNet services.'' FirstNet requests that the Commission exclude
FirstNet services ``from any updates or revisions to the Commission's
priority services rules and, in particular, that FirstNet services not
be subject to overriding priority or degradation vis-[agrave]-vis any
other priority services offerings.'' AT&T similarly argues that
``[a]ccomplishment of the [FirstNet Authority's] mission requires . . .
broad authority to assign priority levels,'' and states that ``the WPS
rules should not interfere with the interplay of priority levels vis-
[agrave]-vis FirstNet and WPS and other programs.'' Verizon asserts
that the same principle applies to public safety services offered by
other providers, stating that the WPS rules ``have never been
interpreted so expansively as to preclude wireless providers from
offering innovative priority and preemption capabilities in their
separate public safety communications offerings.'' Responding to AT&T,
T-Mobile asserts that providers should not be allowed to ``pick and
choose how users receive priority based on their status with a
particular provider,'' and urges the Commission to ``ensure that all
WPS subscribers receive priority treatment based solely on their WPS
status regardless of what network they are on, including FirstNet.''
49. As FirstNet notes, this proceeding is focused on TSP and WPS,
and the NPRM did not mention or seek comment on FirstNet. Nevertheless,
in light of the comments filed on this issue, we believe it is
appropriate to clarify the relationship between WPS and FirstNet. As
stated above, the WPS rules only apply to service providers that
voluntarily elect to participate in WPS. FirstNet is a separate program
with distinct statutory authority to operate the Nationwide Public
Safety Broadband Network and to offer prioritization to first
responders. As such, the WPS rules do not apply to prioritization
within the FirstNet network, and FirstNet is therefore not required to
comply with the WPS rules in providing such prioritization to its
public safety users. However, FirstNet may voluntarily elect to
participate in WPS and, if it chooses to do so, like any other WPS
participant, its participation must be in accordance with the WPS
rules. Indeed, FirstNet states that it offers WPS capability to users
that request it, and acknowledges that ``[t]o the extent a FirstNet
subscriber has the WPS feature enabled on their FirstNet service, the
use of that WPS capability would be subject to the prevailing WPS
rules.''
50. Preemption and Degradation. The NPRM proposed to authorize
preemption and degradation for Priority Level 1 and 2 voice calls,
except for public safety emergency (911) calls. NTIA requested this
clarification based on its view that ``[c]urrent WPS rules do not
permit NS/EP calls to preempt other in-progress calls.'' NTIA asked
that the Commission amend its rules because preemption and degradation
are ``critical priority feature[s] that will enable the highest
priority NS/EP users to communicate and coordinate'' during emergency
situations--when commercial networks are often the most congested.'' We
sought comment on NTIA's requested rule change.
51. The WPS rules currently permit re-ordering of queued (not-yet-
established) call requests based on user priority but do not provide
for re-ordering of active (in-progress) calls. However, as several
commenters point out, and as we recognized in the NPRM, the lack of
explicit authorization does not preclude WPS providers from re-ordering
active calls. We similarly find that preemption and degradation of
active calls in support of WPS prioritization is not precluded by our

[[Page 39777]]

rules. To the extent that these mechanisms are employed in WPS by
common carriers subject to Title II, we clarify that they are not
``unjust or unreasonable'' practices that violate the non-
discrimination provision of section 202. To the extent that these
mechanisms are used in support of NSEP communications outside the scope
of Title II, they are legally permissible. Thus, while expressly
authorizing priority and preemption in the rules may be legally
unnecessary, we determine that explicit authorization will help ensure
``consistent interpretation of the rules by WPS providers to the
ultimate benefit of NSEP users.''
52. AT&T expresses concern that authorizing preemption and
degradation only in support of Priority Level 1 and 2 voice calls might
suggest that it is prohibited for other priority levels. We agree that
preemption and degradation of lower-priority communications are
permissible at all WPS priority levels. Therefore, we modify the NPRM
proposed rule to expressly permit, voice, data, text, and video
communications from NSEP users assigned to any priority level to
preempt or degrade other in-progress communications, except for public
safety emergency (911) communications. Likewise, we make clear that
preemption and degradation are permitted but not required by our rules.
We agree with commenters that issues related to preemption and
degradation should be determined via contractual arrangements because
such an approach will give WPS providers increased flexibility to
update their service offerings and determine when and how to apply
these capabilities.
53. Priority Signaling. We adopt the NPRM proposal to update our
WPS rules to expressly authorize priority signaling to ensure networks
can detect WPS handset network registration and service invocation.
Priority signaling is an important feature that allows service
providers to mitigate the risks of signaling congestion by ensuring
``successful WPS handset network registration and service invocation.''
While commenters correctly note that the Commission's rules do not
prohibit priority signaling and that some WPS providers already offer
it via contractual arrangements with DHS, commenters do not raise any
objections to explicitly authorizing priority signaling in our rules.
We find that this rule change will promote clarity and consistency for
providers and, therefore, adopt the rule change as proposed in the
NPRM.
54. Methods of Invocation. We adopt the NPRM proposal to eliminate
the requirement that WPS priority access must be invoked on a per-call
basis. Currently, authorized users invoke priority access on a per-call
basis by dialing a specified feature code before each call. We agree
with NTIA that requiring users to invoke WPS for each communication
``hinder[s] efficient response'' during emergency situations. Although
AT&T argues for maintaining the current requirement in order to ensure
that ``WPS functions smoothly for calls that must be transmitted over
multiple carrier networks,'' we believe that DHS is in the best
position to ensure interoperability between the various networks that
carry prioritized communications.
55. We also decline to prescribe other specific methods of WPS
invocation in our rules. We agree with T-Mobile that methods of
invocation should be determined by contractual arrangements because
such an approach will ensure that all WPS providers are ``afforded the
same flexibility and treatment.'' Commenters support this change
because it provides greater flexibility for service providers to decide
how to offer WPS services in the manner most suitable for their
subscribers and networks.
56. Reporting Requirements. We decline to amend our rules to
require service providers to file implementation, usage, and
performance data with DHS. According to NTIA, DHS currently collects
and analyzes data from WPS providers detailing ``usage, performance,
implementation, and supporting infrastructure,'' so that it can assess
``WPS readiness, usage, and performance at all times and all places
offered, as well as for specific geographic areas and times. NTIA
asserts that the requested rule change is necessary to ensure
consistency across all WPS providers and to formalize the process by
which providers submit WPS data to DHS.
57. Commenters oppose NTIA's requested rule change, arguing that
new reporting requirements could inhibit providers' flexibility and
ability to innovate and duplicate existing reporting processes.
Notably, the record includes minimal responses to those objections.
Instead, commenters assert that DHS should obtain this information via
contractual arrangement with WPS providers. Based on this record and
consistent with our discussion above with respect to TSP reporting, we
decline to adopt new WSP reporting requirements at this time and
encourage further dialogue on this matter.

D. Alternative Contract-Based Approach for TSP and WPS

58. The NPRM sought comment on an alternative ``light touch''
approach, whereby the current rules for TSP and WPS would be eliminated
and the programs would operate strictly via contractual arrangements
between DHS and service providers. This approach would make TSP and WPS
prioritization resemble GETS, which provides prioritization through the
Public Switched Telephone Network for over 330,600 GETS card holders.
Currently, there are no Commission rules for GETS, which operates
solely via contractual arrangements with DHS.
59. Most industry commenters prefer the ``light touch'' contractual
approach to the current rules-based approach. T-Mobile disagrees,
arguing that the Commission should ``maintain a limited set of rules''
for TSP and WPS. Likewise, CISA argues that eliminating the rules would
remove the existing liability protections for prioritized non-broadband
services and, without such protection from liability, carriers would be
unlikely to offer priority services. CISA also asserts that it
currently has no basis on which to establish contractual arrangements
with TSP providers.
60. We decline to adopt a wholly contractual scheme for priority
services. Although a contractual approach could provide some benefits,
commenters have not identified fundamental problems or deficiencies in
the existing rules-based approach. Overall, the record indicates that
both TSP and WPS have functioned without major disruption and have
expanded under the current approach. Given the critical role of the
priority services programs in supporting the NSEP posture of the United
States, we believe that continuing to have baseline rules for TSP and
WPS will promote continuity and consistency in these programs. We agree
with CISA that the rules provide important liability protections for
service providers and that removing these protections could create
uncertainty regarding liability that might discourage providers from
participating in the programs. Further, a strictly contract-based
approach could impose administrative and cost burdens on DHS by
requiring it to make extensive programmatic changes. In sum, we
conclude that the potential adverse impacts of implementing the
alternative approach would outweigh the potential benefits.

[[Page 39778]]

IV. Procedural Matters

A. Report to Congress

61. The Commission will send a copy of the Report and Order,
including this FRFA, in a report to Congress pursuant to the
Congressional Review Act. In addition, the Commission will send a copy
of the Report and Order, including this FRFA, to the Chief Counsel for
Advocacy of the SBA. A copy of the Report and Order and FRFA (or
summaries thereof) will also be published in the Federal Register.

B. Regulatory Flexibility Act

62. The Regulatory Flexibility Act of 1980, as amended (RFA),
requires that an agency prepare a regulatory flexibility analysis for
notice and comment rulemakings, unless the agency certifies that ``the
rule will not, if promulgated, have a significant economic impact on a
substantial number of small entities.'' Accordingly, the Commission has
prepared a Final Regulatory Flexibility Analysis (FRFA) concerning the
possible impact of the rule changes contained in this Report and Order
on small entities. The FRFA is set forth in Appendix C of the Report
and Order.

V. Final Regulatory Flexibility Analysis

63. 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 (NPRM) adopted in
July 2020. The Commission sought written public comment on the
proposals in the NPRM, including comment on the IRFA. No comments were
filed addressing the IRFA. This present Final Regulatory Flexibility
Analysis (FRFA) conforms to the RFA.

A. Need for, and Objectives of, the Final Rules

64. In the Report and Order, the Commission updates and streamlines
its priority services rules. These rules facilitate prioritized
connectivity to National Security and Emergency Preparedness (NSEP)
personnel during emergency situations by authorizing prioritized
provisioning and restoration of communications facilities and
prioritized network access for wireless communications. The priority
services programs are used to ``maintain a state of readiness [and] to
respond to and manage any event or crisis . . . [that] degrades or
threatens the NSEP posture of the United States.''
65. The Commission takes this action because the priority services
rules (the most recent of which were updated over two decades ago) need
to be updated to account for changes in technology. The Commission's
current rules date back to the establishment of the Telecommunications
Service Priority (TSP) System in 1988 and the creation of the Priority
Access Service (PAS), more commonly referred to as Wireless Priority
Service (WPS), in 2000. The Commission's rules were originally
developed when communications networks were primarily based on circuit-
switched technologies. They do not address the advanced capabilities of
internet Protocol (IP)-based communications that support data and voice
services, or the ability of users at different priority levels to share
network capacity and resources.
66. The Commission also takes this action to address the requests
from the Department of Homeland Security (DHS) through the National
Telecommunications and Information Administration (NTIA) to update the
existing rules and requirements for the priority services programs.
NTIA filed two Petitions for Rulemaking on behalf of DHS, requesting
that the FCC update its TSP and Priority Access Service (PAS) rules to
address changes in technology and evolving user needs for these
programs. The NPRM sought comment on both NTIA petitions as well as on
the Commission's proposed rule changes.
67. In the Report and Order, the Commission updates its priority
services rules to reflect today's marketplace and governance framework
and to explicitly authorize the prioritization of next-generation
technology. For example, the Commission removes outdated language that
could cause confusion and otherwise impede the use of IP-based
technologies to support the provision of priority services for voice,
data, and video communications. The Commission also amends its priority
service rules to reflect current administrative responsibilities for
the priority services programs while eliminating burdensome and
unnecessary requirements on service providers. The scope of the changes
adopted in the Report and Order in some instances apply to both TSP and
WPS, and in other instances apply only to TSP or only to WPS. These
changes are intended to reduce regulatory burdens and make our rules
flexible enough to respond to changing administrative requirements or
technological advances related to the priority services programs. We
also believe that these changes will substantially increase the
benefits to NSEP users and public safety while reducing the regulatory
costs imposed on providers of priority services.

B. Summary of Significant Issues Raised by Comments in Response to the
IRFA

68. There were no comments filed that specifically addressed the
proposed rules and policies presented in the IRFA.

C. Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration

69. Pursuant to the Small Business Jobs Act of 2010, which amended
the RFA, the Commission is required to respond to any comments filed by
the Chief Counsel for Advocacy of the Small Business Administration
(SBA) and to provide a detailed statement of any change made to the
proposed rules as a result of those comments.
70. The Chief Counsel did not file any comments in response to the
proposed rules in this proceeding.

D. Description and Estimate of the Number of Small Entities to Which
the Rules Will Apply

71. 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 SBA.
72. 700 MHz Guard Band Licensees. The 700 MHz Guard Band
encompasses spectrum in 746-747/776-777 MHz and 762-764/792-794 MHz
frequency bands. Wireless Telecommunications Carriers (except
Satellite) is the closest industry with a SBA small business size
standard applicable to licenses providing services in these bands. The
SBA small business size standard for this industry classifies a
business as small if it has 1,500 or fewer employees. U.S. Census
Bureau data for 2017 show that there were 2,893 firms that operated in
this industry for the entire year. Of this number, 2,837 firms employed
fewer than 250 employees. Thus, under the SBA size standard, the
Commission estimates that a majority of licensees in this industry can
be considered small.
73. According to Commission data as of December 2021, there were

[[Page 39779]]

approximately 224 active 700 MHz Guard Band licenses. The Commission's
small business size standards with respect to 700 MHz Guard Band
licensees involve eligibility for bidding credits and installment
payments in the auction of licenses. For the auction of these licenses,
the Commission defined a ``small business'' as an entity that, together
with its affiliates and controlling principals, has average gross
revenues not exceeding $40 million for the preceding three years, and a
``very small business'' 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. Pursuant to these
definitions, five winning bidders claiming one of the small business
status classifications won 26 licenses, and one winning bidder claiming
small business won two licenses. None of the winning bidders claiming a
small business status classification in these 700 MHz Guard Band
license auctions had an active license as of December 2021.
74. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
75. Advanced Wireless Services (AWS)--(1710-1755 MHz and 2110-2155
MHz bands (AWS-1); 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and
2175-2180 MHz bands (AWS-2); 2155-2175 MHz band (AWS-3); 2000-2020 MHz
and 2180-2200 MHz (AWS-4)). Spectrum is made available and licensed in
these bands for the provision of various wireless communications
services. Wireless Telecommunications Carriers (except Satellite) is
the closest industry with a SBA small business size standard applicable
to these services. The SBA small business size standard for this
industry classifies a business as small if it has 1,500 or fewer
employees. U.S. Census Bureau data for 2017 show that there were 2,893
firms that operated in this industry for the entire year. Of this
number, 2,837 firms employed fewer than 250 employees. Thus, under the
SBA size standard, the Commission estimates that a majority of
licensees in this industry can be considered small.
76. According to Commission data as December 2021, there were
approximately 4,472 active AWS licenses. The Commission's small
business size standards with respect to AWS involve eligibility for
bidding credits and installment payments in the auction of licenses for
these services. For the auction of AWS licenses, the Commission defined
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. Pursuant to these
definitions, 57 winning bidders claiming status as small or very small
businesses won 215 of 1,087 licenses. In the most recent auction of AWS
licenses 15 of 37 bidders qualifying for status as small or very small
businesses won licenses.
77. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
78. Competitive Local Exchange Carriers (LECs). Neither the
Commission nor the SBA has developed a size standard for small
businesses specifically applicable to local exchange services.
Providers of these services include several types of competitive local
exchange service providers. Wired Telecommunications Carriers is the
closest industry with a SBA small business size standard. The SBA small
business size standard for Wired Telecommunications Carriers classifies
firms having 1,500 or fewer employees as small. U.S. Census Bureau data
for 2017 show that there were 3,054 firms that operated in this
industry for the entire year. Of this number, 2,964 firms operated with
fewer than 250 employees. Additionally, based on Commission data in the
2021 Universal Service Monitoring Report, as of December 31, 2020,
there were 3,956 providers that reported they were competitive local
exchange service providers. Of these providers, the Commission
estimates that 3,808 providers have 1,500 or fewer employees.
Consequently, using the SBA's small business size standard, most of
these providers can be considered small entities.
79. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the
Commission nor the SBA have developed a small business size standard
specifically for incumbent local exchange carriers. Wired
Telecommunications Carriers is the closest industry with a SBA small
business size standard. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms in this industry that operated for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees.
Additionally, based on Commission data in the 2021 Universal Service
Monitoring Report, as of December 31, 2020, there were 1,227 providers
that reported they were incumbent local exchange service providers. Of
these providers, the Commission estimates that 929 providers have 1,500
or fewer employees. Consequently, using the SBA's small business size
standard, the Commission estimates that the majority of incumbent local
exchange carriers can be considered small entities.
80. Lower 700 MHz Band Licenses. The lower 700 MHz band encompasses
spectrum in the 698-746 MHz frequency bands. Permissible operations in
these bands include flexible fixed, mobile, and broadcast uses,
including mobile and other digital new broadcast operation; fixed and
mobile wireless commercial services (including FDD- and TDD-based
services); as well as fixed and mobile wireless uses for private,
internal radio needs, two-way interactive, cellular, and mobile
television broadcasting services. Wireless Telecommunications Carriers
(except Satellite) is the closest industry with a SBA small business
size standard applicable to licenses providing services in these bands.
The SBA small business size standard for this industry classifies a
business as small if it has 1,500 or fewer employees. U.S. Census
Bureau data for 2017 show that there were 2,893 firms that operated in
this industry for the entire year. Of this number, 2,837 firms employed
fewer than 250 employees. Thus, under the SBA size standard, the
Commission estimates that

[[Page 39780]]

a majority of licensees in this industry can be considered small.
81. According to Commission data as of December 2021, there were
approximately 2,824 active Lower 700 MHz Band licenses. The
Commission's small business size standards with respect to Lower 700
MHz Band licensees involve eligibility for bidding credits and
installment payments in the auction of licenses. For auctions of Lower
700 MHz Band licenses the Commission adopted criteria for three groups
of small businesses. A very small business was defined as an entity
that, together with its affiliates and controlling interests, has
average annual gross revenues not exceeding $15 million for the
preceding three years, a small business was defined as an entity that,
together with its affiliates and controlling interests, has average
gross revenues not exceeding $40 million for the preceding three years,
and an entrepreneur was defined as an entity that, together with its
affiliates and controlling interests, has average gross revenues not
exceeding $3 million for the preceding three years. In auctions for
Lower 700 MHz Band licenses seventy-two winning bidders claiming a
small business classification won 329 licenses, 26 winning bidders
claiming a small business classification won 214 licenses, and three
winning bidders claiming a small business classification won all five
auctioned licenses.
82. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
83. Narrowband Personal Communications Services. Narrowband
Personal Communications Services (Narrowband PCS) are PCS services
operating in the 901-902 MHz, 930-931 MHz, and 940-941 MHz bands. PCS
services are radio communications that encompass mobile and ancillary
fixed communication that provide services to individuals and businesses
and can be integrated with a variety of competing networks. Wireless
Telecommunications Carriers (except Satellite) is the closest industry
with a SBA small business size standard applicable to these services.
The SBA small business size standard for this industry classifies a
business as small if it has 1,500 or fewer employees. U.S. Census
Bureau data for 2017 show that there were 2,893 firms that operated in
this industry for the entire year. Of this number, 2,837 firms employed
fewer than 250 employees. Thus, under the SBA size standard, the
Commission estimates that a majority of licensees in this industry can
be considered small.
84. According to Commission data as of December 2021, there were
approximately 4,211 active Narrowband PCS licenses. The Commission's
small business size standards with respect to Narrowband PCS involve
eligibility for bidding credits and installment payments in the auction
of licenses for these services. For the auction of these licenses, the
Commission defined a ``small business'' as 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 defined as an entity that, together with affiliates
and controlling interests, has average gross revenues for the three
preceding years of not more than $15 million. Pursuant to these
definitions, seven winning bidders claiming small and very small
bidding credits won approximately 359 licenses. One of the winning
bidders claiming a small business status classification in these
Narrowband PCS license auctions had an active license as of December
2021.
85. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
86. Offshore Radiotelephone Service. This service operates on
several UHF television broadcast channels that are not used for
television broadcasting in the coastal areas of states bordering the
Gulf of Mexico. Wireless Telecommunications Carriers (except Satellite)
is the closest industry with a SBA small business size standard
applicable to this service. The SBA small business size standard for
this industry classifies a business as small if it has 1,500 or fewer
employees. U.S. Census Bureau data for 2017 show that there were 2,893
firms that operated in this industry for the entire year. Of this
number, 2,837 firms employed fewer than 250 employees. Thus, under the
SBA size standard, the Commission estimates that a majority of
licensees in this industry can be considered small. Additionally, based
on Commission data, as of December 2021, there was one licensee with an
active license in this service. However, since the Commission does not
collect data on the number of employees for this service, at this time
we are not able to estimate the number of licensees that would qualify
as small under the SBA's small business size standard.
87. Rural Radiotelephone Service. Neither the Commission nor the
SBA have developed a small business size standard specifically for
small businesses providing Rural Radiotelephone Service. Rural
Radiotelephone Service is radio service in which licensees are
authorized to offer and provide radio telecommunication services for
hire to subscribers in areas where it is not feasible to provide
communication services by wire or other means. A significant subset of
the Rural Radiotelephone Service is the Basic Exchange Telephone Radio
System (BETRS). Wireless Telecommunications Carriers (except
Satellite), is the closest applicable industry with a SBA small
business size standard. The SBA small business size standard for
Wireless Telecommunications Carriers (except Satellite) classifies
firms having 1,500 or fewer employees as small. For this industry, U.S.
Census Bureau data for 2017 show that there were 2,893 firms that
operated for the entire year. Of this total, 2,837 firms employed fewer
than 250 employees. Thus, under the SBA size standard, the Commission
estimates that the majority of Rural Radiotelephone Services firm are
small entities. Based on Commission data as of December 27, 2021, there
were approximately 119 active licenses in the Rural Radiotelephone
Service. The Commission does not collect employment data from these
entities holding these licenses and therefore we cannot estimate how
many of these entities meet the SBA small business size standard.
88. Small Businesses, Small Organizations, Small Governmental
Jurisdictions. Our actions, over time,

[[Page 39781]]

may affect small entities that are not easily categorized at present.
We therefore describe here, at the outset, three broad groups of small
entities that could be directly affected herein. First, while there are
industry specific size standards for small businesses that are used in
the regulatory flexibility analysis, according to data from the Small
Business Administration's (SBA) Office of Advocacy, in general a small
business is an independent business having fewer than 500 employees.
These types of small businesses represent 99.9% of all businesses in
the United States, which translates to 32.5 million businesses.
89. Next, the type of small entity described as a ``small
organization'' is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000
or less to delineate its annual electronic filing requirements for
small exempt organizations. Nationwide, for tax year 2020, there were
approximately 447,689 small exempt organizations in the U.S. reporting
revenues of $50,000 or less according to the registration and tax data
for exempt organizations available from the IRS.
90. Finally, the small entity described as a ``small governmental
jurisdiction'' is defined generally as ``governments of cities,
counties, towns, townships, villages, school districts, or special
districts, with a population of less than fifty thousand.'' U.S. Census
Bureau data from the 2017 Census of Governments indicate that there
were 90,075 local governmental jurisdictions consisting of general
purpose governments and special purpose governments in the United
States. Of this number, there were 36,931 general purpose governments
(county, municipal and town or township) with populations of less than
50,000 and 12,040 special purpose governments--independent school
districts with enrollment populations of less than 50,000. Accordingly,
based on the 2017 U.S. Census of Governments data, we estimate that at
least 48,971 entities fall into the category of ``small governmental
jurisdictions.''
91. Upper 700 MHz Band Licenses. The upper 700 MHz band encompasses
spectrum in the 746-806 MHz bands. Upper 700 MHz D Block licenses are
nationwide licenses associated with the 758-763 MHz and 788-793 MHz
bands. Permissible operations in these bands include flexible fixed,
mobile, and broadcast uses, including mobile and other digital new
broadcast operation; fixed and mobile wireless commercial services
(including FDD- and TDD-based services); as well as fixed and mobile
wireless uses for private, internal radio needs, two-way interactive,
cellular, and mobile television broadcasting services. Wireless
Telecommunications Carriers (except Satellite) is the closest industry
with a SBA small business size standard applicable to licenses
providing services in these bands. The SBA small business size standard
for this industry classifies a business as small if it has 1,500 or
fewer employees. U.S. Census Bureau data for 2017 show that there were
2,893 firms that operated in this industry for the entire year. Of that
number, 2,837 firms employed fewer than 250 employees. Thus, under the
SBA size standard, the Commission estimates that a majority of
licensees in this industry can be considered small.
92. According to Commission data as of December 2021, there were
approximately 152 active Upper 700 MHz Band licenses. The Commission's
small business size standards with respect to Upper 700 MHz Band
licensees involve eligibility for bidding credits and installment
payments in the auction of licenses. For the auction of these licenses,
the Commission defined a ``small business'' as an entity that, together
with its affiliates and controlling principals, has average gross
revenues not exceeding $40 million for the preceding three years, and a
``very small business'' 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. Pursuant to these
definitions, three winning bidders claiming very small business status
won five of the twelve available licenses.
93. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
94. Wireless Communications Services. Wireless Communications
Services (WCS) can be used for a variety of fixed, mobile,
radiolocation, and digital audio broadcasting satellite services.
Wireless spectrum is made available and licensed for the provision of
wireless communications services in several frequency bands subject to
Part 27 of the Commission's rules. Wireless Telecommunications Carriers
(except Satellite) is the closest industry with a SBA small business
size standard applicable to these services. The SBA small business size
standard for this industry classifies a business as small if it has
1,500 or fewer employees. U.S. Census Bureau data for 2017 show that
there were 2,893 firms that operated in this industry for the entire
year. Of this number, 2,837 firms employed fewer than 250 employees.
Thus, under the SBA size standard, the Commission estimates that a
majority of licensees in this industry can be considered small.
95. The Commission's small business size standards with respect to
WCS involve eligibility for bidding credits and installment payments in
the auction of licenses for the various frequency bands included in
WCS. When bidding credits are adopted for the auction of licenses in
WCS frequency bands, such credits may be available to several types of
small businesses based average gross revenues (small, very small and
entrepreneur) pursuant to the competitive bidding rules adopted in
conjunction with the requirements for the auction and/or as identified
in the designated entities section in Part 27 of the Commission's rules
for the specific WCS frequency bands.
96. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
97. Wireless Telephony. Wireless telephony includes cellular,
personal communications services, and specialized mobile radio
telephony carriers. The closest applicable industry with a SBA small
business size standard is Wireless Telecommunications Carriers (except
Satellite). The size standard for this industry under SBA rules is that
a business is small if it has

[[Page 39782]]

1,500 or fewer employees. For this industry, U.S. Census Bureau data
for 2017 show that there were 2,893 firms that operated for the entire
year. Of this number, 2,837 firms employed fewer than 250 employees.
Additionally, based on Commission data in the 2021 Universal Service
Monitoring Report, as of December 31, 2020, there were 407 providers
that reported they were engaged in the provision of cellular, personal
communications services, and specialized mobile radio services. Of
these providers, the Commission estimates that 333 providers have 1,500
or fewer employees. Consequently, using the SBA's small business size
standard, most of these providers can be considered small entities.
98. Wireless Resellers. Neither the Commission nor the SBA have
developed a small business size standard specifically for Wireless
Resellers. The closest industry with a SBA small business size standard
is Telecommunications Resellers. The Telecommunications Resellers
industry comprises establishments engaged in purchasing access and
network capacity from owners and operators of telecommunications
networks and reselling wired and wireless telecommunications services
(except satellite) to businesses and households. Establishments in this
industry resell telecommunications and they do not operate transmission
facilities and infrastructure. Mobile virtual network operators (MVNOs)
are included in this industry. Under the SBA size standard for this
industry, a business is small if it has 1,500 or fewer employees. U.S.
Census Bureau data for 2017 show that 1,386 firms in this industry
provided resale services during that year. Of that number, 1,375 firms
operated with fewer than 250 employees. Thus, for this industry under
the SBA small business size standard, the majority of providers can be
considered small entities.
99. Wireless Telecommunications Carriers (except Satellite). This
industry comprises establishments engaged in operating and maintaining
switching and transmission facilities to provide communications via the
airwaves. Establishments in this industry have spectrum licenses and
provide services using that spectrum, such as cellular services, paging
services, wireless internet access, and wireless video services. The
SBA size standard for this industry classifies a business as small if
it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show
that there were 2,893 firms in this industry that operated for the
entire year. Of that number, 2,837 firms employed fewer than 250
employees. Additionally, based on Commission data in the 2021 Universal
Service Monitoring Report, as of December 31, 2020, there were 797
providers that reported they were engaged in the provision of wireless
services. Of these providers, the Commission estimates that 715
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
100. All Other Telecommunications. This industry is comprised of
establishments primarily engaged in providing specialized
telecommunications services, such as satellite tracking, communications
telemetry, and radar station operation. This industry also includes
establishments primarily engaged in providing satellite terminal
stations and associated facilities connected with one or more
terrestrial systems and capable of transmitting telecommunications to,
and receiving telecommunications from, satellite systems. Providers of
internet services (e.g. dial-up ISPs) or voice over internet protocol
(VoIP) services, via client-supplied telecommunications connections are
also included in this industry. The SBA small business size standard
for this industry classifies firms with annual receipts of $35 million
or less as small. U.S. Census Bureau data for 2017 show that there were
1,079 firms in this industry that operated for the entire year. Of
those firms, 1,039 had revenue of less than $25 million. Based on this
data, the Commission estimates that the majority of ``All Other
Telecommunications'' firms can be considered small.

E. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities

101. The rule changes adopted in the Report and Order will impose
new and/or modified reporting, recordkeeping, and other compliance
obligations on some small entities and other providers. At this time,
the Commission cannot quantify the cost of compliance or determine
whether small entities will have to hire professional assistance to
comply with the updated Priority Services Rules. However, because our
approach to the rule changes adopted in this proceeding has been to
take a flexible approach rather than adopting prescriptive rules and
reporting requirements, we do not believe the compliance obligations
for small entities will impose any significant costs or burdens.
102. Telecommunications Service Priority. The Commission's TSP
rules require certain service providers to prioritize the provisioning
and restoration of communications facilities to ``ensure effective NSEP
telecommunication services.'' The TSP rules apply, on a mandatory
basis, to common carrier services and ``services which are provided by
government and/or non-common carriers and are interconnected to common
carrier services.'' Offering TSP is mandatory for wireline
telecommunications providers, regardless of size. All service providers
that are requested to provide NSEP prioritization which is paid for by
the user not the provider, must offer it. Service providers that offer
these services must also ``maintain and provision and, if disrupted,
restore facilities and services'' in accordance with the prioritization
levels outlined in the TSP rules.
103. Under the amended rules adopted in the Report and Order, small
entities and other service providers that offer NSEP priority service
must: (1) promptly, which we define as ``without delay'', provide NSEP
service when requested, at the priority level contracted for; (2)
restore NSEP services which suffer outage or are reported as unusable
or otherwise in need of restoration, before non-NSEP services, based on
restoration priority level assignments; (3) respond to NSEP
provisioning requests of authorized users and/or other service
providers, and (4) cooperate with other service providers involved in
provisioning or restoring a portion of an NSEP service by honoring
provisioning or restoration priority level assignments.
104. Small entities and other services providers are also subject
to enhanced data protection requirements to prevent the unauthorized
disclosure of sensitive information relating to TSP circuits. The rules
we adopt in the Report and Order require small entities and other
service providers to take all reasonable efforts to secure the
confidentiality of TSP information that they maintain from unauthorized
disclosure. Such efforts include storing this information in a location
and with security safeguards that are reasonably designed to protect
against lawful or unlawful disclosure to company employees or service
providers without a legitimate need for this information, or other
entities to which the disclosure of this information would pose a
threat to the national security of the United States. Service providers
are required to immediately report any attempts that are made to compel
the disclosure of this information to the Commission and DHS and to
coordinate with the FCC and DHS prior to such disclosure. In

[[Page 39783]]

emergency situations where providing prior notice is impracticable,
service providers are required notify the FCC and DHS as soon as
possible, but no later than 48 hours after such disclosure, and should
an explanation why prior notice was not practicable when such notice is
provided.
105. Requiring providers to take reasonable efforts will allow
providers greater flexibility to manage their networks while respecting
the confidentiality of this data. We believe a reasonableness test that
accounts for the sensitivity of the data is preferable to prescriptive
rules. We also believe that while small entities and other providers
will incur costs for our enhanced TSP data protection rules, these
costs will be minimal and the benefits to national security will far
exceed the costs that service providers may incur as a result of these
requirements.
106. Wireless Priority Service. Small and other wireless service
providers are not required to offer WPS. The Commission's WPS rules
permit, but do not require providers to offer mobile wireless priority
services. Providers that offer WPS, offer the service pursuant to
contractual arrangements with service users who like TSP users pay for
the service and equipment costs. Providers that offer WPS, must also
abide by the WPS rules promulgated by the Commission. Wireless service
providers offering WPS must offer Priority Levels 1, 2, 3, 4, or 5.
Priority Level 1 communications which are those made by the President
of the United States, as well as certain other executive leaders and
policymakers must be given the highest priority by WPS providers in
relation to all other carrier-provided services.

F. Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered

107. The RFA requires an agency to describe any significant
specifically small business alternatives that it has considered in
reaching 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 or
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.
108. In the Report and Order, the Commission removed existing
regulatory burdens, and declined to adopt several of the actions
requested by NTIA, and in comments in response to the NPRM, that would
have significantly increased the economic burden on small entities. As
a preliminary matter, in updating and streamlining its priority
services rules with adoption of rules applying to both TSP and WPS
(e.g., updating the Commission's responsibilities for the priority
services programs and clarifying that service providers are authorized
to offer prioritization of next-generation services and technologies,
including IP-based voice, data, and video communications), the
Commission created greater efficiencies by combining rules applicable
to both TSP and WPS service providers to the extent that it was
possible. The Commission believes creating this greater efficiency
could lower compliance costs for small entities.
109. The Commission's approach in this proceeding was to provide
small entities and other service providers flexibility, evidenced for
example by its adoption of the reasonableness test requiring service
providers to take all reasonable efforts to protect the confidentiality
of TSP data, rather than imposing prescriptive requirements on small
entities and other service providers which could have increased their
compliance costs. The Commission also considered but ultimately did not
adopt recordkeeping and reporting rules that would have place a
significant financial burden on small entities. Specifically, if
adopted the proposed rules would have created additional reporting
burdens on by requiring NSEP service providers (both TSP and WPS) to
report to DHS provisioning and restoration times for TSP circuits in
areas covered by the activation of the Disaster Information Reporting
System (DIRS), and to aggregate data that would allow DHS to compare
the data for TSP and WPS services to similar data for non-TSP and non-
WPS services. Instead of ultimately adopting this proposal, the
Commission suggested that DHS enter into voluntary contractual
arrangements with NSEP service providers, including small entities, to
acquire the necessary data and information. The Commission believes the
potential benefit of such reporting requirements was outweighed by
questions of cost, efficacy, and the utility of these requirements, and
therefore declined to adopt these provisions in the final rules.
110. The Commission also declined to adopt an alternative approach
to the TSP and WPS requirements which would have had the Commission
essentially completely remove itself from the priority services field--
the ``GETS model'' approach. This approach would make TSP and WPS
prioritization resemble the wholly-contractual Government Emergency
Telecommunications Service (GETS). The GETS program, for which the
Commission does not have rules, provides prioritization through the
Public Switched Telephone Network for over 330,600 GETS card holders
and operates solely via contractual arrangements with DHS. Because of
the critical role of the priority services programs in supporting the
NSEP posture of the United States, the Commission believes that NSEP
rules remain necessary to establish baseline standards for these
programs. The Commission notes that eliminating the rules would remove
the liability protections for service providers which could discourage
small entities and other service providers from participating in the
programs. The Commission also notes that the elimination of the TSP
rules would end the mandatory nature of the program for common
carriers, thereby making participation in TSP completely voluntary for
all service providers, which we find is not in the public interest.
Accordingly, the Commission did not adopt this proposed approach.

VI. Ordering Clauses

111. Accordingly, it is ordered that, pursuant to the authority
contained in sections 1, 4(i), 4(j), 4(n), 201-205, 251(e)(3), 254,
301, 303(b), 303(g), 303(r), 307, 308(a), 309(a), 309(j), 316, 332,
403, 615(a)(1), 615(c), and 706 of the Communications Act of 1934, as
amended, codified at 47 U.S.C. 151, 154(i)-(j) & (n), 201-205,
251(e)(3), 254, 301, 303(b), 303(g), 303(r), 307, 308(a), 309(a),
309(j), 316, 332, 403, 606, 615(a)(1), 615(c); and Executive Order
13618, this Report and Order is adopted.
112. It is further ordered that part 64 of the Commission's rules
is amended, as set forth in Appendix A and Appendix B, effective thirty
(30) days after publication in the Federal Register.
113. It is further ordered that the Office of the Managing
Director, Performance Evaluation and Records Management, shall send a
copy of this Report & Order in a report to be sent to Congress and the
Government Accountability Office pursuant to the Congressional Review
Act, 5 U.S.C. 801(a)(1)(A).

[[Page 39784]]

List of Subjects in 47 CFR Part 64

Communications, Communications common carriers, Communications
equipment, Computer technology, Emergency preparedness, internet,
Priority access, Priority services, Provisioning, Radio, Restoration,
Telecommunications, Telephone.

Federal Communications Commission.
Marlene Dortch,
Secretary.

Final Rules

For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 64 as follows:

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

0
1. The authority citation for part 64 continues to read as follows:

Authority: 47 U.S.C. 151, 152, 154, 201, 202, 217, 218, 220,
222, 225, 226, 227, 227b, 228, 251(a), 251(e), 254(k), 255, 262,
276, 403(b)(2)(B), (c), 616, 620, 716, 1401-1473, unless otherwise
noted; Pub. L. 115-141, Div. P, sec. 503, 132 Stat. 348, 1091.

0
2. Revise Sec. 64.402 to read as follows:

Sec. 64.402 Policies and procedures for the provision of Wireless
Priority Service by wireless service providers.

Wireless service providers that elect to provide Wireless Priority
Service to National Security and Emergency Preparedness personnel shall
provide Wireless Priority Service in accordance with the policies and
procedures set forth in appendix B to this part.

0
3. Revise appendix A to part 64 to read as follows:

Appendix A to Part 64--Telecommunications Service Priority (TSP) System
for National Security Emergency Preparedness (NSEP)

1. Purpose and Authority

a. This appendix establishes rules, policies, and procedures and
outlines responsibilities for the National Security Emergency
Preparedness (NSEP) Telecommunications Service Priority (TSP)
System. The NSEP TSP System authorizes priority treatment to certain
telecommunications services and internet Protocol-based services,
including voice, data, and video services, for which provisioning or
restoration priority levels are requested, assigned, and approved in
accordance with this appendix.
b. This appendix is issued pursuant to sections 1, 4(i), 4(j),
4(n), 201-205, 251(e)(3), 254, 301, 303(b), 303(g), 303(r), 307,
308(a), 309(a), 309(j), 316, 332, 403, 615a-1, 615c, and 706 of the
Communications Act of 1934, as amended, codified at 47 U.S.C. 151,
154(i)-(j), (n), 201-205, 251(e)(3), 254, 301, 303(b), 303(g),
303(r), 307, 308(a), 309(a), 309(j), 316, 332, 403, 615a-1, 615c,
606; and Executive Order 13618. These authorities grant to the
Federal Communications Commission (FCC) the authority over the
assignment and approval of priorities for provisioning and
restoration of telecommunications services and internet Protocol-
based services (NSEP services). Under section 706 of the
Communications Act, this authority may be superseded, and the
mandatory provisions of this section may be expanded to include non-
common carrier telecommunications services, by the war emergency
powers of the President of the United States.
c. This appendix establishes rules for provisioning and
restoration of NSEP services both before and after invocation of the
President's war emergency powers. The rules, regulations, and
procedures outlined in this appendix must be applied on a day-to-day
basis to all NSEP services that are eligible for TSP so that the
priorities they establish can be implemented when the need arises.

2. Definitions

As used in this appendix:
a. Assignment means the designation of priority level(s) for a
defined NSEP telecommunications service or internet Protocol-based
service for a specified time period.
b. Audit means a quality assurance review in response to
identified problems.
c. Government refers to the Federal government or any foreign,
state, county, municipal or other local government agency or
organization. Specific qualifications will be supplied whenever
reference to a particular level of government is intended (e.g.,
``Federal government,'' ``state government''). ``Foreign
government'' means any sovereign empire, kingdom, state, or
independent political community, including foreign diplomatic and
consular establishments and coalitions or associations of
governments (e.g., North Atlantic Treaty Organization (NATO),
Southeast Asian Treaty Organization (SEATO), Organization of
American States (OAS), and government agencies or organization
(e.g., Pan American Union, International Postal Union, and
International Monetary Fund)).
d. Internet Protocol-based services refers to services and
applications that feature digital communications capabilities and
which generally use the internet Protocol.
e. Invocation Official refers to an individual who (1)
understands how the requested service ties to the organization's
NSEP mission; (2) is authorized to approve the expenditure of funds
necessary for the requested service; and (3) has operational
responsibilities for telecommunications procurement and/or
management within the organization.
f. National Coordinating Center for Communications (NCC) refers
to the joint telecommunications industry-Federal government
operation that assists in the initiation, coordination, restoration,
and reconstitution of NSEP telecommunications services or
facilities.
g. National Security Emergency Preparedness (NSEP) services, or
``NSEP services,'' means telecommunications services or internet
Protocol-based services which are used to maintain a state of
readiness or to respond to and manage any event or crisis (local,
national, or international), which causes or could cause injury or
harm to the population, damage to or loss of property, or degrades
or threatens the NSEP posture of the United States. These services
fall into two specific categories, Emergency NSEP and Essential
NSEP, and are assigned priority levels pursuant to section 8 of this
appendix.
h. NSEP treatment refers to the provisioning of a specific NSEP
service before others based on the provisioning priority level
assigned by DHS.
i. Priority action means assignment, revision, revocation, or
revalidation by DHS of a priority level associated with an NSEP
service.
j. Priority level means the level that may be assigned to an
NSEP service specifying the order in which provisioning or
restoration of the service is to occur relative to other NSEP and/or
non-NSEP telecommunications services. Priority levels authorized by
this appendix are designated highest to lowest: E, 1, 2, 3, 4, and
5, for provisioning and 1, 2, 3, 4, and 5, for restoration.
k. Priority level assignment means the priority level(s)
designated for the provisioning and/or restoration of a specific
NSEP service under section 8 of this appendix.
l. Private NSEP services include non-common carrier
telecommunications services.
m. Promptly means without delay.
n. Provisioning means the act of supplying service to a user,
including all associated transmission, wiring, and equipment. As
used herein, ``provisioning'' and ``initiation'' are synonymous and
include altering the state of an existing priority service or
capability.
o. Public switched NSEP services include those NSEP services
using public switched networks.
p. Reconciliation means the comparison of NSEP service
information and the resolution of identified discrepancies.
q. Restoration means the repair or returning to service of one
or more services that have experienced a service outage or are
unusable for any reason, including a damaged or impaired facility.
Such repair or returning to service may be done by patching,
rerouting, substitution of component parts or pathways, and other
means, as determined necessary by a service provider.
r. Revalidation means the re-justification by a service user of
a priority level assignment. This may result in extension by DHS of
the expiration date associated with the priority level assignment.
s. Revision means the change of priority level assignment for an
NSEP service. This includes any extension of an existing priority
level assignment to an expanded NSEP service.
t. Revocation means the elimination of a priority level
assignment when it is no longer valid. All priority level
assignments for an NSEP service are revoked upon service
termination.
u. Service identification refers to the information uniquely
identifying an NSEP

[[Page 39785]]

service to the service provider and/or service user.
v. Service user refers to any individual or organization
(including a service provider) supported by an NSEP service for
which a priority level has been requested or assigned pursuant to
section 7 or 8 of this appendix.
w. Service provider refers to a provider of telecommunications
services or internet Protocol-based services. The term includes
resale carriers, prime contractors, subcontractors, and
interconnecting carriers.
x. Spare circuits or services refers to those not being used or
contracted for by any customer.
y. Sponsoring Federal organization refers to a Federal agency
that determines eligibility for participation in the TSP Program for
non-Federal (state, local, tribal, and foreign governments and
private sector) organizations. A sponsor can be any Federal agency
with which a non-Federal user may be affiliated. The sponsoring
Federal agency ensures the service supports an NSEP function and
merits TSP participation.
z. Telecommunications services means the offering of
telecommunications for a fee directly to the public, or to such
classes of users as to be effectively available directly to the
public, regardless of the facilities used.

3. Scope

a. Service providers.
(1) This appendix applies to the provision and restoration of
certain telecommunications services or internet Protocol-based
services for which priority levels are requested, assigned, and
approved pursuant to section 8 of this appendix.
(2) Common carriers and providers of any services that are
interconnected to common carrier services must offer prioritized
provisioning and restoration of circuit-switched voice communication
services. Any service provider may, on a voluntary basis, offer
prioritized provisioning and restoration of data, video, and IP-
based voice services.
b. Eligible services. The NSEP TSP System and procedures
established by this appendix authorize priority treatment to the
following domestic services (including portions of U.S.
international services offered by U.S. service providers) for which
provisioning or restoration priority levels are requested, assigned,
and approved in accordance with this appendix:
(1) Common carrier services which are:
(a) Interstate or foreign telecommunications services,
(b) Intrastate telecommunications services inseparable from
interstate or foreign telecommunications services, and intrastate
telecommunications services to which priority levels are assigned
pursuant to section 8 of this appendix.
(2) Services which are provided by government and/or non-common
carriers and are interconnected to common carrier services assigned
a priority level pursuant to section 8 of this appendix.
c. Control services and orderwires. The NSEP TSP System and
procedures established by this appendix are not applicable to
authorize priority treatment to control services or orderwires owned
by a service provider and needed for provisioning, restoration, or
maintenance of other services owned by that service provider, e.g.,
the signaling path(s) or control plane services used by a service
provider's technical staff to control, coordinate, and direct
network operations. Such control services and orderwires shall have
priority provisioning and restoration over all other services
(including NSEP services) and shall be exempt from preemption.
However, the NSEP TSP System and procedures established by this
appendix are applicable to control services or orderwires leased by
a service provider.
d. Other services. The NSEP TSP System may apply, at the
discretion of and upon special arrangements by service users
involved, to authorize priority treatment to the following services:
(1) Government or non-common carrier services which are not
connected to common carrier provided services assigned a priority
level pursuant to section 8 of this appendix.
(2) Portions of U.S. international services which are provided
by foreign correspondents. (U.S. service providers are encouraged to
ensure that relevant operating arrangements are consistent to the
maximum extent practicable with the NSEP TSP System. If such
arrangements do not exist, U.S. service providers should handle
service provisioning and/or restoration in accordance with any
system acceptable to their foreign correspondents which comes
closest to meeting the procedures established in this appendix.)

4. Policy

The NSEP TSP System is the regulatory, administrative, and
operational system authorizing and providing for priority treatment,
i.e., provisioning and restoration, of NSEP services. As such, it
establishes the framework for service providers to provision,
restore, or otherwise act on a priority basis to ensure effective
NSEP services. The NSEP TSP System allows the assignment of priority
levels to any NSEP service across three time periods, or stress
conditions: Peacetime/Crisis/Mobilizations, Attack/War, and Post-
Attack/Recovery. Although priority levels normally will be assigned
by DHS and retained by service providers only for the current time
period, they may be preassigned for the other two time periods at
the request of service users who are able to identify and justify in
advance, their wartime or post-attack NSEP requirements. Absent such
preassigned priority levels for the Attack/War and Post-Attack/
Recovery periods, priority level assignments for the Peacetime/
Crisis/Mobilization period will remain in effect. At all times,
priority level assignments will be subject to revision by the FCC or
(on an interim basis) DHS, based upon changing NSEP needs. No other
system of service priorities which conflicts with the NSEP TSP
System is authorized by this appendix.

5. Responsibilities

a. The FCC:
(1) Provides regulatory oversight of the NSEP TSP System.
(2) Enforces NSEP TSP System rules and regulations which are
contained in this appendix.
(3) Performs such functions as are required by law, including:
(a) with respect to all entities licensed or regulated by the
FCC: the extension of or change in network facilities; the
discontinuance, reduction, or impairment of interstate services; the
control of common carrier rates, charges, practices, and
classifications; the construction, authorization, activation,
deactivation, or closing of radio stations, services, and
facilities; the assignment of radio frequencies to licensees; the
investigation of violations of FCC rules; and the assessment of
communications service provider emergency needs and resources; and
(b) supports the continuous operation and restoration of
critical communications systems and services by assisting the
Secretary of Homeland Security with infrastructure damage assessment
and restoration, and by providing the Secretary of Homeland Security
with information collected by the FCC on communications
infrastructure, service outages, and restoration, as appropriate.
(4) Functions (on a discretionary basis) as a sponsoring Federal
organization. (See section 5.b below.)
b. Sponsoring Federal organizations:
(1) Review and decide whether to sponsor foreign, state, and
local government and private industry (including service providers)
requests for priority actions. Federal organizations forward
sponsored requests with recommendations for disposition to DHS. Such
recommendations are based on the categories and criteria in section
10 of this appendix.
(2) Forward notification of priority actions or denials of
requests for priority actions from DHS to the requesting foreign,
state, and local government and private industry entities.
(3) Cooperate with DHS during reconciliation, revalidation, and
audits.
c. Service users:
(1) Identify services requiring priority level assignments and
request and justify priority level assignments in accordance with
this appendix.
(2) Request and justify revalidation of all priority level
assignments at least every three years.
(3) For services assigned priority levels, ensure (through
contractual means or otherwise) availability of customer premises
equipment and wiring necessary for end-to-end service operation by
the service due date, and continued operation; and, for such
services in the Emergency NSEP category, by the time that providers
are prepared to provide the services. Additionally, designate the
organization responsible for the service on an end-to-end basis.
(4) Prepare to accept services assigned priority levels by the
service due dates or, for services in the Emergency NSEP category,
when they are available.
(5) Pay providers any authorized costs associated with services
that are assigned priority levels.
(6) Report to providers any failed or unusable services that are
assigned priority levels.

[[Page 39786]]

(7) Designate a 24-hour point-of-contact for matters concerning
each request for priority action and apprise DHS thereof.
(8) Upon termination of services that are assigned priority
levels, or circumstances warranting revisions in priority level
assignment (e.g., expansion of service), request and justify
revocation or revision.
(9) When NSEP treatment is invoked under section 8(c) of this
appendix, within 90 days following provisioning of the service
involved, forward to the Priority Services Program Office complete
information identifying the time and event associated with the
invocation and regarding whether the NSEP service requirement was
adequately handled and whether any additional charges were incurred.
(10) Cooperate with DHS during reconciliation, revalidation, and
audits.
(11) Comply with DHS policies and procedures that are consistent
with this appendix.
d. Non-federal service users, in addition to responsibilities
described above in section 5.c, obtain a sponsoring Federal
organization for all requests for priority actions. If unable to
find a sponsoring Federal organization, a non-federal service user
may submit its request, which must include documentation of attempts
made to obtain a sponsor and reasons given by the sponsor for its
refusal, directly to DHS.
e. Service providers:
(1) When NSEP treatment is invoked by service users, provision
NSEP services before non-NSEP services, based on priority level
assignments made by DHS. Service providers must:
(a) Promptly provide NSEP services. When limited resources
constrain response capability, providers will address conflicts for
resources by:
(i) Providing NSEP services in order of provisioning priority
level assignment, from highest (``E'') to lowest (``5'');
(ii) Providing Emergency NSEP services (i.e., those assigned
provisioning priority level ``E'') in order of receipt of the
service requests;
(iii) Providing Essential NSEP services that have the same
provisioning priority level in order of service due dates; and
(iv) Referring any conflicts which cannot be resolved (to the
mutual satisfaction of service providers and users) to DHS for
resolution.
(b) Comply with NSEP service requests by:
(i) Promptly providing Emergency NSEP services, dispatching
outside normal business hours when necessary;
(ii) Promptly meeting requested service dates for Essential NSEP
services, negotiating a mutually (authorized user and provider)
acceptable service due date when the requested service due date
cannot be met; and
(2) Restore NSEP services which suffer outage or are reported as
unusable or otherwise in need of restoration, before non-NSEP
services, based on restoration priority level assignments. (Note:
For broadband or multiple service facilities, restoration is
permitted even though it might result in restoration of services
assigned to lower priority levels along with, or sometimes ahead of,
some higher priority level services.) Restoration will require
service providers to restore NSEP services in order of restoration
priority level assignment'') by:
(a) Promptly restoring NSEP services by dispatching outside
normal business hours to restore services assigned Priority Level 1,
2, or 3, when necessary, and services assigned Priority Level 4 or 5
when the next business day is more than 24 hours away;
(b) Restoring NSEP services assigned the same restoration
priority level based upon which service can be first restored.
(However, restoration actions in progress should not normally be
interrupted to restore another NSEP service assigned the same
restoration priority level);
(c) Patching and/or rerouting NSEP services assigned restoration
priority levels when use of patching and/or rerouting will hasten
restoration; and
(d) Referring any conflicts which cannot be resolved (to the
mutual satisfaction of service providers and users) to DHS for
resolution.
(3) Respond to provisioning requests of authorized users and/or
other service providers, and to restoration priority level
assignments when an NSEP service suffers an outage or is reported as
unusable, by:
(a) Ensuring that provider personnel understand their
responsibilities to handle NSEP provisioning requests and to restore
NSEP service;
(b) Providing a 24-hour point-of-contact for receiving
provisioning requests for Emergency NSEP services and reports of
NSEP service outages or unusability; and
(c) Seeking verification from an authorized entity if legitimacy
of a priority level assignment or provisioning request for an NSEP
service is in doubt. However, processing of Emergency NSEP service
requests will not be delayed for verification purposes.
(4) Cooperate with other service providers involved in
provisioning or restoring a portion of an NSEP service by honoring
provisioning or restoration priority level assignments, or requests
for assistance to provision or restore NSEP services.
(5) All service providers, including resale carriers, are
required to ensure that service providers supplying underlying
facilities are provided information necessary to implement priority
treatment of facilities that support NSEP services.
(6) Preempt, when necessary, existing services to provide an
NSEP service as authorized in section 6 of this appendix.
(7) Assist in ensuring that priority level assignments of NSEP
services are accurately identified ``end-to-end'' by:
(a) Seeking verification from an authorized Federal government
entity if the legitimacy of the restoration priority level
assignment is in doubt;
(b) Providing to subcontractors and/or interconnecting carriers
the restoration priority level assigned to a service;
(c) Supplying, to DHS, when acting as a prime contractor to a
service user, confirmation information regarding NSEP service
completion for that portion of the service they have contracted to
supply;
(d) Supplying, to DHS, NSEP service information for the purpose
of reconciliation;
(e) Cooperating with DHS during reconciliation; and
(f) Periodically initiating reconciliation with their
subcontractors and arranging for subsequent subcontractors to
cooperate in the reconciliation process.
(8) Receive compensation for costs authorized through tariffs or
contracts by:
(a) Provisions contained in properly filed state or Federal
tariffs; or
(b) Provisions of properly negotiated contracts where the
carrier is not required to file tariffs.
(9) Provision or restore only the portions of services for which
they have agreed to be responsible (i.e., have contracted to
supply), unless the President's war emergency powers under section
706 of the Communications Act are in effect.
(10) Cooperate with DHS during audits.
(11) Comply with DHS policies or procedures that are consistent
with this appendix.
(12) Ensure that at all times a reasonable number of public
switched network services are made available for public use.
(13) Do not disclose information concerning NSEP services they
provide to those not having a need-to-know or that might use the
information for competitive advantage.
(14) Take all reasonable efforts to secure the confidentiality
of TSP information from unauthorized disclosure, including by
storing such information in a location and with security safeguards
that are reasonably designed to protect against lawful or unlawful
disclosure to company employees or service providers without a
legitimate need for this information, or other entities to which the
disclosure of this information would pose a threat to the national
security of the United States. Service providers will immediately
notify the FCC and DHS of any attempt to compel the disclosure of
this information and will coordinate with the FCC and DHS prior to
such disclosure. In emergency situations where prior notice is
impracticable, service providers will notify the FCC and DHS as soon
as possible, but no later than 48 hours after such disclosure, and
should accompany such notice with an explanation why prior notice
was not practicable.
(15) Comply with all relevant Commission rules regarding TSP.

6. Preemption of Existing Services

When necessary to provision or restore NSEP services, service
providers may preempt services they provide as specified below.
``Service user'' as used in this section means any user of a
telecommunications service or internet Protocol-based service,
including both NSEP and non-NSEP services. Prior consent by a
preempted user is not required.
a. Existing services may be preempted to provision NSEP services
assigned Priority Level E or restore NSEP services assigned Priority
Level 1 through 5 according to the following sequence:
(1) Non-NSEP services: If suitable spare services are not
available, non-NSEP services will be preempted. After ensuring a
sufficient number of public switched services are

[[Page 39787]]

available for public use, based on the service provider's best
judgment, such services may be used to satisfy a requirement for
provisioning or restoring NSEP services.
(2) NSEP services: If no suitable spare services or non-NSEP
services are available, existing NSEP services may be preempted to
provision or restore NSEP services with higher priority level
assignments. When this is necessary, NSEP services will be selected
for preemption in the inverse order of priority level assignment.
(3) Service providers who are preempting services will ensure
their best effort to notify the service user of the preempted
service and state the reason for and estimated duration of the
preemption.
b. Service providers may, based on their best judgment,
determine the sequence in which existing services may be preempted
to provision NSEP services assigned Priority Level 1 through 5.
Preemption is not subject to the consent of the user whose service
will be preempted.

7. Requests for Priority Assignments

All service users are required to submit requests for priority
assignments to DHS in the format and following the procedures that
DHS prescribes.

8. Assignment, Approval, Use, and Invocation of Priority Levels

a. Assignment and approval of priority levels. Priority level
assignments will be based upon the categories and criteria specified
in section 10 of this appendix. After invocation of the President's
war emergency powers, these requirements may be superseded by other
procedures issued by DHS.
b. Use of priority level assignments.
(1) All provisioning and restoration priority level assignments
for services in the Emergency NSEP category will be included in
initial service orders to providers. Provisioning priority level
assignments for Essential NSEP services, however, will not usually
be included in initial service orders to providers. NSEP treatment
for Essential NSEP services will be invoked and provisioning
priority level assignments will be conveyed to service providers
only if the providers cannot meet needed service dates through the
normal provisioning process.
(2) Any revision or revocation of either provisioning or
restoration priority level assignments will also be transmitted to
providers.
(3) Service providers shall accept priority levels and/or
revisions only after assignment by DHS.

Note: Service providers acting as prime contractors will accept
assigned NSEP priority levels only when they are accompanied by the
DHS designated service identification (i.e., TSP Authorization
Code). However, service providers are authorized to accept priority
levels and/or revisions from users and contracting activities before
assignment by DHS when service providers, users, and contracting
activities are unable to communicate with either the FCC or DHS.
Processing of Emergency NSEP service requests will not be delayed
for verification purposes.

c. Invocation of NSEP treatment. To invoke NSEP treatment for
the priority provisioning of an NSEP service, an authorized federal
employee within, or acting on behalf of, the service user's
organization must make a declaration to concerned service
provider(s) and DHS that NSEP treatment is being invoked. An
authorized invocation official is one who (1) understands how the
requested service ties to the organization's NSEP mission; (2) is
authorized to approve the expenditure of funds necessary for the
requested service; and (3) has operational responsibilities for
telecommunications procurement and/or management within the
organization.

9. Appeal

Service users or sponsoring Federal organizations may appeal any
priority level assignment, denial, revision, revocation, approval,
or disapproval to DHS within 30 days of notification to the service
user. The appellant must use the form or format required by DHS and
must serve the FCC with a copy of its appeal. Service users and
sponsoring Federal organizations may only appeal directly to the FCC
after DHS action on the appeal. Such FCC appeal must be filed within
30 days of notification of DHS's decision on appeal. Additionally,
DHS may appeal any FCC revisions, approvals, or disapprovals to the
FCC. All appeals to the FCC must be submitted using the form or
format required. The party filing its appeal with the FCC must
include factual details supporting its claim and must serve a copy
on DHS and any other party directly involved. Such party may file a
response within 20 days, and replies may be filed within 10 days
thereafter. The Commission will not issue public notices of such
submissions. The Commission will provide notice of its decision to
the parties of record. Any appeals to DHS that include a claim of
new information that has not been presented before for consideration
may be submitted at any time.

10. Categories, Criteria, and Priority Levels

a. General. NSEP TSP System categories and criteria, and
permissible priority level assignments, are defined and explained
below.
(1) The Essential NSEP category has four subcategories: National
Security Leadership; National Security Posture and U.S. Population
Attack Warning; Public Health, Safety, and Maintenance of Law and
Order; and Public Welfare and Maintenance of National Economic
Posture. Each subcategory has its own criteria. Criteria are also
shown for the Emergency NSEP category, which has no sub-categories.
(2) Priority Levels 1, 2, 3, 4, and 5 may be assigned for
provisioning and/or restoration of Essential NSEP services. However,
for Emergency NSEP services, Priority Level E is assigned for
provisioning, and Priority Levels 1, 2, 3, 4, and 5 may be assigned
for restoration of Emergency NSEP services.
(3) The NSEP TSP System allows the assignment of priority levels
to any NSEP service across three time periods, or stress conditions:
Peacetime/Crisis/Mobilization, Attack/War, and Post-Attack/Recovery.
It is expected that priority levels may be revised within the three
time periods by surviving authorized resource managers within DHS
based upon specific facts and circumstances.
(4) Service users may, for their own internal use, assign sub-
priorities to their services assigned priority levels. Receipt of
and response to any such sub-priorities is optional for service
providers.
(5) The following paragraphs provide a detailed explanation of
the categories, subcategories, criteria, and priority level
assignments, beginning with the Emergency NSEP category.
b. Emergency NSEP. Services in the Emergency NSEP category are
those new services so critical as to be required to be provisioned
at the earliest possible time, without regard to the costs of
obtaining them.
(1) Criteria. To qualify under the Emergency NSEP category, the
service must meet criteria directly supporting or resulting from at
least one of the following NSEP functions:
(a) Federal government activity responding to a Presidentially
declared disaster or emergency as defined in the Disaster Relief Act
(42 U.S.C. 5122).
(b) State or local government activity responding to a
Presidentially declared disaster or emergency.
(c) Response to a state of crisis declared by the National
Command Authorities (e.g., exercise of Presidential war emergency
powers under section 706 of the Communications Act.)
(d) Efforts to protect endangered U.S. personnel or property.
(e) Response to an enemy or terrorist action, civil disturbance,
natural disaster, or any other unpredictable occurrence that has
damaged facilities whose uninterrupted operation is critical to NSEP
or the management of other ongoing crises.
(f) Certification by the head or director of a Federal agency,
commander of a unified/specified command, chief of a military
service, or commander of a major military command, that the service
is so critical to protection of life and property or to NSEP that it
must be provided immediately.
(g) A request from an official authorized pursuant to the
Foreign Intelligence Surveillance Act (50 U.S.C. 1801 et seq. and 18
U.S.C. 2511, 2518, 2519).
(2) Priority Level Assignment.
(a) Services qualifying under the Emergency NSEP category are
assigned Priority Level E for provisioning.
(b) After 30 days, assignments of Priority Level E for Emergency
NSEP services are automatically revoked unless extended for another
30-day period. A notice of any such revocation will be sent to
service providers.
(c) For restoration, Emergency NSEP services may be assigned
priority levels under the provisions applicable to Essential NSEP
services (see section 10(c)). Emergency NSEP services not otherwise
qualifying for restoration priority level assignment as Essential
NSEP may be assigned Priority Level 5 for a 30-day period. Such 30-
day restoration priority level assignment will be revoked
automatically unless extended for another 30-day period. A notice of
any such revocation will be sent to service providers.

[[Page 39788]]

c. Essential NSEP. Services in the Essential NSEP category are
those required to be provisioned by due dates specified by service
users, or restored promptly, normally without regard to associated
overtime or expediting costs. They may be assigned Priority Level 1,
2, 3, 4, or 5 for both provisioning and restoration, depending upon
the nature and urgency of the supported function, the impact of lack
of service or of service interruption upon the supported function,
and, for priority access to public switched services, the user's
level of responsibility. Priority level assignments will be valid
for no more than three years unless revalidated. To be categorized
as Essential NSEP, a service must qualify under one of the four
following subcategories: National Security Leadership; National
Security Posture and U.S. Population Attack Warning; Public Health,
Safety and Maintenance of Law and Order; or Public Welfare and
Maintenance of National Economic Posture. (Note: Under emergency
circumstances, Essential NSEP services may be recategorized as
Emergency NSEP and assigned Priority Level E for provisioning.)
(1) National security leadership. This subcategory is strictly
limited to only those NSEP services essential to national survival
if nuclear attack threatens or occurs, and critical orderwire and
control services necessary to ensure the rapid and efficient
provisioning or restoration of other NSEP services. Services in this
subcategory are those for which a service interruption of even a few
minutes would have serious adverse impact upon the supported NSEP
function.
(a) Criteria. To qualify under this subcategory, a service must
be at least one of the following:
(i) Critical orderwire, or control services, supporting other
NSEP functions.
(ii) Presidential communications service critical to continuity
of government and national leadership during crisis situations.
(iii) National command authority communications service for
military command and control critical to national survival.
(iv) Intelligence communications service critical to warning of
potentially catastrophic attack.
(v) Communications service supporting the conduct of diplomatic
negotiations critical to arresting or limiting hostilities.
(b) Priority level assignment. Services under this subcategory
will normally be assigned Priority Level 1 for provisioning and
restoration during the Peace/Crisis/Mobilization time period.
(2) National security posture and U.S. population attack
warning. This subcategory covers additional NSEP services that are
essential to maintaining an optimum defense, diplomatic, or
continuity-of-government postures before, during, and after crises
situations. Such situations are those ranging from national
emergencies to international crises, including nuclear attack.
Services in this subcategory are those for which a service
interruption ranging from a few minutes to one day would have
serious adverse impact upon the supported NSEP function.
(a) Criteria. To qualify under this subcategory, a service must
support at least one of the following NSEP functions:
(i) Threat assessment and attack warning.
(ii) Conduct of diplomacy.
(iii) Collection, processing, and dissemination of intelligence.
(iv) Command and control of military forces.
(v) Military mobilization.
(vi) Continuity of Federal government before, during, and after
crises situations.
(vii) Continuity of state and local government functions
supporting the Federal government during and after national
emergencies.
(viii) Recovery of critical national functions after crises
situations.
(ix) National space operations.
(b) Priority level assignment. Services under this subcategory
will normally be assigned Priority Level 2, 3, 4, or 5 for
provisioning and restoration during Peacetime/Crisis/Mobilization.
(3) Public health, safety, and maintenance of law and order.
This subcategory covers NSEP services necessary for giving civil
alert to the U.S. population and maintaining law and order and the
health and safety of the U.S. population in times of any national,
regional, or serious local emergency. These services are those for
which a service interruption ranging from a few minutes to one day
would have serious adverse impact upon the supported NSEP functions.
(a) Criteria. To qualify under this subcategory, a service must
support at least one of the following NSEP functions:
(i) Population warning (other than attack warning).
(ii) Law enforcement.
(iii) Continuity of critical state and local government
functions (other than support of the Federal government during and
after national emergencies).
(vi) Hospitals and distributions of medical supplies.
(v) Critical logistic functions and public utility services.
(vi) Civil air traffic control.
(vii) Military assistance to civil authorities.
(viii) Defense and protection of critical industrial facilities.
(ix) Critical weather services.
(x) Transportation to accomplish the foregoing NSEP functions.
(b) Priority level assignment. Service under this subcategory
will normally be assigned Priority Levels 3, 4, or 5 for
provisioning and restoration during Peacetime/Crisis/Mobilization.
(4) Public welfare and maintenance of national economic posture.
This subcategory covers NSEP services necessary for maintaining the
public welfare and national economic posture during any national or
regional emergency. These services are those for which a service
interruption ranging from a few minutes to one day would have
serious adverse impact upon the supported NSEP function.
(a) Criteria. To qualify under this subcategory, a service must
support at least one of the following NSEP functions:
(i) Distribution of food and other essential supplies.
(ii) Maintenance of national monetary, credit, and financial
systems.
(iii) Maintenance of price, wage, rent, and salary
stabilization, and consumer rationing programs.
(iv) Control of production and distribution of strategic
materials and energy supplies.
(v) Prevention and control of environmental hazards or damage.
(vi) Transportation to accomplish the foregoing NSEP functions.
(b) Priority level assignment. Services under this subcategory
will normally be assigned Priority Levels 4 or 5 for provisioning
and restoration during Peacetime/Crisis/Mobilization.

0
4. Revise appendix B to part 64 to read as follows:

Appendix B to Part 64--Wireless Priority Service (WPS) for National
Security and Emergency Preparedness (NSEP)

1. Purpose and Authority

a. This appendix establishes rules, policies, and procedures and
outlines responsibilities for the Wireless Priority Service (WPS),
previously called Priority Access Service (PAS), to support the
needs of National Security Emergency Preparedness (NSEP) personnel.
WPS authorizes priority treatment to certain domestic
telecommunications services and internet Protocol-based services
(NSEP services) for which priority levels are requested, assigned,
and approved in accordance with this appendix.
b. This appendix is issued pursuant to sections 1, 4(i), 4(j),
4(n), 201-205, 251(e)(3), 254, 301, 303(b), 303(g), 303(r), 307,
308(a), 309(a), 309(j), 316, 332, 403, 615a-1, 615c, and 706 of the
Communications Act of 1934, as amended, codified at 47 U.S.C. 151,
154(i)-(j), (n), 201-205, 251(e)(3), 254, 301, 303(b), 303(g),
303(r), 307, 308(a), 309(a), 309(j), 316, 332, 403, 615a-1, 615c,
606; and Executive Order 13618. Under section 706 of the
Communications Act, this authority may be superseded by the war
emergency powers of the President of the United States.

2. Definitions

As used in this appendix:
a. Authorizing agent refers to a Federal or State entity that
authenticates, evaluates, and makes recommendations to DHS regarding
the assignment of priority levels.
b. Service provider (or wireless service provider) refers to a
provider of a wireless communications service or internet Protocol-
based service, including commercial or private mobile service. The
term includes agents of the licensed provider and resellers of
wireless service.
c. Service user means an individual or organization to whom or
which a priority access assignment has been made.
d. The following terms have the same meaning as in Appendix A to
part 64, as amended:
(1) Assignment;
(2) Government;
(3) internet Protocol-based services;
(4) National Coordinating Center for Communications (NCC);
(5) National Security Emergency Preparedness (NSEP) services
(excluding the last sentence);

[[Page 39789]]

(6) Reconciliation;
(7) Revalidation;
(8) Revision;
(9) Revocation.

3. Scope

a. Applicability. This appendix applies to the provision of WPS
by wireless service providers to users who qualify under the
provisions of section 6 of this appendix.
b. Eligible services. Wireless service providers may, on a
voluntary basis, give eligible users priority access to, and
priority use of, all secure and non-secure voice, data, and video
services available over their networks. Providers that elect to
offer these services must comply with all provisions of this
appendix.

4. Policy

WPS provides the means for NSEP users to obtain priority
wireless access to available radio channels when necessary to
initiate emergency communications. It does not preempt public safety
emergency (911) calls, but it may preempt or degrade other in-
progress voice calls. NSEP users are authorized to use priority
signaling to ensure networks can detect WPS handset network
registration and service invocation. WPS is used during situations
when network congestion is blocking NSEP call attempts. It is
available to authorized NSEP users at all times in markets where the
service provider has voluntarily elected to provide such service.
Priority Levels 1 through 5 are reserved for qualified and
authorized NSEP users, and those users are provided access to radio
channels before any other users.

5. Responsibilities

a. The FCC:
(1) Provides regulatory oversight of WPS.
(2) Enforces WPS rules and regulations, which are contained in
this appendix.
(3) Acts as final authority for approval, revision, or
disapproval of priority assignments by DHS and adjudicates disputes
regarding priority assignments and denials of such requests by DHS,
until superseded by the President's war emergency powers under
Section 706 of the Communications Act.
(4) Performs such functions as are required by law, including:
(a) with respect to all entities licensed or regulated by the
FCC: the extension of or change in network facilities; the
discontinuance, reduction, or impairment of interstate services; the
control of common carrier rates, charges, practices, and
classifications; the construction, authorization, activation,
deactivation, or closing of radio stations, services, and
facilities; the assignment of radio frequencies to licensees; the
investigation of violations of FCC rules; and the assessment of
communications service provider emergency needs and resources; and
(b) supports the continuous operation and restoration of
critical communications systems and services by assisting the
Secretary of Homeland Security with infrastructure damage assessment
and restoration, and by providing the Secretary of Homeland Security
with information collected by the FCC on communications
infrastructure, service outages, and restoration, as appropriate.
b. Authorizing agents:
(1) Identify themselves as authorizing agents and their
respective communities of interest to DHS. State authorizing agents
provide a central point of contact to receive priority requests from
users within their state. Federal authorizing agents provide a
central point of contact to receive priority requests from Federal
users or Federally sponsored entities.
(2) Authenticate, evaluate, and make recommendations to DHS to
approve priority level assignment requests using the priorities and
criteria specified in section 6 of this appendix. When appropriate,
authorizing agents recommend approval or denial of requests for WPS.
(3) Ensure that documentation is complete and accurate before
forwarding it to DHS.
(4) Serve as a conduit for forwarding WPS information from DHS
to service users and vice versa. Such information includes WPS
requests and assignments, reconciliation and revalidation
notifications, and other relevant information.
(5) Participate in reconciliation and revalidation of WPS
information at the request of DHS.
(6) Disclose content of the WPS database only to those having a
need-to-know.
c. Service users:
(1) Determine the need for and request WPS assignments in
accordance with the processes and procedures established by DHS.
(2) Initiate WPS requests through the appropriate authorizing
agent. DHS approves or denies WPS requests and may direct service
providers to remove WPS if appropriate. (Note: state and local
government and private users apply for WPS through their designated
state government authorizing agent. Federal users apply for WPS
through their employing agency. State and local users in states
where there has been no designation are sponsored by the Federal
agency concerned with the emergency function as set forth in
Executive Order 12656. If no authorizing agent is determined using
these criteria, DHS serves as the authorizing agent.)
(3) Submit all correspondence regarding WPS to the authorizing
agent.
(4) Participate in reconciliation and revalidation of WPS
information at the request of the authorizing agent or DHS.
(5) Request discontinuance of WPS when the NSEP qualifying
criteria used to obtain WPS is no longer applicable.
(6) Pay service providers as billed for WPS.
d. Service providers:
(1) Provide WPS only upon receipt of an authorization from DHS
and remove WPS for specific users at the direction of DHS.
(2) Ensure that WPS Priority Level 1 exceeds all other priority
services offered by WPS providers.
(3) Designate a point of contact to coordinate with DHS
regarding WPS.
(4) Participate in reconciliation and revalidation of WPS
information at the request of DHS.
(5) As technically and economically feasible, provide roaming
service users the same grade of WPS provided to local service users.
(6) Disclose information regarding WPS users only to those
having a need-to-know or who will not use the information for
economic advantage.
(7) Ensure that at all times a reasonable amount of wireless
spectrum is made available for public use.
(8) Notify DHS and the service user if WPS is to be discontinued
as a service.
(9) Comply with all relevant Commission rules regarding WPS.
e. An appropriate body identified by DHS will identify and
review any systemic problems associated with the WPS system and
recommend actions to correct them or prevent their recurrence.

6. WPS Priority Levels and Qualifying Criteria

a. The following WPS priority levels and qualifying criteria
apply equally to all users and will be used as a basis for all WPS
assignments. There are five levels of NSEP priorities, with Priority
Level 1being the highest. The five priority levels are:
(1) Executive Leadership and Policy Makers.
Users who qualify for the Executive Leadership and Policy Makers
category will be assigned Priority Level 1. A limited number of
technicians who are essential to restoring wireless networks shall
also receive this highest priority treatment. Users assigned to
Priority Level 1 receive the highest priority in relation to all
other priority services offered by WPS providers. Examples of users
who are eligible for Priority Level 1 include:
(i) The President of the United States, the Secretary of
Defense, selected military leaders, and the staff who support these
officials;
(ii) State governors, lieutenant governors, cabinet-level
officials responsible for public safety and health, and the staff
who support these officials; and
(iii) Mayors, county commissioners, and the staff who support
these officials.
(2) Disaster Response/Military Command and Control.
Users who qualify for the Disaster Response/Military Command and
Control category will be assigned Priority Level 2. This priority
level includes individuals who manage the initial response to an
emergency at the Federal, state, local, and regional levels.
Personnel selected for this priority level are responsible for
ensuring the viability or reconstruction of the basic infrastructure
in an emergency area. In addition, personnel essential to continuity
of government and national security functions (such as the conduct
of international affairs and intelligence activities) are also
included in this priority level. Examples of users who are eligible
for Priority Level 2 include personnel from the following
categories:
(i) Federal emergency operations center coordinators, e.g.,
Chief, Public Safety and Homeland Security Bureau (FCC); Manager,
National Coordinating Center for Communications; National
Interagency Fire Center, Federal Coordinating Officer, Director of
Military Support;

[[Page 39790]]

(ii) State emergency services directors, National Guard
leadership, Federal and state damage assessment team leaders;
(iii) Federal, state and local personnel with continuity of
government responsibilities;
(iv) Incident command center managers, local emergency managers,
other state and local elected public safety officials; and
(v) Federal personnel with intelligence and diplomatic
responsibilities.
(3) Public Health, Safety and Law Enforcement Command.
Users who qualify for the Public Health, Safety, and Law
Enforcement Command category will be assigned Priority Level 3. This
priority level includes individuals who conduct operations critical
to life, property, and maintenance of law and order immediately
following an emergency event. Examples of users who are eligible for
Priority Level 3 include personnel from the following categories:
(i) Federal law enforcement;
(ii) State police;
(iii) Local fire and law enforcement;
(iv) Emergency medical services;
(v) Search and rescue;
(vi) Emergency communications;
(vii) Critical infrastructure protection; and
(viii) Hospital personnel.
(4) Public Services/Utilities and Public Welfare.
Users who qualify for the Public Services/Utilities and Public
Welfare category will be assigned Priority Level 4. This priority
level includes individuals who manage public works and utility
infrastructure damage assessment and restoration efforts and
transportation to accomplish emergency response activities. Examples
of users who are eligible for Priority Level 4 include personnel
from the following categories:
(i) Army Corps of Engineers;
(ii) Power, water, and sewage;
(iii) Communications;
(iv) Transportation; and
(v) Financial services.
(5) Disaster Recovery.
Users who qualify for the Disaster Recovery category will be
assigned Priority Level 5. This priority level includes individuals
who manage a variety of recovery operations after the initial
response has been accomplished. These functions may include managing
medical resources such as supplies, personnel, or patients in
medical facilities. Other activities such as coordination to
establish and stock shelters, to obtain detailed damage assessments,
or to support key disaster field office personnel may be included.
Examples of users who are eligible for Priority Level 5 include
personnel from the following categories:
(i) Medical recovery;
(ii) Detailed damage assessment;
(iii) Emergency shelter; and
(iv) Joint Field Office support personnel.
b. These priority levels were selected to meet the needs of NSEP
users who manage and respond to national security and public safety
emergency situations, particularly during the first 24 to 72 hours
following an event.
c. The entities listed above are examples of the groups of users
who may qualify for each priority level. The lists are non-
exhaustive; other users may qualify for WPS, including those from
the critical infrastructure sectors identified in Presidential
Policy Directive 21. However, specific eligibility determinations
and priority level assignments are made by DHS.

7. Appeal

Service users and authorizing agents may appeal any priority
level assignment, denial, revision, or revocation to DHS within 30
days of notification to the service user. If a dispute still exists
following DHS action, an appeal may then be made to the FCC within
30 days of notification of DHS's decision. The party filing the
appeal must include factual details supporting its claim and must
provide a copy of the appeal to DHS and any other party directly
involved. Involved parties may file a response to the appeal made to
the FCC within 20 days, and the initial filing party may file a
reply within 10 days thereafter. The FCC will provide notice of its
decision to the parties of record. Until a decision is made, the
service will remain status quo.

8. Preemption or Degradation of Existing Services

Service providers may preempt or degrade in-progress voice,
data, text, and video communications from NSEP users assigned to any
priority level, except for public safety emergency (911)
communications, when necessary to prioritize eligible WPS
communications.
a. Service providers are not required to offer preemption or
degradation.
b. Preemption and degradation are authorized for all five
priority levels.
c. Preemption and degradation are not subject to the consent of
the user whose service will be preempted or degraded.

9. Priority Signaling

Service providers may offer priority signaling to ensure
networks can detect WPS handset registration and service invocation.

[FR Doc. 2022-14155 Filed 7-1-22; 8:45 am]
BILLING CODE 6712-01-P

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