MEMORANDUM

TO:                  Judy Harkins
                        Gregg Vanderheiden
                        RERC on Telecommunications Access 
            Karen Peltz Strauss
                        KPS Consulting 
Re:                   Summary of Petition for Rulemaking of the Cellular Telecommunications
                        & Internet Association, filed April 29, 2002

                        (Petition not yet released for public comment - no comment dates set)

I.  Background

            On April 29, 2002, the Cellular Telecommunications and Internet Association (CTIA) filed a petition for rulemaking with the Federal Communications Commission (FCC).  The petition asks the Commission to repeal or modify all regulations affecting wireless (CMRS) carriers that it says are no longer in the public interest.  Listed among these regulations are rules issued under Section 255, Section 251 (prohibiting telecommunications carriers from installing network, features, functions or capabilities that do not comply with Section 255 guidelines), and the E911 rules (requiring TTY access to wireless emergency services).  Additionally, the petition asks the Commission not to extend disability access mandates to broadband or information services, and not to apply requirements for backward compatibility to digital wireless services (which presumably includes mandates for hearing aid access to wireless digital handsets).    CTIA has sought expedited review of these regulations.

CTIA’s request is being made pursuant to the FCC’s obligation under Section 11 of the Communications Act.  Section 11 directs the Commission, in every even-numbered year (beginning with 1998), to review all regulations that apply to the providers of telecommunications services, and to determine whether any of those regulations are “no longer necessary in the public interest as the result of meaningful economic competition between providers of the service.”  The Commission is directed to “repeal or modify” any of these regulations that are no longer necessary in the public interest. 

II.  CTIA Interpretation of Section 11

In conducting its regulatory review, CTIA asks the Commission to follow the decision of a recent U.S. Court of Appeals case, Fox Television Stations, Inc. v. FCC.  CTIA interprets that case to require the FCC to retain rules only when they are “necessary” to serve the public interest, not when they merely serve the public interest.  In the Fox case, the U.S. Court of Appeals struck down a rule prohibiting a company from owning both a cable system and a broadcast television station in the same local area.

CTIA says that statements made by the Commission support its interpretation of the Fox standard.  Specifically, the petition cites to a recent Memorandum of Law in which the Commission stated:  “The Fox decision could be read to mean that the Commission must repeal a rule under Section [11] unless it can conclude…that the rule is indispensable or essential to achieving its regulatory goal…or unless it could satisfy the higher standard of showing that the rule was ‘necessary,’ in the sense of vital or indispensable, to fostering diversity or competition.”  The petition notes that the Fox court had criticized the Commission’s narrow reading of how it was to conduct its biennial reviews.  Rather than take a “wait-and-see” attitude, CTIA reports that the court likened Congress’s mandate to conduct these reviews to “Farragut’s order at the battle of Mobile Bay (‘Damn the torpedoes!  Full speed ahead.’).  The petition goes on to quote the court as stating that “a regulation should be retained only insofar as it is necessary in, not merely consonant with, the public interest.”

CTIA says that it agrees with comments made by Chairman Powell that the Fox decision creates “‘a substantially higher burden on the FCC to justify the rules it chooses to keep in place.”  Accordingly, CTIA asks the FCC to “limit government regulation to instances where there is an identifiable market failure.” It suggests that the Fox decision “could require the Commission to repeal any rule in the biennial review process “unless it could satisfy the higher standard of showing that the rule was ‘necessary,’ in the sense of vital or indispensable,” in order to remove regulatory obstacles to vigorous competition.

III.  Repeal or Modification of Disability Rules

CTIA maintains that competition, rather than regulation, offers the best way to bring wireless technological innovations to people with disabilities.  It says that the Commission’s E911 rules requiring TTY access to wireless digital services and Section 255 rules relegate the disability community to “antiquated technology” which fails to bring wireless technological innovations to consumers with disabilities.  The result of this “heavy-handed regulation,” it says, is that wireless carriers have had to invest substantial resources in technical solutions that require “backward compatibility” with advanced digital technologies.  CTIA says this regulatory policy has resulted in “inefficient and short term solutions” that do not meet the needs of consumers.   It requests the Commission to “eliminate accessibility rules that impose backward compatibility solutions on advanced digital technologies.”   

CTIA asks the Commission to adopt a regulatory philosophy that “encourages consumers with disabilities to migrate from antiquated technologies to advanced digital technologies that offer the functions and benefits they desire.”  As an example, CTIA cites to SMS messaging, and its success in Europe and Asia among individuals with hearing disabilities.  It also cites to the Commission’s recent decision to permit cost recovery for IP relay.

CTIA goes on to say that the convergence of telecommunications and information services creates competitive alternatives that make the need for separate rules under Title II (i.e., rules that cover telecommunications services) no longer necessary.  It asks the Commission not to adopt regulations that could hurt the “development of innovative services” as the FCC determines the appropriate regulatory treatment for information and broadband services.  It further asks the Commission to treat telecommunications and information services alike, and not to apply Section 255 to either of these types of services.  Finally, it says that the Commission should modify its rules under Section 251 (the network accessibility rules) to the extent that there are “competitive services being offered by non-telecommunications carriers.”  CTIA concludes by noting that these and other regulations are “no longer necessary in the public interest and must be repealed or modified under the biennial review required by Section 11.”

Finally, CTIA asks the Commission to apply this Section 11 standard to the Part 22 rule changes proposed in the FCC’s 2000 Biennial Review.  Among other things, that proceeding was considering elimination of the analog rule, requiring transmission of analog wireless services.

This summary was prepared as part of the RERC on Telecommunications Access, a joint project of Gallaudet University and the Trace Center, University of Wisconsin-Madison under funding from the National Institute on Disability and Rehabilitation Research (NIDRR) of the US Dept of Education Grant H133E990006.  The opinions offered herein are those of the author and do not necessarily represent those of the RERC on Telecommunications Access, the Universities or funding agencies.

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