Federal Communications Commissionfcc 13-4

Federal Communications CommissionFCC 13-4

Before the

Federal Communications Commission

Washington, D.C. 20554

REPORT AND ORDER

Adopted: January 8, 2013 Released: January 8, 2013

By the Commission:

I.iNTRODUCTION

1. In this Report and Order, we amend our rules concerning commercial radio operator licenses for maritime and aviation radio stations. Our rules require that a person who operates, maintains, or conducts the mandatory inspection of certain maritime and aviation radio stations hold an appropriate commercial radio operator license. In the Notice of Proposed Rule Making (NPRM) in this proceeding,[1] the Commission proposed changes to Part 13 of the Commission’s Rules regarding commercial radio operator licensing, and to related rules in Parts 0, 1, 80, and 87 regarding certain functions performed by licensed commercial radio operators, to determine which rules could be clarified, streamlined, or eliminated in order to reduce administrative burdens and make the rules easier to use.
2. We now adopt rule changes that were either proposed in or suggested in response to the NPRM, including (1) consolidating the three classes of radiotelegraph operator’s certificates; (2) eliminating redundant and outdated restrictive endorsements; (3) modifying certain procedural and recordkeeping requirements applicable to commercial operator license examination managers (COLEMs); and (4) clarifying the rules that pertain to log-keeping requirements. In addition, we decline to change the current process for maintaining question pools, and the rules that pertain to equipment testing intervals.

II.BACKGROUND

1. A commercial radio operator license is required to operate certain ship, aircraft, and ground stations[2] and to repair and maintain maritime and aviation radio stations.[3] In addition, only technicians holding an appropriate commercial radio operator license may conduct compulsory ship inspections.[4] There currently are eleven classes of commercial radio operator licenses and six types of endorsements.[5] Part 13 sets forth eligibility requirements for the different classes of commercial radio operator licenses and permits and prescribes the manner and conditions under which commercial radio operators are licensed.
2. In the NPRM in this proceeding, the Commission proposed changes to the Part 13 rules regarding commercial radio operator licensing and to related rules in Parts 0, 1, 80, and 87. In particular, it proposed changes to the rules regarding radiotelegraph operator’s certificates, restrictive endorsements, question pools, and procedural and recordkeeping requirements applicable to COLEMs. The Commission also asked for comment on any other changes, corrections, or clarifications of the rules governing commercial radio operators that commenters believed were needed. Seventeen parties submitted comments or reply comments.[6]

III. DISCUSSION

A.Commercial Operator Licensing Issues

1.Radiotelegraph Operator’s Certificates

1. Background. A radiotelegraph operator’s certificate authorizes the holder to operate, repair, and maintain ship and coast radiotelegraph stations in the maritime services (and to operate certain radiotelephone stations), but radiotelegraphy generally has been replaced in the maritime services by the Global Maritime Distress and Safety System (GMDSS).[7] The Commission currently issues three classes of radiotelegraph operator certificates.[8] First and Second Class Radiotelegraph Operator’s Certificates convey equivalent authority.[9]Applicants for Second Class Radiotelegraph Operator’s Certificates must pass written Elements 1 (basic radio law and operating practice), 5 (radiotelegraph operating practice), and 6 (advanced radiotelegraph), and Telegraphy Elements 1 and 2.[10] Applicants for First Class Radiotelegraph Operator’s Certificates must pass the same written elements, in addition to Telegraphy Elements 3 and 4,[11] and have one year of experience in sending and receiving public correspondence by radiotelegraph.[12] Applicants for Third Class Radiotelegraph Operator’s Certificates, which convey less authority, must pass written Elements 1 and 5, as well as Telegraphy Elements 1 and 2.[13] Over the five-year period ending December 31, 2011, the Commission issued two First Class Radiotelegraph Operator’s Certificates, seventy-four Second Class Radiotelegraph Operator’s Certificates, and seven Third Class Radiotelegraph Operator’s Certificates. Over the first six months of 2012, the Commission issued no First Class Radiotelegraph Operator’s Certificates, seven Second Class Radiotelegraph Operator’s Certificates, and one Third Class Radiotelegraph Operator’s Certificate.
2. The NPRM proposed to consolidate the three classes of radiotelegraph operator’s certificates into a single class.[14] Specifically, the Commission proposed to cease granting new First Class Radiotelegraph Operator’s Certificates because the one-year experience requirement is almost impossible to meet, given that ships no longer maintain radiotelegraph stations, and very few radiotelegraph coast stations (typically historic preservation efforts) still operate. The Commission also proposed to cease granting new Third Class Radiotelegraph Operator’s Certificates because they now, as a practical matter, convey the same authority as a Marine Radio Operator Permit, for which applicants need to pass only written Element 1.[15] In addition, it sought comment on whether radiotelegraph operator’s certificates, which currently are granted for a five-year license term, should be valid for the lifetime of the holder, as is the case for other commercial operator licenses.[16] Lastly, it sought comment on whether to eliminate the prohibition[17] on holding a radiotelegraph operator’s certificate simultaneously with certain other commercial radio operator licenses.[18]
3. Discussion. As supported by the commenters,[19] we will consolidate First Class Radiotelegraph Operator’s Certificates and Second Class Radiotelegraph Operator’s Certificates into a new license class, the Radiotelegraph Operator License.[20] Radiotelegraph Operator License applicants will be required to pass written Elements 1 and 6, and Telegraphy Elements 1 and 2.[21] Upon the effective date of the rules adopted herein, we will cease accepting applications for new First and Second Class Radiotelegraph Operator’s Certificates, and existing First and Second Class Radiotelegraph Operator’s Certificates will be renewed as Radiotelegraph Operator Licenses.[22]
4. We also will cease accepting applications for new Third Class Radiotelegraph Operator’s Certificates. Existing Third Class Radiotelegraph Operator’s Certificates will be renewed as Marine Radio Operator Permits.[23] Holders of Third Class Radiotelegraph Operator’s Certificates that are renewed as Marine Radio Operator Permits will retain element credit for having passed Telegraphy Elements 1 and 2, so they (but not other Marine Radio Operator Permit holders) will be able to upgrade to a Radiotelegraph Operator License by passing written Element 6, just as Third Class Radiotelegraph Operator’s Certificate holders currently must pass written Element 6 to upgrade to a Second Class Radiotelegraph Operator’s Certificate.
5. Commenters also support the Commission’s proposal to issue radiotelegraph operator’s certificates for the lifetime of the holder.[24] As the Commission concluded with respect to other commercial operator license classes, “the renewal process imposes an unnecessary paperwork and filing fee burden on licensees inasmuch as licensees’ continued competency is not assessed in any way upon renewal, and because there appears to be no reason to treat these licenses differently in this connection from those that already have lifetime terms.”[25] We believe that it is in the public interest to reduce this administrative burden. Therefore, after the rule changes adopted herein take effect, Radiotelegraph Operator Licenses (both new licenses and those issued upon the renewal of a First or Second Class Radiotelegraph Operator’s Certificate[26]) will be issued without an expiration date.[27] Current Third Class Radiotelegraph Operator’s Certificates that are renewed as Marine Radio Operator Permits also will be issued without an expiration date, like other Marine Radio Operator Permits.
6. Finally, we eliminate the prohibition on simultaneously holding a radiotelegraph operator’s certificate and another unexpired radiotelegraph operator’s certificate, a Marine Radio Operator Permit, or a Restricted Radiotelephone Operator Permit. As the Commission noted in the NPRM, the origin of this prohibition is unclear, and it does not appear to serve any current purpose.[28]

2.Other Licensing Issues

1. As proposed in the NPRM, we amend Section 13.7 of the Commission’s Rules to eliminate certain obsolete license endorsements. Marine Radio Operator Permits and General Radiotelephone Operator Licenses currently bear endorsements stating that the license does not confer authority to operate a broadcast station.[29] The Commission explained that these endorsements no longer serve any purpose, because no commercial operator license of any kind is now required to operate a broadcast station.[30] Section 13.7 also provides that the commercial operator license of a person with “an uncorrected physical handicap” is valid only for equipment installation, service, and maintenance, but not for operating duties.[31] In the NPRM, the Commission noted that commercial operator license examinations are now administered by COLEMs rather than by Commission staff, so Commission licensing staff cannot determine whether a licensee has a disqualifying disability, and that in any event this determination should be left to employers on a case-by-case basis.[32] Commenters support the proposals to eliminate these endorsements,[33] and we amend Section 13.7 accordingly.[34]
2. We also amend Section 13.10 of the Commission’s Rules,[35] which already requires licensees to specify a valid mailing address, to provide that the Commission can suspend a commercial radio operator license if Commission correspondence is returned as undeliverable because the applicant failed to provide a correct address.[36] This proposal[37] was supported by the commenters.[38]

B.COLEM Issues

1. An applicant must pass a written examination in order to obtain most types of commercial radio operator licenses.[39] The questions for each examination are taken from common Commission-approved question pools[40] that are updated periodically.[41] In 1993, the Commission delegated the preparation and administration of commercial operator license examinations to COLEMs.[42]The COLEM organization must sign an agreement with the Commission to coordinate the examinations, agree not to discriminate in the coordination of the examinations, and maintain examination and financial records and make them available to the Commission.[43]

1.Maintenance of Question Pools

1. The Commission retained responsibility for maintaining the question pools, and delegated authority to modify the question pools to what is now the Wireless Telecommunications Bureau (Bureau).[44] The Bureau currently reviews and approves updates proposed by private entities or individuals, but no longer generates question pools itself.[45] In the NPRM,the Commission proposed to amend the rules to make the COLEMs responsible for maintaining the question pools.[46] It noted that the volunteer examiner-coordinators (VECs) that administer examinations for amateur radio operator licenses maintain the question pools for those examinations[47] through the Question Pool Committee (QPC) of the National Conference of Volunteer Examiner-Coordinators (NCVEC). The Commission stated that this arrangement has allowed timelier updates of the amateur question pools than if Commission action were required.[48]
2. Although commenters offer conditional support for the proposal, we decline to delegate responsibility for maintaining the question pools for commercial radio operator license examinations. Commenters note that the COLEMs currently have nothing analogous to the QPC or the NCVEC, the formation of which would require time and funding.[49] They also distinguish VECs from COLEMs in that VEC personnel are likely to be experienced amateur radio operators, while COLEMs are more often test administration entities with staffs that lack special expertise in the operation, maintenance, or inspection of maritime or aviation radio stations.[50] One COLEM even states that delegating authority for maintaining the question pools would not necessarily result in the pools being updated any faster.[51] Based on the record before us, we conclude that the possible benefits to examinees (in terms of accurate, timely question pools) of delegating responsibility for maintaining the question pools for commercial radio operator license examinations would not be commensurate with the administrative and financial burdens that it would impose on COLEMs. We therefore decline to revise the rules as proposed in the NPRM and will retain the current process for maintaining the question pools,[52] which we believe has functioned adequately.[53]

2.Other COLEM Issues

1. We revise certain procedural requirements applicable to COLEMs, as proposed in the NPRM.[54] We shorten the time in which COLEMs are required by Section 13.211(e) of our Rules[55] to notify examinees of their examination results (and issue a proof-of-passing certificate to successful examinees) from ten days to three business days. We amend Section 13.13 of our Rules[56] to require COLEMs filing applications on behalf of applicants to submit the information electronically. Section 13.217 of our Rules[57] requires COLEMs to retain “records of expenses and revenues, frequency of examinations administered, and examination pass rates.” We conclude that COLEMs no longer need to submit this information to the Bureau on a regular basis; instead, it must be submitted only upon Commission request. This will reduce COLEMs’ administrative burden but, because the information will no longer be submitted regularly, we amend the rule to require them to retain the information for three years instead of the current one-year retention period. Finally, we will no longer require COLEMs to obtain Commission approval to change their fees for administering examinations. Going forward, COLEMs need only notify the Bureau of changes in their fee structure.[58] We believe that fees will remain reasonable due to prospective examinees generally having a choice of COLEMs.

C.Equipment Testing and Logging Requirements

1. Because this proceeding relates to duties performed by commercial radio operator license holders, the NPRM requested comment on harmonizing and perhaps consolidating the Part 80 rules for testing maritime radio equipment and logging the test results.[59] In particular, the Commission solicited comment on proposals by Owen Anderson and Kurt Anderson regarding the equipment testing and logging requirements.[60] For reasons discussed below, we decline to adopt most of their proposed rule changes, but we do amend Part 80 in some respects in accord with their comments.[61]
2. We agree with Kurt Anderson that Section 80.409[62] can be clarified, and we restructure the rule along the general lines he proposes so that the logging requirements are grouped more logically by subject matter and the applicability of the logging requirements to different classes of vessels is clearer.[63] We decline to adopt his other log-keeping proposals, however, because we conclude that they are either unsupported,[64] contrary to the goal of easing log-keepers’ burdens,[65] duplicative of existing rules,[66] vague,[67] or previously addressed.[68]
3. We also find that the current record does not justify changing any of the equipment testing intervals set forth in Part 80. In response to Kurt Anderson’s comments, we clarify that there is no contradiction between Section 80.409(e)(5)(iii), which calls for weekly log entries that portable survival craft radio equipment has been tested, and Section 80.1095(c), which provides that survival craft equipment must be tested at intervals not to exceed twelve months.[69] The annual GMDSS test requires checks of frequency tolerance, power output, modulation, battery manufacture date, and half-life date;[70] the weekly obligation is to conduct an operational test of the survival craft transmitter and receiver to determine that the equipment remains in operating condition.[71] Similarly, we find no conflict between the annual 406 MHz emergency position indicating radiobeacon (EPIRB) testing mandated by the Part 80 rules,[72] and the National Oceanographic and Atmospheric Administration (NOAA) and Coast Guard monthly testing requirements.[73] The monthly testing called for by NOAA and the Coast Guard involves a visual inspection of the device as well as the EPIRB self-test contained in the manufacturer’s instructions,[74] while the annual testing mandated by Part 80 is more detailed and rigorous, encompassing “all aspects of operational efficiency with particular emphasis on frequency stability, signal strength and coding.”[75] We decline to adopt the remainder of the Andersons’ proposals, as either inconsistent with other decisions herein,[76] previously rejected,[77] or previously implemented.[78]

D.Administrative Issues

1. Finally, we make several administrative amendments to the Rules. Part 0 of our Rules currently lists the oversight of the privatized ship radio safety inspection program[79] and the granting of extensions of ship safety certificates as functions of the Enforcement Bureau.[80] In fact, however, the Wireless Telecommunications Bureau now exercises primary responsibility in these areas. We amend Part 0 accordingly. In addition, as proposed in the NPRM,[81] we (1) delete Section 0.489 of the Commission’s Rules, pertaining to applications for ship radio inspections; (2) replace the term “physical handicap” with “physical disability;”[82] (3) delete obsolete references to an old information bulletin,[83] the Public Safety and Private Wireless Division,[84] Part 23 international fixed public radio services,[85] Subpart Q of Part 80,[86] and written Element 2;[87] and (4) streamline Sections 13.9, 13.17, and 13.209 by consolidating certain paragraphs.[88]
2. The procedural rule changes adopted herein generally reduce burdens on licensees and COLEMs by eliminating certain filing requirements. Other rule changes clarify, streamline, or eliminate existing obligations and thereby reduce administrative burdens and make the rules easier to use and understand. The only potential costs that have been identified, the requirement on COLEMs to keep records for three years, are minimal. We therefore conclude that the benefits of the changes adopted herein outweigh any potential costs.

IV.REGULATORY MATTERS

1. Regulatory Flexibility Analysis. The Regulatory Flexibility Act of 1980, as amended (RFA),[89] requires that a regulatory flexibility analysis be prepared for notice-and-comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.”[90] As required by the RFA,[91] the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) of the possible significant economic impact on small entities of the rules adopted in this Report and Order. The analysis is found in Appendix B. The Commission will send a copy of this Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration.
2. Paperwork Reduction Analysis. This document contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. Specifically, the item requires COLEMs filing applications on behalf of applicants to submit the information electronically. It has been or will be submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees. In the present document, we have assessed the effects of our requirements that COLEMs filing applications on behalf of applicants submit the information electronically, and believe the burden will be minimal. We find that these requirements will not impose a substantial burden on businesses with fewer than 25 employees.
3. Congressional Review Act. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act (“CRA”).[92]
4. Alternative Formats. To request materials in alternative formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to <> or call the Consumer and Government Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). This Report and Order also may be downloaded from the Commission’s web site at <

V.ORDERING CLAUSES

1. Accordingly, IT IS ORDERED that, pursuant to the authority of Sections 4(i), 303(r), and 332(a)(2) of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r), 332(a)(2), Parts 0, 1, 13, 80, and 87 of the Commission's Rules ARE AMENDED as set forth in the attached Appendix C effective thirty days after publication in the Federal Register, except for Sections 1.913(d)(1)(vi), 13.13(c), and 13.9(c), which contain modified information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act. The Federal Communications Commission will publish a document in the Federal Register announcing such approval and the relevant effective date.
2. IT IS FURTHER ORDERED that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

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