******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect or Word to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Teletouch Licenses, Inc. Fee Payment for Notification of Permissive Modification to Relocate the 152.57 MHz Base Station of Paging and Radiotelephone Service Station KNKD849 at Denton, Texas ) ) ) ) ) ) Fee Control Nos. 000000BCB-97-054 9611088130542002 MEMORANDUM OPINION AND ORDER Adopted: July 24, 2001 Released: July 27, 2001 By the Commission: 1. This memorandum opinion and order denies an application for review filed by Teletouch Licenses, Inc. (TLI) of a letter ruling by the Acting Associate Managing Director for Operations (Managing Director). That decision denied TLI's petition for reconsideration of a determination by the Billings and Collections Branch (Branch) that the $45.00 fee payment associated with TLI's FCC Form 489 notification to the Commission of the relocation of base station KNKD849 was deficient by $235.00. We find that TLI's FCC Form 489 notification was subject to a $280.00 filing fee and that the payment was deficient by $235.00. We direct TLI to remit the balance of the fee payment owed in the amount of $235.00 within 30 days of this order. Background 2. On November 7, 1996, TLI filed FCC Form 489 notifying the Commission that TLI had relocated the 152.57 MHz base station KNKD849 (a Paging and Radiotelephone Service station) to Denton, Texas (Form 489 notification). On December 17, 1996, the Branch determined that the $45.00 fee payment associated with TLI's Form 489 notification was deficient by $235.00 and the Branch assessed TLI the balance owed. In its petition for reconsideration of the Branch's action, TLI asserted that the relocation of its base station constituted a minor modification subject to a $45.00 filing fee under section 8 of the Communications Act of 1934, as amended (the Act), 47 U.S.C. 158. In denying TLI's petition, the Managing Director determined that TLI's relocation of base station KNKD849 constituted a major modification subject to a $280.00 filing fee under section 8 of the Act and section 1.1102(50)(b) of the Commission's rules, 47 C.F.R. 1.1102(50)(b). TLI filed an application for review of that decision. Discussion 3. We find that TLI's Form 489 notification is subject to a $280.00 fee as a "Fill-in Transmitter" filing under section 8(g) of the Act, 47 U.S.C. 158(g), and section 1.1102(50)(c) of the rules, 47 C.F.R. 1.1102(50)(c). Section 8 specifies separate fees for applications and other filings in, inter alia, the Domestic Public Land Mobile Stations services, including separate fees for fill-in transmitters, major modifications, and minor modifications. The filing fees for fill-in transmitters, major modifications, and minor modifications for 1996 (the period at issue here) were $280.00, $280.00, and $45.00, respectively, under Section 1.1102 of the Commission's rules. 4. The applications and other filings subject to filing fees under section 8 are not defined in section 8 of the Act or in the Commission's rules implementing section 8 (see 47 C.F.R. Part 1, Subpart G). In 1990, however, the Common Carrier Bureau issued a Public Notice clarifying the term "fill-in transmitters" in the Domestic Public Land Mobile Service for purposes of section 8 of the Act and our implementing rules. In relevant part, the Fill-in Transmitter Public Notice stated that: applicants proposing . . . to relocate an existing transmitter . . . such that the new contour is totally within the presently authorized service contour [as is the case here involving TLI's relocation of base station KNKD849], must pay [the fee established by the Commission for fill-in transmitters] (effective May 21, 1990). On April 24, 1996, the Wireless Telecommunications Bureau issued a Memorandum Opinion and Order reiterating that applicants proposing to relocate a base station (where the new contour is within the old contour) are required to pay the filing fee established for fill-in transmitters in the Commission's rules. TLI filed Form 489 on November 7, 1996 to notify the Commission that TLI had relocated base station KNKD849 and that the relocated transmission is wholly within the authorized service contour. We therefore find that, consistent with the Fill-in Transmitter Public Notice and the New Hampshire MO&O, TLI was required to pay the $280.00 filing fee established for fill-in transmitters pursuant to section 8 of the Act and section 1.1102(50)(c) of the rules. 5. We disagree with TLI's assertion that the classification of fill-in transmitters as set forth in the Fill-in Transmitter Public Notice required public notice and comment under section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553, and that the definition is inconsistent with section 8 of the Act. Section 553(b)(3)(A) of the APA permits agencies to dispense with the usual notice and comment procedures in rulemakings if the rules are "interpretative rules." Interpretative rules are agency statements of general effect in which the agency announces an interpretation of a statute or of another rule. Interpretative rules thus serve an advisory function by explaining the meaning given to a particular word or phrase in a statute or rule that an agency administers. The definition of the term fill-in transmitter in the Fill-in Transmitter Public Notice clarified the meaning of the term under section 8 of the Act, and did not create any new rights or duties or otherwise change existing rights and duties. We therefore find that the clarification of the term fill-in transmitter under the statute is an interpretative rule excepted from the notice and comment requirements under the APA. Moreover, this interpretation was reiterated in the Bureau's decision in the New Hampshire MO&O. We further find that, in the absence of a specific statutory definition in section 8, the Fill-in Transmitter Public Notice provided a reasonable clarification of the term fill-in transmitter and is consistent with the legislative history and congressional intent underlying the statutory fee schedule in section 8 of the Act. In this regard, we note that TLI does not assert that it lacked actual notice of the clarification of the term fill-in transmitter as set forth in the public notice at the time that TLI filed its Form 489 notification. 6. Contrary to TLI's assertion, the fact that TLI's base station relocation constituted a minor modification under sections 22.123 and 22.163 for purposes of the Part 22 rules does not mean that the relocation of base station KNKD849 is subject to the $45.00 filing fee for minor modifications under section 1.1102(50)(h) of the rules governing filing fees. The separate statutory filing fee for fill-in applications is not dependent on whether the application constitutes a major amendment or a minor amendment. As discussed above, we have specifically stated that "within contour" relocations of existing base stations are subject to the filing fee established by the Commission for fill-in transmitters pursuant to section 8 of the Act. We have also stated that, although licensees file minor modifications for such relocations of base stations, they must pay a filing fee equivalent to a major amendment (i.e., the $480.00 fee for fill-in transmitters). The fact that the relocation of base station KNKD849 constitutes a minor modification for purposes of the Part 22 rules is therefore not relevant under the circumstances to determining the applicable filing fee under section 8 of the Act and section 1.1102 of the rules. 7. Also contrary to TLI's assertion, the fact that the Commission has not amended its application fee rules to specify that minor modifications that do not require prior Commission approval (such as TLI's Form 489 notification) are subject to a $280.00 filing fee is not indicative that it would be allowable to accept a $45.00 minor modification filing fee for "within contour" base station relocations. We stated in the Fill-in Transmitter Public Notice and reiterated in New Hampshire MO&O that such relocations constituted fill-in transmitters for purposes of the determining filing fees under section 8 of the Act and our implementing rules. Amendment of our rules was and is therefore unnecessary to specify that such relocations are subject to a $280.00 filing fee. 8. ACCORDINGLY, IT IS ORDERED that the application for review filed on April 27, 1998 by Teletouch Licenses, Inc. IS DENIED. 9. IT IS FURTHER ORDERED that Teletouch Licenses, Inc. IS DIRECTED to remit the balance of the fee payment owed in the amount of $235.00, and to file a completed FCC Form 159 ("Remittance Advice") within 30 days of the release of this memorandum opinion and order. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary