Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Biennial Regulatory Review -- Amendment of ) Parts 0, 1, 13, 22, 24, 26, 27, 80,) WT Docket No. 98-20 87, 90, 95, 97, and 101 of the Commission's Rules) to Facilitate the Development and Use of the) Universal Licensing System in the Wireless) Telecommunications Services ) ) Amendment of the Amateur Service Rules to) WT Docket No. 96-188 Authorize Visiting Foreign Amateur Operators) to Operate Stations in the United States) RM-8677 ) MEMORANDUM OPINION AND ORDER Adopted: June 1, 1999 Released: June 9, 1999 By the Commission: Commissioner Furchtgott-Roth issuing a statement. I. INTRODUCTION 1. The Personal Radio Steering Group, Inc., ("PRSG") has requested a stay of the effective date of certain rule changes that went into effect on February 12, 1999, in connection with the captioned docket. On January 13, 1999, PRSG filed a Petition for Stay of the effective date of the rules pertaining to 47 C.F.R. Part 95, Subpart A, until the issues raised in its Petition for Reconsideration are addressed. The Petition for Stay is granted in part and denied in part for the reasons which follow. II. BACKGROUND 2. In the ULS Report and Order, we consolidated, revised, and streamlined our rules governing license application procedures for radio services licensed by the Wireless Telecommunications Bureau (WTB or Wireless Bureau). These rule changes will enable full implementation of the Universal Licensing System (ULS), the Commission's new automated licensing system and integrated database for wireless services. We also established procedures to ensure a smooth transition from the pre-existing licensing processes to the processes developed for ULS. In the ULS Report and Order, we noted that the development of ULS provided an opportunity to simplify and streamline the Commission's Rules in other ways as well. Thus, we consolidated the wireless radio services licensing rules in a single section of Part 1, to the extent practicable, and eliminated dozens of corresponding duplicative rules in other service-specific rule parts. In addition to proposing rule changes needed to fully deploy ULS, we also streamlined or eliminated technical data collection requirements in some services, and significantly streamlined the rules for the General Mobile Radio Service ("GMRS"). 3. The GMRS, a Part 95 Personal Radio Service, was originally established as the Citizens Class A Radio Service, and was allocated for use by individuals and entities who were not eligible for licensing in the public safety, industrial, and transportation services. We took the opportunity to re-evaluate GMRS in the context of the ULS proceeding in order to identify and eliminate regulations that have become unnecessary in the past decade. We also sought to adopt changes to ensure that the streamlined licensing process collects the minimum information needed of GMRS licensees and applicants consistent with our statutory responsibilities to license and regulate the use of this service. We neither altered eligibility requirements, permitted communications, the frequency allocation nor other rules that could fundamentally alter the purpose of GMRS. Further, we found that the effect of these rule changes will actually increase users' flexibility in using GMRS and will promote use of the service. III. DISCUSSION 4. Standard for Issuance of a Stay of Commission Rules. Although the Commission has declined to encode a single evidentiary standard for requests for injunctive relief, we generally consider the four criteria set forth in Virginia Petroleum Jobbers Ass'n v. FPC to evaluate requests for interim relief. These criteria are: (1) a likelihood of success on the merits; (2) the threat of irreparable harm absent the grant of preliminary relief; (3) the degree of injury to other parties if relief is granted; and (4) that the issuance of the order will further the public interest. A balancing of these interests then will be conducted in order to fashion an administrative response on a case-by-case basis; moreover, there is no requirement that there be a showing as to each single factor. If there is a particularly overwhelming showing in at least one of the factors, we may find that a stay is warranted notwithstanding the absence of another one of the factors. 5. PRSG Petition for Stay. In its Petition for Stay, PRSG argues that its Petition for Reconsideration is likely to prevail on the merits, that it will suffer irreparable harm if a stay is not granted, that other interested parties would not be harmed by the stay, and that the public interest favors grant of a stay. We find that PRSG has made a showing that a stay is appropriate with regard to one of the issues it raises, and we clarify the rules with regard to another one of the issues PRSG raises, but we deny its request for a stay as to the remainder of its issues. 6. PRSG argues that language retained in Section 95.29(e) has the effect of damaging the very result it was intended to effectuate. In particular, PRSG argues that if the 462/467.675 MHz frequency pair is reserved only for travellers' assistance or emergency use as specified by the rules adopted in the ULS proceeding, the effect will be to remove the availability of repeaters across the country. This is so, PRSG argues, because the new rules' effectiveness would require individuals using mobile units to discontinue use on the 462/467.675 MHz band immediately for purposes other than traveller's assistance and emergencies. The individuals who use this channel for their mobiles have constructed repeaters operating on the 462/467.675 MHz band channel nationwide, thus making this channel available for traveller's assistance and emergency use nationwide. It now appears that limiting the channel only to traveller's assistance or emergency use requires these individuals to retune their repeaters to another frequency to conduct their personal and family business. PRSG contends that such a result "would decrease the number of repeaters on the 675 channel pair nationally and would thereby substantially reduce the viability of this channel pair for emergency and traveller-assistance communications." We are persuaded that the public interest would be served by a further evaluation of the ramifications of adoption of Section 95.29(e) in light of the concerns raised in PRSG's Petition for Reconsideration and Petition for Stay. Accordingly, to avoid the need for current licensees using mobile units on the 462/467.675 MHz band to immediately discontinue other personal use operations in conjunction with repeaters on the 462/467.675 MHz band available for traveller's assistance and emergency use, and to allow the Commission to further evaluate the impact of Section 95.29(e) prospectively rather than after the fact, we find that it is in the public interest to stay Section 95.29(e) pending reconsideration. 7. PRSG also proposes new language for Section 95.29(a) in order to avoid confusion regarding the definition of channel pair and simulcasting. We believe that the addition of new language in the rules is a subject better addressed on reconsideration rather than by a stay order; thus, we decline to grant a stay of this rule for the reasons raised by PRSG. However, on our own motion, and in response to an ex parte communication raising an additional concern in connection with this rule section, we clarify that the "licensee" which is the subject of the rule section does not include grandfathered non-individual licensees. The restrictions pertaining to non-individual licensees remain in full force and effect, as specified in Section 95.5 of the Commission's Rules, and as discussed in the ULS Report and Order. A grandfathered non-individual licensee may use only the frequency(ies) for which it is currently licensed, and may not expand its operations to additional frequencies. We will consider any grandfathered licensee's use of GMRS frequencies, other than those for which it was specifically licensed when grandfathered, to be a violation of the our Rules prohibiting such licensees to make major modifications to their GMRS systems. 8. With regard to other arguments raised in its Petition for Reconsideration, PRSG has not identified an immediate public interest need to either clarify or stay the operation of the GMRS rules. PRSG makes general arguments that certain of the new rules are confusing or are in contradiction to other established Commission Rules and policies, and that it is in the public interest to stay the alleged improper or confusing rules until its Petition for Reconsideration is addressed. PRSG does not identify, in its Petition for Stay, any specific evidence for its claims that the remainder of the rule changes would have an immediate harm to the public or to licensees. We must balance our conclusion in this regard against the our finding, in general, that the GMRS rule changes will promote the usefulness of GMRS to licensees, while continuing to require them to meet the restrictions pertaining to this service. 9. Accordingly, except as discussed supra, we do not find that PRSG has satisfied the requirements for a stay of any other of the ULS rules pertaining to GMRS. First, PRSG has not shown that there is a likelihood of prevailing on the merits of its arguments. Second, PRSG has not shown that harm to the public interest nor to individual licensees will be caused by allowing the GMRS rule changes to go into effect. Third, in view of our goal of increasing the accessibility and usefulness of GMRS to licensees, we find no injury to existing and future licensees caused by implementation of the GMRS rule changes. Fourth, we do not find that it is in the public interest to grant a formal stay of the GMRS rule changes, except, as discussed, for Section 95.29(e). IV. CONCLUSION 10. We conclude, therefore, on balance, that PRSG has shown that it is in the public interest to stay the effectiveness of Section 95.29(e) of the Commission's Rules, 47 C.F.R.  95.29(e), in order to avoid the need for individuals to discontinue operations on repeaters which they also make available to the public for traveller's assistance and emergency use. However, with regard to other issues raised in its Petition for Stay, PRSG has not shown hardship or a potential for harm to the public interest that would justify ordering a stay of the effective date of the other GMRS rules. Allowing the remaining rule changes to go forward will not substantially harm either PRSG nor the public; indeed, we believe the public interest is furthered by the ULS rule changes. To the extent that other specific rule changes are challenged on reconsideration, we believe we may consider and address any concerns related to them without issuing a broad stay of the ULS rules. We therefore conclude that a stay will issue as to 47 C.F.R.  95.29(e), but not as to any other ULS rule change. We have also clarified that grandfathered non-individual users are not eligible to be licensed by rule, as are individual users, for frequencies other than those specified on their licenses at the time they were grandfathered. V. ORDERING CLAUSES 11. IT IS ORDERED pursuant to Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 161, 303(g), 303(r), 332(c)(7), that the Petition for Stay filed by the Personal Radio Steering Group, Inc. on January 13, 1999, IS GRANTED IN PART AND DENIED IN PART, as discussed herein, and will be in effect until the Commission resolves the Petitions for Reconsideration of the Report and Order in this proceeding. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary Statement of Commissioner Harold W. Furchtgott-Roth Re: 1998 Biennial Regulatory Review -- Amendment of Parts 0, 1, 13, 22, 24, 26, 27, 80 87, 90, 95, 97, and 101 of the Commission's Rules to Facilitate the Development and Use of the Universal Licensing System in the Wireless Telecommunications Services (WT Docket No. 98-20) Today's decision stems from a proceeding initiated as part of the Commission's 1998 Biennial Review, which was conducted pursuant to Section 11(a) of the Act, Id. at Sect. 161(a). However, as thoroughly described in my Report on Implementation of Section 11 by the Federal Communications Commission (Dec. 21, 1998), which can be found on the FCC WWW site at , I believe that the 1998 Section 11(a) review was not as thorough as it should have been. I look forward to working with the chairman and other commissioners on the 2000 Biennial Review, planning for which should begin in mid-1999. * * * * * * *