Subject: [NEXTEL-1] Amendment of Part 95 of the Commission’s Rules To Establish a Very Short Distance Two-way Voice Radio Service (FRS) RM-10564

From: [email-masked]
Date: Wed, 21 Apr 2004 20:57:36 -0400

Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of

INDUSTRIAL TELECOMMUNICATIONS
ASSOCIATION, INC.

Amendment of Part 95 of the Commission’s Rules To Establish a Very Short
Distance Two-way Voice Radio Service RM-10564

ORDER

Adopted:  April 19, 2004 Released:  April 21, 2004

By the Chief, Public Safety and Critical Infrastructure Division,
Wireless Telecommunications Bureau:

1. Introduction.  On August 22, 2002, Industrial Telecommunciatons
Association, Inc. (ITA) filed a petition for rulemaking requesting that
the Commission amend Section 95.401(b) of the Commission’s Rules.
Specifically, ITA requests that Commission amend its Part 95 rules to
prohibit daily business communications on the Family Radio Service (FRS)
frequencies.   Because we believe that ITA has not presented sufficient
evidence to warrant altering the current FRS rules, we deny the ITA
Petition.

2. Background.  In 1996, the Commission established the FRS as a very
short range, two-way voice personal radio service.   The FRS Report and
Order established the FRS primarily on the basis that it would fill a
market niche in short distance, personal communications needs.   The FRS
shares two small frequency bands with the General Mobile Radio Service
(GMRS).   It was envisioned that the FRS would provide an affordable and
convenient means of direct, short-range two-way voice communications
among small groups of persons, including families, with minimal
regulation.

3. On August 21, 2000, ITA filed a Petition for Clarification requesting
that the Commission clarify that its rules for the FRS prohibit use of
FRS spectrum for daily business-oriented operations.   On April 3, 2001,
the former Public Safety and Private Wireless Division,  Wireless
Telecommunications Bureau (Division) denied the petition, stating that
in the FRS Report and Order the Commission had stated that the FRS is an
affordable and convenient means of direct, short range two-way voice
communications amoung small groups of persons, with minimal
regulation.   It was further noted that there is nothing in the rules
that states that small groups of persons who work together, as compared
to other small groups of persons, are prohibited from using FRS.   In
addition, the Division explained that such a distinction would appear to
be inconsistent with the “minimal regulation” that the Commission
envisioned for the service.

4. Discussion.  On August 22, 2002, ITA filed a petition for rulemaking
which seeks to amend Section 95.401(b) of the Commission’s Rules  to
prohibit daily business communications on FRS frequencies.   ITA states
that it is concerned about the unlicensed mix of business and personal
users.  In this regard, ITA asserts that traditional businesses are
using FRS units for daily business needs and thereby limiting the
ablility of others to engage in the personal communications that the
Commission envisioned for FRS.   ITA contends that business users need
communications five to seven days a week on a year-round basis, whereas
the typical user of FRS equipment uses it on an informal basis, maybe a
few times a day, sporadically throughout the year.   ITA believes that
the overutilization of this spectrum by businesses will lead to
underutilization of the FRS spectrum by the intended users.   According
to ITA, because FRS can also be used to send emergency messages and
assist travelers, the absence of business users would make the FRS
spectrum more readily available for the intended users
(families)--leading to a potentially safer environment for each type of
user, personal and business, and satisfying the public interest overall.

5. ITA also expresses concern that businesses that use the FRS could be
using their system for safety of life communications, general safety
applications in a manufacturing plant, or for maintenance purposes on an
assembly line.  It contends that such uses require more reliable and
accurate communications with minimal interference and with a longer
range of service than FRS offers.   Therefore, according to ITA,
business users should be barred from FRS and required to be licensed on
spectrum designated for traditional business communications.   ITA
further asserts that the public interest in restricting business
communications far outweighs the Commission’s objective of minimal
regulation of FRS.

6. On September 17, 2002, the Commission sought comment on the ITA
Petition.   Several commenters agree with ITA that (a) FRS frequencies
are further degraded when businesses use FRS equipment interchangeably
with traditional business radios; (b) business users should meet their
communciations needs with an authorization in the Private Land Mobile
Radio (PLMR) Service, which would be more reliable, effective and
efficient; and (c) FRS radios put employees at risk in some work
environments, i.e., in a combustible atmosphere such as auto
manufacturing plants, and oil and gas refineries.   Upon reviewing the
record in this proceeding, we are not persuaded that these arguments
warrant amendment of the Part 95 rules to provide for a broad
prohibition of business use of FRS frequencies.

7. With respect to the argument that business use of FRS is crowding the
Commission’s intended users off the channels, we first reiterate that
the Commission intended for the FRS to be available to all groups, with
no express exclusion of business use.   Indeed, as the Personal Radio
Steering Group (PRSG) points out,  the Commission specifically indicated
in the Regulatory Flexbility Analysis for the FRS Report and Order that
small businesses may use the FRS in their business activities.
Moreover, we are not persuaded, based on the record in this proceeding,
that business use of FRS channels is adversely affecting non-business
users.  PRSG states that, while FRS congestion does exist in some areas
(primarily in and near sports and recreational facilities, theme parks
and shopping malls), little of the congestion is attributable to
recurrent business or commercial use.   Another commenter asserts that
FRS frequencies are uncongested even in dense metropolitan areas, and
that if such congestion existed it would drive the business use off the
band.   He contends that business use of FRS frequencies tends to be
single-site communications within a single store, plant or adjacent
parking lot, and that the small footprint of such operation makes it
unlikely that any business use of FRS could cause the sort of channel
congestion described by ITA.

8. We also note that GMRS licensees, who, as noted above, share channels
with FRS users, are permitted to conduct business communications.   No
commenter has suggested that business use of GMRS channels has adversely
restricted availability for non-business users, or that there is any
reason to allow GMRS licensees to use shared FRS/GMRS channels for
business communications while prohibiting a FRS user from doing the
same.

9. With respect to the appropriateness of FRS frequencies for business
use, we concur with ITA that FRS spectrum may not be suitable for all
business communications needs.  For example, entities requiring high
reliability and instant communications may find that utilizing a
licensed PLMR station more effectively meets their communications
needs.  However, we note that many small businesses (or units of large
businesses) may not need the range and reliability available with
conventional PLMR bands.  We agree with those commenters who argue that
businesses that can tolerate the small footprint (short range),
frequency sharing, and lack of privacy should be able to continue to use
FRS as originally intended.   We nonetheless note that some may find
that the Multi-Use Radio Service (MURS), a VHF service that, like FRS,
is licensed by rule, better meets their needs.   Further, we believe
that businesses with more complex communications needs will most likely
utilize a radio service other than the FRS. In this connection, business
users may find MURS frequencies more suitable than FRS spectrum because
the majority of MURS users are likely to be other businesses with
similar and compatible communications needs.   In addition, we recognize
that some businesses need intrinsically safe radios, because of their
particular working environment.   Based on our review of the record in
this proceeding, we conclude that the selection of the most appropriate
radio service to meet the particular communications needs of a business
is best left to the individual businesses.

10. Conclusion.  We do not find sufficient reason in the ITA Petition,
or in the comments filed in support thereof, to broadly prohibit any use
of FRS spectrum for daily business-oriented operations.  ITA has not
provided factual data or evidence to support its claim of FRS spectrum
congestion as a result of business-related communications. Instead, it
offers hypothetical scenarios which do not constitute actual data
derived from monitoring FRS traffic.  Nor does the record reflect any
comments or claims by FRS users that business use is detrimental to the
utility of the FRS.  The FRS has proven to be an affordable and
convenient means of direct, short range two-way voice communications
among small groups of persons (including businesses) with minimal
regulation.  We recognize that there are many business uses for which
FRS is not appropriate.  Entities requiring greater reliability or
robustness than the FRS provides should examine other options.  We
believe that we should afford businesses the flexibility to decide
whether FRS is an appropriate means of satisfying any of their daily
business communications needs, based on their particular circumstances
and requirements.  Accordingly, we deny the ITA Petition.

11. IT IS ORDERED that, pursuant to Sections 4(i), 4(j), and 303(r) of
the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j),
and 303(r), and Section 1.401(e) of the Commission’s Rules, 47 C.F.R. §
1.401(e), the petition for rulemaking filed by the Industrial
Telecommunications Association, Inc., RM-10564, on August 22, 2002, IS
HEREBY DENIED.

12. This action is taken under delegated authority pursuant to Sections
0.131 and 0.331 of the Commission's Rules, 47 C.F.R. §§ 0.131,
0.331.              FEDERAL COMMUNICATIONS COMMISSION

D'wana R. Terry
Chief, Public Safety and Critical Infrastructure Division
Wireless Telecommunication Bureau

http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-04-1035A1.doc
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